The immigration law firm of Parrilli and Rennison is considering an interesting challenge to the H1B lottery scheme? They argue that the lottery is not statutorily authorized and that the agency must proceed on a straight first in first out basis with priority dates given in fashion similar to the immigrant visas.

Their argument has some statutory merit, but has some practical differences. Immigrant applications are based on individuals who wish to immigrate to the US. Their interest aren’t likely to wain over the years. Employers on the other hand are unlikely to keep positions open for years until a foreign worker can actual migrate to the US. Before offering a job to a foreign worker, the job must be posted and there has to be reasonable assurance that the job cannot be filled by an equally qualified local worker Would the job have to be relisted.

The other problem is what the law calls Chevron deference. Cheveron deference says that an agency’s interpretation of a statute they are in charge of administering is given very high deference.  See, e.g.  INS v. Aguirre-Aguirre , 526 U.S. 415, 425 (1999) (“[W]e have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations’”). It can often override the plain meaning. Chevron deference has many legitimate critics, but it does not seem to be going away soon

Don’t get me wrong, this is an interesting theory, but I have reservations.