FOIA Lawsuit on H-1B Lottery Policies and Procedures

On behalf of the American Immigration Lawyers Association (AILA), the Council, in cooperation with Hughes Socol Piers Resnick & Dym, Ltd., filed a lawsuit against USCIS and DHS seeking the public release of records relating to the policies and procedures USCIS follows when administering the annual H-1B random selection process (the “lottery”). There is significant public interest in how USCIS conducts the lottery because employer demand for foreign professionals far exceeds the number of H-1B visas available each year. For the past four years, USCIS has received enough petitions to reach the regular H-1B cap limit and master’s cap limit within the first five business days of April, which under agency regulations obligates USCIS to conduct the lottery.

AILA seeks records about how the random selection process works, the process for accepting or rejecting a petition for inclusion in the lottery, how USCIS decides it has selected the number of petitions needed to meet the annual H-1B numerical limits, how USCIS keeps track of visa number usage, and whether USCIS is actually allocating all of the available visa numbers. AILA’s FOIA request is attached as Exhibit 1 to the Complaint.

AILA filed suit after USCIS failed to conduct an adequate search, producing only 521 pages of records initially and reprocessing 219 of those pages following an administrative appeal, and improperly withheld most of the pages produced in their entirety or in substantial part. AILA is particularly concerned about USCIS’ assertion with regard to documents prepared by a contractor USCIS hired for the lottery, of a FOIA exemption for records that contain trade secrets, commercial or financial information of a third-party, since the administration of the H-1B lottery is USCIS’ responsibility.

After the lawsuit was filed, USCIS agreed to “reprocess” the initial 521-page production (“Reprocessed Production”) and to conduct a new search which yielded nearly 3,600 records (“Supplemental Production”). Both productions are available on AILA’s website with indexes. The Supplemental Production primarily covers Fiscal Years 2009 through 2012, while the Reprocessed Production primarily covers Fiscal Years 2014 and 2015. The productions provide insight into USCIS’ efforts to predict and calculate how many petitions need to be accepted to utilize the annual “regular” cap and “master’s exemption” allocations and sheds light on the functions performed by the private contractor retained by USCIS to assist with this work. The parties reached a settlement agreement, including attorneys’ fees, and filed a stipulation of dismissal on September 13, 2017.