Earlier this year, on June 2, 2016,a lawsuit against the USCIS was filed in federal court alleging the H-1B cap isunlawful because federal law requires H-1B applications be processed on a firstcome/first serve basis. 

The lawsuit was filed as a classaction, a legal procedure which allows multiple individuals with the samegrievance(s) to join together and file one lawsuit.  The case was filed by two employers and twoH-1B workers whose cases were not selected in the H-1B cap.

The USCIS filed a motion to havethe lawsuit thrown out of court, stating the H-1B workers cannot sue becausethey are not in the US and that the H-1B employers have not been injured by theH-1B lottery system.  On September 23,2016, the federal judge in the case rejected these arguments and indicated the case will move forward.

If the lottery system is ended, thelawsuit argues that the USCIS should give priority dates to H-1Bs and processthe cases in the order received, similar to how green cards are issued.  Alternative approaches which have beensuggested by various stakeholders include:
  •           Raising the H-1B cap to a higher number
  •           Basing the number of H-1Bs on the demand in the USeconomy
  •           Creating H-1B cap exemption for those in STEMfields
  •           Creating H-1B cap exemption for Schedule Aoccupations (currently RNs and PTS)
  •           Creating H-1B cap exemption for those with a USmaster’s degree or greater