By James Hollis ([email protected])
Who is the lawsuit aiming to help?
We are looking to assist individuals whose prospective employers registered them for the H-1B Fiscal Year 2022 Lottery but who were not selected during the first selection period. This lawsuit does NOT cover cases of individuals who were selected in the current or previous H-1B lotteries whose petitions were denied.
What is the legal basis for the suit?
We will be seeking four things in this litigation through a preliminary injunction:
- We will ask the judge to declare that the H-1B lottery allowing multiple application per individual is illegal under the statute (INA 214(g)(7)), as the law require that selection be based on individuals, not company applications;
- We will ask the judge to declare that the regulation creating the lottery in 2005 was never finalized under the Administrative Procedures Act (APA) and is thus illegal (it remains an “interim rule” in violation of the APA);
- We will ask the judge to declare that the cap gap rules protect all individuals who registered for the H-1B lottery through the final round of the lottery, NOT just individuals who were selected in the first round;
- We will ask the judge to require USCIS to provide public information about the number of individuals notified of their selection in the “first” round and provide transparent information about the selection process.
What remedy is being sought by the litigation? What does a win look like?
We will be seeking a preliminary injunction, meaning that we will ask the court to act immediately to provide the relief we are seeking. This remedy is necessary given the nature and timing of this year’s H-1B lottery selection process.
Why is the case not being handled as a class action?
We have made the decision, as of now, not to handle the case as a class action because we believe this will slow the case down and we may have less flexibility in the types of remedies available to us.
Where is the case being filed?
We will likely file the case in the Federal Court in the District of Columbia, although we may file in the Western District of Maryland.
How long will it take to get results?
We anticipate filing our complaint by the end of June. We expect a hearing on a preliminary injunction within a three to six weeks of that filing. This is the hearing where a judge can order temporary relief until the case eventually gets to trial. For most cases, this is actually a more critical finding than the eventual decision in the case.
The preliminary injunction should provide our plaintiffs with a better chance of selection during the second round of the FY 2022 H-1B Lottery. But, there is NO guarantee that this action will be successful nor that it will provide a positive effect for this year’s lottery applicants. We believe it will, however, provide notice to the USCIS that it must change the selection process for future H-1B visa “lotteries” to be individual based rather than employer based.
Will there be a risk of backlash if I participate in the case?
We have found over the years that the opposite tends to be the case. People who file a lawsuit are likely to get better treatment than people who don’t. Knowing that an applicant is not afraid to sue usually means that the litigant will be treated respectfully. Note that we are filing to improve the chances of selection in the subsequent round of FY 2022 H-1B Lottery selections and in future lotteries. This lawsuit will not fix errors in registrations or problems in cases that have been selected.
What are the odds of success?
Any lawyer who promises success in litigation is not serving a client well. Litigation is unpredictable by its nature. We do not know which judge will be assigned to the case, for example. We do know that this Administration has not chosen to contest other related regulations created by the Trump Administration and we have prevailed against them in similar cases. So, we are optimistic, but we do not believe it is appropriate to quantify that.
What is the charge to participate in the litigation?
We are now charging each plaintiff $500 to participate in the case. The fee is a one-time charge and we will not be billing for additional expenses and legal fees. The fee is due at the outset. We will be tracking our hours for this case and if someone who retains us withdraws shortly after submitting the representation agreement and payment, but before filing, we would be able to offer a partial refund. However, once the complaint has been drafted and filed with the court all fees will be considered earned and no refunds will be issued after that point. Please note we are moving quickly on this lawsuit and aim to file the complaint by the end of June.
How will communications work?
We will have a weekly Zoom call to brief plaintiffs on the progress in the case and answer questions. We don’t have the capacity to speak to clients by phone as questions arise and request that people either email their questions or wait until the weekly Zoom call.
What if I already have a lawyer or have filed a mandamus case?
We are not representing you with respect to your individual case and cannot advise on your individual case strategy. If you are represented by counsel, you should talk about the pluses and minuses of joining the lawsuit and whether it makes sense for you. If you are already independently pursuing a mandamus action, you would not be able to be a plaintiff in this case.