H-1B Hopefuls Sue Over Cap Registration Rules: Liu v. Mayorkas

Liu v. Mayorkas, Amended Complaint, June 29, 2021

"The cap registration rules and regulations codified at 8 C.F.R, § 214.2(h)(8)(iii) (“cap registration rules”) are unlawful. First, DHS was rulemaking outside of its authority when it promulgated the cap registration rules because the rules prioritize H-1B lottery registrations and ignore the INA’s mandate to allocate H-1B visas by “alien.” See 8 U.S.C. § 1184(g)(1), (3), (7). Second, even assuming that the creation of the cap registration rules was a lawful exercise of DHS’s rule-making authority, USCIS has implemented the cap registration rules in a manner that is arbitrary and capricious because the registration process does not provide a method for “aliens who are subject to the numerical limitations” to have future petitions adjudicated in the “order in which petitions are filed.” See 8 U.S.C. § 1184(g)(3). The cap registration rules promulgated by DHS and implemented by USCIS have led to H-1B applicants being selected in a manner not contemplated by the INA. Therefore, because the cap registration rules violate the INA, they must be set aside."