Tag Archive for: Priority Date

Cyrus Mehta

Still Disadvantaged Even When Your Priority Date Becomes Current

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By Cyrus D. Mehta and Kaitlyn Box*

Individuals who are caught in the employment-based immigrant visa backlogs must navigate myriad issues that are associated with waiting for their priority dates to become current and applying for adjustment of status. Generally, it is cause for celebration when these individuals’ priority dates  become current, as then are eligible to apply for adjustment of status. When the Final Action Date becomes current, the individual should receive permanent residence.  But a Final Action Date becoming current can also bring about a number of additional issues that must be considered carefully. In our previous blog, we discussed the problems that can arise when workers do not apply for adjustment of status within one year of their priority date becoming current. For individuals who are the beneficiaries of more than one I-140 petition, another set of questions can come about when one I-140 is current but the other is not.

Pursuant to § 104(c) of the American Competitiveness in the 21st Century Act (AC21), an individual who is the beneficiary of an I-140 petition and would be eligible for adjustment of status “but for application of the per country limitations applicable to immigrants”, is eligible for extensions of his nonimmigrant status in three-year increments until the adjustment of status application has been processed. Similarly, 8 CFR § 214.2(h)(13)(iii)(E) provides that “an alien who currently maintains or previously held H-1B status, who is the beneficiary of an approved immigrant visa petition…and who is eligible to be granted that immigrant status but for application of the per country limitation, is eligible for H-1B status beyond the 6-year limitation…”. 8 CFR §214.2(h)(13)(iii)(E) plainly requires that an individual must be the beneficiary of an approved I-140 petition under the first, second, or third preference category in order to obtain H-1B extensions beyond the sixth year, but provide little further guidance, especially concerning individuals who may the beneficiaries of more than one I-140 petition.

One conundrum arises when an individual is the beneficiary of two approved I-140s, one under EB-2 and the other under EB-3, but she has filed her adjustment of status application in connection with only one of I-140s and the other remains unutilized. In recent months, EB-2 dates have raced ahead while EB-3 dates have retrogressed, so many individuals’ priority dates may have become current under the second preference category, but are not current under the third. If an adjustment applicant has already filed her I-485 in connection with her approved EB-2 I-140, may she still seek a three-year extension of her H-1B status based on her EB-3 I-140, which is not current? The language of AC21 § 104(c), and 8 CFR §214.2(h)(13)(iii)(E) do not seem to prohibit an application for an extension in this scenario. The regulations do not specify that the individual seeking an H-1B extension must not have another I-140 petition that is current, or must be seeking adjustment of status pursuant to the same I-140 petition being utilized for the H-1B extension.

Another difficult situation arises when an individual is similarly the beneficiary of two approved I-140s, one under EB-2 and one under EB-3, but filed his adjustment of status application in conjunction with the EB-3 I-140 when his priority date was current, but it has now retrogressed. If this individual’s priority date has become current under EB-2, he would likely want to consider filing a transfer of underlying basis request to connect his adjustment of status application to the EB-2 I-140 instead, hopefully ensuring more expeditious approval. Complications arise, however, when an applicant in this situation has not yet filed a transfer of underlying basis request but also wants to seek an H-1B extension beyond the sixth year based on the EB-3 I-140, which is no longer current. Given the ambiguity regarding USCIS stating that the 180 day portability clock starts again upon an interfiling request, some have chosen not to interfile and remain in EB-3 especially when they have changed to new employers.  As in the above-described scenario, the regulations may not preclude an individual in this situation from seeking a three-year H-1B petition.

Individuals who find themselves in this situation may find some refuge in AC21 § 106, which states that an H-1B nonimmigrant may receive extensions of status in one-year increments if more than one year has passed since either the labor certification or the I-140 has been filed. Even if the labor certification and/or I-140 petition have been approved, the individual can continue obtaining one-year extensions until an adjustment of status application can be filed. An individual whose priority date is current cannot ensure continued H-1B extensions by delaying filing an adjustment of status application, though. Proof must also be provided that the worker applied for adjustment of status within one year of his priority date becoming current, and if not, demonstrate that the failure to apply was due to circumstances beyond her control. To err on the side of caution, individuals who are the beneficiaries of one I-140 petition that is current and another that is not may consider requesting a three-year extension of H-1B status, but disclosing the existence of the second I-140 and asking in the alternative that USCIS grant a one-year extension, provided that either the labor certification or the I-140 petition was filed more than one year before the individual’s sixth or final year in H-1B status. Adopting this approach could prevent an outright denial of the petition if USCIS declines to approve a three-year extension.

In addition to requiring frequent renewal, one-year H-1B extensions are subject to other pitfalls as well. If H-1B visa holders are confined to one-year extensions of their statuses, H-4 spouses seeking initial EADs are disadvantaged. Many are in this situation as the USCIS has been so slow in approving adjustment applications even when the Final Action Dates have been current for several months.   Based on current USCIS processing times, an initial application for an H-4 EAD can take up to 8.5 months to be issued. Because the expiration date of the EAD will be tied to the validity of the H-1B petition itself, an EAD based on a one-year H-1B extension might only be valid for a couple of months by the time it is issued. Similarly, it can take several months for EADs and advance parole based on a pending adjustment application to be issued, potentially leaving H-4 spouses without work authorization if the H-4 EAD is issued with a very limited validity.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Filing an EB-1 as a Multinational Manager After the Approval of an EB-2 for a Backlogged Indian Beneficiary

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It requires skill and creativity to assist Indians caught in the employment based backlogs to find ways speed up the process or ameliorative solutions. The India employment-based second preference (EB-2) and employment-based third preference (EB-3) dates have barely moved for years, and the prospects for a beneficiary of an I-140 petition born in India for obtaining permanent residence anytime soon are bleak.

One strategy is to file an I-140 petition in the employment-based first preference (EB-1) for an individual who is stuck in the EB-2.  Under the State Department November 2919 Visa Bulletin, the Final Action Date for EB-2 India is May 13, 2009. The Final Action Date for EB-1 India is January 1, 2015. Since it is possible to capture the earlier priority date of the EB-2, a successful filing under EB-1 can assist the person to escape the backlog and gain permanent residency more quickly.

Take for instance Sunil Kumar who already has an approved I-140 under EB-2 with a priority date of January 1, 2012. His employer, ACB Corp. sponsored him through the labor certification process as a Systems Analyst. ABC Corp. wishes to promote Sunil to the position of Vice President, Cloud Projects. Under the new position, Sunil will be required to manage all cloud based projects of ABC Corp’s Fortune 500 corporate clients. Sunil will oversee subordinate managers and professional employees, mainly software developers and systems analysts, in this new position of Vice President, Cloud Projects.

Before moving ahead, an important caveat: Sunil and his fact pattern is a made up for purposes of illustrating a legal strategy. Any resemblance to actual persons, entities or actual events is purely coincidental.

Prior to coming to the US, Sunil was employed with ABC Pvt. Ltd. in India, a wholly owned subsidiary of ABC Corp., in the position of Systems Analyst from January 1, 2008 to December 31, 2010. He entered the US in H-1B status on January 1, 2011 to work for ABC Corp as a Systems Analyst.

In order to sponsor an employee under INA 203(b)(1)(C) as a multinational manager or executive for permanent residency (EB-1C), not only must the proposed position in the US be managerial or executive in nature, but the prior employment in the qualifying entity in India should have also been managerial or executive in nature for one year in the past three years, which as will be explained below, can be tolled in certain circumstances. While Sunil was employed as a Systems Analyst at the qualifying entity in India with no obvious managerial duties, towards the end of his employment in India, from October 1, 2009 till December 31, 2010, due to his talent and acumen, Sunil was assigned to manage important migration projects on behalf of ABC Pvt. Ltd. clients in India even though he was not formally employed as a manager. While the title of his position remained Systems Analyst, Sunil managed other professional employees with respect to various complex migration projects that he successfully completed on behalf of his employer.

While Sunil was in H-1B status and performed his duties in an exemplary manner, ABC Corp decided to sponsor Sunil for permanent residency for the position of Systems Analyst.  A PERM labor certification was filed on Sunil’s behalf on January 1, 2012, and after it got approved, an I-140 petition under EB-2 was also filed and easily got approved. The PERM labor certification that supported the I-140 under EB-2 required a Bachelor of Computer Science degree plus five years of progressively responsible experience as a systems analyst. The five years of experience described in Column K of the PERM labor certification for Sunial included managing technology migration projects for large corporate clients. The 15 months of Sunil’s employment at ABC Pvt Ltd. in India from October 1, 2009 to December 31, 2010 could have been viewed as managerial, but an I-140 under EB-1C was not contemplated in 2012 since the position of Systems Analyst in the US was not managerial. Moreover, it was not clear then whether the duties in India during the last fifteen months of his employment would be considered managerial as he was not formally employed as a manager. It was also not conceivable then that the EB-2 would languish in the backlogs until 2019 and beyond.  At the present time, however, ABC Corp. is very keen on promoting Sunil to the position of Vice President, Cloud Projects, which is clearly a managerial position.

Sunil potentially qualifies under EB-1C based on the proposed position of Vice President in the US and his prior managerial experience in India from October 1, 2009 to December 31, 2010. Although the qualifying experience at the foreign entity must be for one year in the past 3 years, the “one of three year” requirement may be met even if the person is in the United States for more than three years if s/he is working for the same employer, affiliate, or subsidiary in the United States and was employed for at least one of the last three by company abroad before entering in valid nonimmigrant status. 8 C.F.R. §204.5(j)(3)(i)(B).  Sunil has been in valid H-1B status from January 1, 2011 till today for ABC Corp, which is a wholly owned subsidiary of ABC Pvt. Ltd in India. Although the six year limitation under H-1B has long since gone, he has been able to obtain 3 year extensions pursuant to § 104(c) of the American Competitiveness in the 21st Century Act by virtue of his approved I-140 under the India EB-2, which has not yet become current.  Thus, the experience that Sunil obtained from October 1, 2009 to December 31, 2010 would potentially be qualifying experience for classification as a multinational executive or manager under EB-1C. Although Sunil was admittedly a first level supervisor,  INA § 101(a)(44)(A)(iv) states that “[a] managerial employee must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees are professionals.” Since Sunil managed professional employees, a case can be made that he was engaged in qualifying managerial role.

Sunil also has a daughter, Sujata, who is going to turn 21 on January 1, 2020. Pursuant to the current I-140 under EB-2, there is no hope that Sunil’s daughter will be able to protect her age under the Child Status Protection Act, codified at INA §203(h). If ABC Corp. files a new I-140 under EB-1C, however, even if Suneeta crosses 21 on January 1, 2020, once the EB-1C is approved and captures the EB-2 priority date of January 1, 2012 (and the priority date of January 1, 2012 for  EB-1 India continues to remain current), any time between the filing of the I-140 petition and the approval of the I-140 petition can be subtracted from Sujata’s age pursuant to INA §203(h)(1)(A)&(B). As long as the I-140 was filed prior to her 21st birthday, even if it gets approved after her 21st birthday, that time can be subtracted from her age and artificially bring the age under 21. Sunil may also file an I-485 application for adjustment of status concurrent with the I-140 petition under EB-1C, and corresponding I-485 applications can be filed by his daughter, Sujata, and his spouse, Suneeta. The USCIS allows such an I-485 filing concurrently with an I-140 udder EB-1C if it is clearly explained that the EB-2 priority date  will be captured upon the approval of the EB-1C.  While Suneeta has work authorization under the H-4 EAD rule,  8 CFR § 214.2(h)(9)(iv), she is nervous that she will not be able to continue to have it as the Trump administration has declared its intention to rescind the rule. Suneeta will be able to obtain an EAD based on her I-485 pursuant to 8 CFR § 274a (12)(c)(9). Unlike the renewal of an H-4 EAD, an EAD obtained based through I-485 gets automatically renewed for 180 days provided the renewal is filed prior to the expiration of the initial EAD.

If the I-140 under EB-1 gets approved, the January 1, 2012 priority date of the EB-2 will transfer to the EB-1, and Sunil, Suneeta and Sujata will get permanent residency once their I-485 applications are approved.

This strategy assumes that like Sunil, a backlogged beneficiary under EB-2, had qualifying managerial experience with a related foreign entity prior to being employed in the US, and the experience indicated in the PERM labor certification is consistent with the qualifying experience that will be indicated in support of the I-140 under EB-1C. The USCIS also strictly scrutinizes the managerial role of the beneficiary at both the qualifying foreign entity and the proposed managerial role in the US. Many similar cases have been arbitrarily denied even where a strong case was made demonstrating the managerial role at both entities.  Still, those whose facts are similar to Sunil can try to file a new I-140 under EB-1. Even if the beneficiary does not have prior qualifying managerial experience at the related foreign entity, if he or she has attained recognition in cloud related projects and can qualify as a person of extraordinary ability under INA 203(b)(1)(A) (EB-1A), an I-140 petition can be attempted  under EB-1A. An EB-1A I-140 filed as a person of extraordinary ability is also very difficult to obtain, and the USCIS routinely denies such petitions. Yet another more safe approach is to transfer the employee to the foreign related entity in an executive or managerial capacity for one year, and then file an EB-1C after the completion of one year of qualifying employment. However, this strategy will not help if there is a child who is imminently aging out and uprooting a family for one year from the US is less than ideal.

Still, when one’s back is against the wall, and there is a child who is aging out, it is worth trying every legitimate measure permissible under the law. My good colleague Brent Renison has also suggested creative solutions for surviving spouses and children who will age out.  If there were no country cap, Indians would not be so badly affected and Sunil with a priority date of January 1, 2012 under EB-2 would have by now had a green card, and also likely become a US citizen, and so would his wife and daughter. Until country caps are eliminated through the passage of S386, or S2603, although S386 has a significantly better chance of passing than S2603, Indians will continue to languish in the EB backlogs. A lucky few may be able to escape the backlogs by filing EB-1 petitions, but not everybody will be eligible to do so.

(This blog is for informational purposes and is not intended to constitute legal advice).

Cyrus Mehta

The Guide for the Perplexed – Who is Stuck in the Green Card Backlogs

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“In the realm of Nature there is nothing purposeless, trivial, or unnecessary” ― Maimonides, The Guide for the Perplexed

David Bier of the Cato Institute in No One Knows How Long Legal Immigrants Will Have To Wait  calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards.” This is stunning, and a damming indictment of the broken and shambolic legal immigration system of the United States.

The backlogs in the India and China employment-based second (EB-2) and employment-based third (EB-3) preferences have made the employment-based immigration system completely unviable. It makes no sense for an employer to test the US labor market, obtain labor certification and classify the foreign national employee in the EB-2 and EB-3 through an approved I-140 petition, and then wait endlessly for decades for the green card. It is also hopelessly frustrating for the foreign national to be waiting endlessly. As Bier’s report points out, the wait may absurdly be beyond the lifetime of the employee and the sponsoring entity. One is also penalized based on where you were born. Although each employment-based preference has a limited supply of green cards each year set by law, the backlog is further compounded due to the per country limit. A person born in India or China, no matter what his or her present nationality may be, is charged to the country of birth. Currently, India and China are more oversubscribed than other countries in the EB-2 and EB-3 backlogs. Therefore, as espoused in The Tyranny of Priority Dates, one born in India or China suffers a worse faith than a person born in Sweden or Ghana in the employment-based backlogs, and this is tantamount to invidious discrimination.

Hence, the burning question in the mind of a perplexed foreign national stuck in the EB-2 or EB-3 backlog who was born in India and China is how can I improve my situation and get the green card more quickly? This blog will offer some guidance.

Upgrade from EB-3 to EB-2

Can you upgrade from EB-3 to EB-2? If so, your employer will have to sponsor you for a position that requires an advanced degree or a bachelor’s degree plus five years of post-baccalaureate experience. There may be circumstances where you may have been promoted or up for a promotion, and the new position may justify an advanced degree, and this may be a good opportunity to once again be sponsored for a green card under the EB-2 if you were originally sponsored under EB-3. Alternatively, a new employer can sponsor you under EB-2.  If the labor certification is approved for the new position, along with the I-140 petition, the priority date from the EB-3 I-140 petition can potentially be captured for the new EB-2. You will be able to advance closer to the green card in the new EB-2 queue through this upgrade, and may also be current to receive a green card. For example, if your priority date on the EB-3 petition was November 1, 2007, and if you recaptured it for the new EB-2 petition, then you will be current, as the EB-2 India Final Action cutoff date is November 1, 2007 according to the November 2016 Visa Bulletin. The difference between a Filing Date and Final Action Date is explained below.

Not everyone can qualify for an upgrade. If you do not have the equivalent of a US Master’s degree, or the equivalent of a single source 4 year US bachelor’s degree plus 5 years of progressive experience following such a bachelor’s degree, you will likely not be eligible to qualify under the EB-2. Also, be careful about preserving the age of your child under the Child Status Protection Act, as an EB-3 to EB-2 boost may not always protect the child’s age.

Qualifying as a Person of Extraordinary Ability under EB-1A

Some may be able to qualify as a person of extraordinary ability under the employment-based first preference (EB-1A), which is current for India and China. Of course, the standard to qualify under EB-1 is extremely difficult, but it does not hurt for one to at least think about it if you readily meet three out of the ten criteria for demonstrating extraordinary ability. You may have received more acclaim over the years in your career while waiting in the backlogs without knowing it, even if you may not have won major awards or written books or published scholarly articles. For example, in business fields, people have qualified if they have made outstanding contributions of major significance to the field, worked in a leading or critical capacity for organizations with a distinguished reputation and commanded a salary higher than others in the same positions. Even if you meet 3 out of the 10 criteria, the USCIS can still subjectively determine whether you are indeed a person of extraordinary ability with sustained national or international acclaim. Thus, the USCIS can still deny an EB-1A petition even if you meet the three criteria.

Qualifying as an Outstanding Professor or Researcher under EB-1B

If you get a position in a university that is tenure track or comparable to a tenure track position, and you can demonstrate that you are an internationally recognized professor or researcher, you may be able to qualify under EB-1B, which is also current for India and China. In addition, you will need to have at least 3 years of experience in an academic area. Demonstrating yourself as an outstanding professor or researcher is slightly less demanding than demonstrating extraordinary ability as you need to meet two out of six criteria. Interestingly, one can also qualify as an outstanding researcher through a private employer if it employs at least 3 full time researchers and has achieved as an organization, or through a department or division, documented accomplishments in an academic field. Still, like with the EB-1A person of extraordinary category, the USCIS can make a negative subjective determination even after you have met two out of the six criteria in an EB-1B petition.

Qualifying as a Multinational Executive or Manger under EB-1C

Yet another option is to explore whether your employer can assign you to a foreign parent, subsidiary, branch or affiliate as an executive or manager. After fulfilling a year of qualifying employment at the overseas entity, you may be able to qualify for a green card as an intracompany transferee executive or manager under the employment-based first preference (EB-1C) if you take up a similar position with the employer in the US. The EB-1 for multinational managers and executives is also current as it is for persons of extraordinary ability.

Job Creation Investment under EB-5

For those who may have a high net worth, and have amassed over $500,000, can consider passively investing in a project within a Regional Center under the employment-based fifth preference (EB-5). Although the EB-5 is not current for China, it is current for India. Still, the EB-5 requires you to put your capital at risk, and there is always a possibility that you could lose your investment along with not being able to obtain the green card. There is also a possibility of the law changing retroactively after December 9, 2016.

Cross Chargeability through Marriage

While marrying a U.S. citizen may be the panacea to your problems, provided the marriage was in good faith, even marrying a foreign national not born in India or China would allow you to cross charge to the spouse’s country of birth, which may not be experiencing the same backlogs in the EB-3, or may be current under the EB-2.

Filing I-485 Application Under the Filing Date in Visa Bulletin

There is a small saving grace that you can use the Filing Date in the Visa Bulletin to file an I-485 adjustment of status application. Under the November 2016 Visa Bulletin, an EB-2 beneficiary, for example, can file an I-485 application for adjustment of status if his or her priority date is on or before April 22, 2009 if born in India and March 1, 2013 if born in China. While the Filing Date only allows the applicant to file, it is the Final Action date that determines whether the applicant will be granted permanent residence. Note that under the new visa bulletin system introduced since October 2015 that created the dual Filing Date and Final Action Date, the USCIS will determine whether the filing date is applicable each month for purposes of filing adjustment of status applications. In the event that the USCIS determines that the filing date is not applicable, applicants will need to rely on the final action date in order to file an adjustment of status application within the US. In November 2016, the USCIS has allowed filing I-485 applications under the Filing Date as it did in October 2016. Thus, while the Filing Date for India EB-2 is April 22, 2009, which allows for the filing of the I-485 application, the Final Action Date is November 1, 2007, which is when the green card is actually issued. Upon the filing of an I-485 application, the applicant can enjoy some of the benefits of an I-485 application such as job portability, travel permission, and open market work authorization as well as work authorization for derivative family members.

Conclusion – Continue to Advocate for Immigration Reform

While no means exhaustive, these are a few options worthy of further exploration.  In the end, notwithstanding available options, you may still not qualify and be forced to remain in the EB-2 or EB-3 backlogs. Still, do not accept your fate and actively advocate for immigration reform in Congress. The Fairness for High Skilled Immigration Act, HR 213, eliminates the per country limits in the employment-based preferences and doubles the limit to 15 % to family sponsored immigrants. The bill has amassed about 127 co-sponsors from both parties, and could potentially pass if it was put up for a vote today. However, even if HR 213 becomes law, there will still be backlogs. There is also great scope to comprehensively reform and fix the broken immigration after we elect a new President and Congress. Finally, one should continue to press this and the next administration to implement administrative reforms. For example, in The Family That Is Counted Together Stays Together: How To Eliminate Immigration Visa Backlogs, Gary Endelman and I advocated that there is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps. If the entire family was counted as one unit, instead of separately, imagine the additional green cards that would become available, resulting in a dramatic reduction of the backlogs. There is also an arguable basis for the Filing Date to be current under the Thanksgiving Turkey theory. In conclusion, do not feel hopeless and dejected. Consider all available options, and if you are still not eligible for those options, press hard for legislative and administrative changes. Every effort has a purpose, and if it is inherently for a just cause, there is that much more of a moral imperative for it to be realized and come to fruition.

(This blog is for informational purposes only and should not be considered as a substitute for legal advice.)

Cyrus Mehta

Will the Disruption of the H-1B Lottery Force Change for the Better?

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A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery recently overcame a motion to dismiss, and will move forward. There is a decent chance that the plaintiffs may prevail and employers will no longer be subject to the H-1B lottery. The annual H-1B visa cap forces employers to scramble way before the start of the new fiscal year, which is October 1, to file for H-1B visas, only to face the very likely prospect of being rejected by an opaque randomized lottery.

The lawsuit asserts that the H-1B lottery contravenes the law, and points to INA § 214(g)(3), which states that “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” This suggests that the USCIS should be accepting all H-1B visas and putting them in a queue rather than rejecting them through a randomized H-1B lottery. The parallel provision, INA § 203(e)(1), for immigrant visas reads, “Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…”  Although the wording of those two sections are virtually identical, the government rejects H-1B nonimmigrant visa petitions that do not get chosen in the lottery, but accepts all immigrant visa petitions and assigns a “priority date” based on the order they are filed, which in some cases is based on the underlying labor certification.  Unlike the H-1B visa, the immigrant visa petition is not rejected.  Instead, they wait in a line until there are sufficient visa numbers available prior to receiving an immigrant visa or being able to apply for adjustment of status in the United States.

The government in Tenrec, Inc. v. USCIS filed a motion to dismiss for lack of subject matter jurisdiction. In its motion, the government argued that the individual plaintiffs did not have standing because only employers have standing to challenge the H-1B program. The employers too, according to the government, did not show sufficient injury and thus did not have standing.  In a September 22, 2016 decision, Judge Michael Simon rejected the government’s lack of standing claims on both counts. Judge Simon referenced other recent federal court decisions that have ruled that foreign workers who are beneficiaries of immigrant visa petitions have been allowed to challenge their denials, and be given notice of them. This trend has been discussed in my recent blog, Who Should Get Notice When the I-140 Petition Is Revoked? It’s The Worker, Stupid! What is interesting in Judge Simon’s decision is the notion that standing can also extend to nonimmigrant workers. As the recipient of an H-1B visa can become a permanent resident through subsequently filed applications following the grant of H-1B status, there is no distinction between the beneficiary of a nonimmigrant visa petition with an immigrant visa petition. Even if the individual H-1B visa plaintiffs cannot become permanent residents, Judge Simon noted that they are still “more than just a mere onlooker” because their status would be in jeopardy and would lose an opportunity to live and work in the United States, as well as enjoy life here. Judge Simon also held that the employers had standing notwithstanding that the H-1B lottery already occurred since it was likely that the employer could lose in next year’s lottery. This holding in itself is invaluable for providing standing to nonimmigrant visa holders in future challenges even if the plaintiffs are not victorious here.

Even if the plaintiffs succeeding in knocking out the H-1B lottery, they will not be able to readily access the H-1B program. The annual H-1B cap will still be limited to 65,000 per year for applicants with bachelor’s degree, and an additional 20,000 for those with master’s degrees. It will be somewhat similar to the priority date system for immigrant visas that face years of backlogs, and the EB-2 and EB-3 India backlogs is currently several decades long. Although the underlying labor condition application of an H-1B petition is valid for only three years, under a redesigned filing system devoid of the lottery, an LCA could potentially be submitted and activated once the priority date for that H-1B petition becomes current.

While the H-1B lottery benefits employers who file many petitions each year (as they can then at least hope to win some in the lottery), there is already a wait list for most, especially smaller employers who file for one employee.  If the employer loses two or three lotteries before getting a number for that prospective employee, this in any event becomes a de facto waiting list.   The fact that some lucky ones get in the first time does not mean that most will not be subject to a wait list. While a wait list system for all will be fairer than a randomized lottery for a lucky few, it will create pressure for the administration to tweak the system or for Congress to create more access to H-1B visas. Regarding tweaking the system, I have previously argued that beneficiaries of approved H-1B petitions on the wait list should on a case by case basis be given the opportunity to apply for interim immigration benefits such as deferred action or parole.

The U visa serves as a case in point for my idea. Congress only granted the issuance of 10,000 U visas annually to principal aliens under INA 214(p)(2). However, once the numerical limitation is reached, the USCIS does not reject the additional U visa petition like it does with the H-1B visa under the lottery. U-1 visa grantees are put on a waiting list and granted either deferred action if in the US or parole if they are overseas pursuant to 8 CFR 214.14(d)(2). The Adjudicators Field Manual at 39.1(d) explains how the waitlist works for U visa applicants:

2) Waiting list .

All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.

While U visa recipients already in the United States on a wait list can seek deferred action, the USCIS has also recently agreed to grant parole to U visa petitioners and family members based overseas when the 10,000 annual limitation has been reached.

Why can’t the USCIS do the same with H-1B petitions by granting beneficiaries of H-1B petitions deferred action if they are within the United States or paroling them if they are overseas, along with discretionary work authorization? The grant of deferred action or parole of H-1B beneficiaries would be strictly conditioned on certain narrow criteria.    Critics of the H-1B program, and there are many, will howl and shriek that this is an end run around the annual H-1B limitation imposed by Congress.  But such criticism could be equally applicable to U visa applicants in queue, who are nevertheless allowed to remain in the United States. Of course, a compelling argument can be made for placing U visa beneficiaries on a waiting list through executive action, who are the unfortunate victims of serious crimes, as Congress likely intended that they be in the United States to aid criminal investigations and prosecutions. While H-1B wait listed applicants may not be in the same compelling situation as U visa applicants, a forceful argument can be made that many H-1B visa recipients contribute to the economic growth of the United States in order to justify being wait listed and receiving an interim benefit.

If the administration feels nervous about being further sued by anti-H-1B interest groups, after being forced to dismantle the H-1B lottery, perhaps it can limit the grant of deferred action or parole to those H-1B wait listed beneficiaries who can demonstrate that their inability to be in the United States and work for their employers will not be in the public interest. Or perhaps, those who are already in the United States, such as students who have received Optional Practical Training, be granted deferred action as wait listed H-1B beneficiaries. If the administration wishes to narrow the criteria further, it could give preference to those H-1B beneficiaries for whom the employer has started the green card process on their behalf. One could also throw in a requirement that the employer register under E-Verify in order to qualify, and this would expand E-Verify to many more employers, which is one of the government’s  goals as part of broader immigration reform.

Of course, people have gotten comfortable with the status quo, but the H-1B lottery is problematic and thus not worthy of preservation. By turning the lottery on its head, it is hoped that there will be real change for the better. Ideally, Congress should bring about change by creating more H-1B visa numbers, although given that the H-1B visa program has already been poisoned due to the misconception that H-1B workers take away US jobs, other restrictions in exchange for more H-1B numbers will become inevitable, such as forcing employers to recruit before filing for an H-1B visa or by creating more restrictions on dependent H-1B employers. Still, disruption is the order of the day, and if we have witnessed seismic disruption in the taxi industry through Uber or the hotel industry through Airbnb, why not also disrupt the H-1B lottery through a lawsuit in hope for positive change? As Victor Hugo famously said – “Nothing is more powerful than an idea whose time has come.” Who would have imagined a few years ago that those who had come to the United States prior to the age of 16 and were not in status would receive deferred action and be contributing to the United States today through their careers and tax dollars? Or who would have imagined that H-4 spouses could seek work authorization or that beneficiaries of I-140 petitions who are caught in the green card employment-based backlogs are likely to be able to apply for work authorization, even if the circumstances are less than perfect, under a proposed rule?  Moreover, the new proposed parole entrepreneur parole rule is also worthy of emulation in place of  a disrupted H-1B lottery program. If deserving entrepreneurs can receive parole, so can deserving H-1B beneficiaries who are waiting in a queue that may be more fair than the lottery.  Of course, it goes without saying that executive action is no substitute for action by Congress. Any skilled worker immigration reform proposal must not just increase the number of H-1B visas but must also eliminate the horrendous green card backlogs in the employment-based preferences for those born in India and China.  But until Congress acts, it is important to press this administration and the next with good ideas. The lawsuit to end the H-1B lottery is one such good idea. It should be embraced rather than feared in the hope that it will first dismantle and then resurrect a broken H-1B visa program.