UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SIYING LIU, et al., Applicants, v. Case No. 1:21-cv-01725 (TNM) ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security, et al., Defendants, and ITSERVE ALLIANCE, INC., et al., Intervenor-Defendants. MEMORANDUM OPINION The H-1B visa program allows U.S. employers to hire foreign nationals into so-called specialty occupations. Employers compete fiercely for these visas. Over the years, the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) have revised their method for processing H-1B visas to make it fairer and more efficient. One of those changes is at issue here. Before 2019, employers wishing to bring an alien into the country on an H-1B visa filed a paper petition with USCIS. Because the number of petitions always outstripped available visas, USCIS conducted a lottery to choose which petitions to process. Handling all the paper petitions was resource-intensive, so USCIS overhauled the system in 2019. Under the new rules, employers first file an electronic registration with USCIS. USCIS conducts its lottery using the registrations. Every selected registration entitles an employer to file a petition on behalf of the alien named in the registration. Plaintiffs (the Applicants) are several hundred foreign nationals whom USCIS did not select in any of the H-1B lotteries it conducted this fiscal year. They allege the new rules make it easier to game the H-1B visa system. Because registrations are cheap and do not take long to file, they say that “H-1B consultancies” offer to file fake registrations for a fee. A foreign national with multiple employers—real or imagined—filing on his behalf stands a much better chance of having USCIS select at least one of his registrations. If USCIS selects a registration filed by one of the consultancies, the alien can file a form to change his employer. The upshot, according to the Applicants, is that fraudsters are winning H-1B visas at the expense of rule followers like themselves. The Applicants contend that DHS and USCIS’s (the Department) new rules violate the Administrative Procedure Act (APA) and are ultra vires because they contradict relevant statutes. They also argue that the new rules are arbitrary and capricious. The Department argues that the Applicants lack standing. Both the Department and Intervenor-Defendants ITServe Alliance, Inc., iTech U.S., Inc., NAM Info Inc., and Lucid Technologies, Inc. (collectively, the Alliance) argue that the Department can establish the registration system. They also argue that the Department adequately responded to public comments and provided a reasoned explanation in support of the new rules. The Court finds that Applicants have standing but that the new rules are not ultra vires because they do not conflict with the relevant statute. Nor are they arbitrary and capricious because the Department met its burden in responding to public comments. The Court will therefore deny the Applicant’s motion for summary judgment, will grant the Alliance’s cross- 2 motion for summary judgment, and will largely grant the Department’s cross-motion for summary judgment. I. Some background on the …
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