USCIS has been issuing challenges and even denials to some H-1B petitions based upon allegations of suspected lottery fraud. USCIS appears to be taking the position that fraud occurs when multiple registrations are submitted on behalf of the same individual.  

Of course, it is possible for more than one company to file a valid H-1B lottery registration for the same foreign national if each company has a genuine job offer for that particular person. USCIS believes that some companies (often related companies) are allegedly colluding to try to increase their chances of being able to fill what is really the same job.

This year, more than 780,000 registrations were submitted for 85,000 H-1B slots. Last year’s figure was closer to 480,000. Reportedly, nearly half of this year’s  submissions were on behalf of foreign nationals with multiple registrations. This large increase in registrations led USCIS to suspect fraud.

To search for possible fraudulent registrations, USCIS goes beyond the information in the registrations. USCIS officers search their data and websites to discover, for example, whether the companies involved are using the same attorneys or agents. They also review the filed H-1B petitions for similarities such as the same boilerplate employer letters. Lastly, they analyze whether companies registering the same individual had contractual or financial relationships.

The basis for the fraud allegations is the attestation that all H-1B petitioners must sign before submitting a registration.

The employer certifies:

that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

In a complaint filed in federal court in Washington state, a group of nine foreign nationals is suing DHS because they believe that their H-1B visa applications were wrongly revoked based upon allegations of lottery fraud. The plaintiffs are arguing that the revocations violated the Administrative Procedures Act because they were not notified in advance and, therefore, had no ability to respond to the fraud allegations. The employers who filed the petitions were the only ones to receive notice of the fraud allegations, even though the foreign nationals also are directly impacted. This is not the first case to press similar allegations. Earlier in August, 70 F-1 visa holders with OPT filed a similar complaint in the same federal court.

Willful misrepresentations to USCIS or other immigration agencies can lead to serious consequences. If such misrepresentations are linked to the foreign nationals involved, they can result in inadmissibility for the foreign nationals. DHS can also make referrals to law enforcement for criminal prosecution of companies that allegedly committed fraud.

Various ways to change the lottery process to solve this problem are under consideration. In the meantime, Jackson Lewis attorneys will continue to monitor these cases and provide updates on the cases and the possible solutions as they become available.