The U.S. government's attempt to stop a lawsuit challenging the legality of the H-1B lottery was rejected Thursday by a federal court judge.
The government tried to get this case dismissed on legal technicalities but failed. U.S. District Court Judge Michael Simon, in Oregon, denied the government's dismissal motion in a 24-page ruling.
This case may now be decided quickly. The plaintiffs are seeking a summary judgment with oral arguments schedule in December. If the summary judgment is granted, the lottery could end -- the plaintiffs hope -- as early as next year.
The case was brought by Tenrec Inc., a web development firm, and Walker Macy LLC, a landscape architecture, urban design and planning firm. Both firms filed petitions to hire a person who needed an H-1B visa, but lost the lottery.
"In denying the government's motion to dismiss, the court recognized the legal right for the employees, as well as the employers, to sue over the lottery process," said plaintiff attorney Brent Renison at Parrilli Renison in Portland, Ore., on Friday. "This is significant because some courts around the country have only recognized standing of employers to sue."
The U.S. distributes H-1B visas via a lottery in April of each year. The lawsuit argues that this lottery distribution system is unlawful because it does not consider applications in the order received. It wants the lottery abolished and replaced with a date filing system, or what amounts to replacing a lottery with a line.
It's getting increasingly difficult to get an H-1B visa. The U.S. allocates 85,000 under its cap, but many more petitions than that are allowed. In April it received 236,000 visa petitions.
The U.S. Citizenship and Immigration Service attempted to dismiss a lawsuit by arguing, in part, that the two firms challenging the government didn't have sufficient standing.
But Judge Simon said the allegations "are sufficient to show a concrete and particularized injury."
A USCIS spokeswoman said the agency doesn't comment on ongoing litigation.
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