The newly finalised H-1B weighted lottery rule has sparked questions about potential legal challenges and what they could mean for employers and applicants.
While no lawsuit has yet been widely reported specifically targeting the weighted lottery itself, litigation over other H-1B regulatory changes is already underway, raising the possibility of similar action against the new selection system.
What is the H-1B weighted lottery system?
Unlike the prior purely random lottery used when registrations exceeded the 85,000 annual cap, this system assigned multiple entries based on the offered wage level from Occupational Employment and Wage Statistics data: wage level I gets 1 entry, level II gets 2, level III gets 3, and level IV gets 4. It is aimed at curbing abuse by favouring higher-skilled, higher-paid positions to protect American workers.
Responding to doubts over what legal challenges could affect the system US immigration attorney Julia Sverdloff, founder and shareholder, Sverdloff Law Group, P.C, told Financial Express that while there are no widely reported federal lawsuits filed specifically to challenge the new H-1B weighted lottery, other legal challenges exist.
“The US Chamber of Commerce and business groups have filed federal litigation challenging certain H-1B program changes, including significant new fees, arguing that the government exceeded its statutory authority. In addition, organisations such as ITServe Alliance have previously brought federal lawsuits challenging H-1B regulatory policies,” attorney Sverdloff said.
She added that these cases “reflect an ongoing pattern of litigation over the scope of the government’s authority to regulate the H-1B program and provide a legal framework that could be used to challenge the weighted lottery rule in the future.”
On likely legal grounds, she further said challenges would focus on whether the Department of Homeland Security exceeded its authority under the Immigration and Nationality Act.
Can H-1B selection go back to prior random lottery system?
The impact on the upcoming H-1B filing season, which will begin in March, would depend on timing and court action.
If a federal court issues an injunction, the United States Citizenship and Immigration Services (USCIS) could be required to pause implementation or revert to the prior random lottery system.
Without an injunction, the agency would likely proceed while litigation continued, attorney Sverdloff said.
If blocked, USCIS could revert relatively quickly, as it previously operated the random lottery for years and retained the necessary infrastructure, she added.
Even if upheld on appeal, the issue could ultimately reach the US Supreme Court, given the broader questions about agency authority under federal immigration law.