The National Foundation for American Policy (NFAP), a non-profit research organization focused on topics of immigration, globalization and the economy, recently issued a policy brief on H-1B denials and Requests for Evidence.
Recent increase in denials and Requests for Evidence (RFEs) for H-1B petitions are likely the result of the new Trump Administration policies. This Administration has limited the admission of high skilled foreign nationals to work in the U.S., regardless of economist’s belief that foreign-born scientists and engineers are beneficial to the U.S. With the executive order, “Buy American, Hire American,” issued on April 18, 2017, it is evident that this is not a push towards more “merit-based” immigration but rather toward immigration restrictions overall.
New Policy Initiatives
The U.S. Citizenship and Immigration Services (USCIS) has issued a recent policy initiative, making it increasingly challenging for high-skilled foreign nationalists to work in the U.S. One new USCIS policy allows for adjudicators to deny applications without first issuing an RFE. The USCIS will no longer defer to prior determinations when extending H-1B visas. The agency has also announced that it will withdraw work authorizations for the spouses with H-1B visas and will limit international students’ ability to work on Optional Practice Training (OPT) after graduation.
Denials and RFE Rates
Requests for Evidence for H-1B petitions have more than doubled between the third quarter and fourth quarter of FY 2017. The rate for RFE’s for H-1B petitions were approximately 23% in the third quarter of FY 2017 and jumped to an alarming 69% in the fourth quarter of FY 2017. Increased rates of denials and RFE’s continue into FY 2018.
L-1B and L-1A petitions denial and RFE rate has also increased. The National Foundation for American Policy has calculated that the denial rate for all L-1B petitions in the first quarter of FY 2018 was 30.5% compared to a denial rate of 27% in FY 2017 and 24% in FY 2016. L-1A petitions, have also seen an increase in denial rate, from 12.8% in the first quarter of FY 2017 to 21.4% in the fourth quarter of FY 2017. Although the O-1 petitions have stayed relatively the same, RFE’s have increased.
Limiting Indian Petitioners
USCIS Adjudicators are more likely to deny or issue an RFE for H-1B, L1 and O-1 petitions to applicants who are from India. The rate for received RFE’s for O-1 petitions in the fourth quarter of FY 2017 was almost 80% for Indian petitioners, meanwhile RFE’s for O-1 petitioners of all other countries was only 27.9%.
The L-1B denial rate in the fourth quarter of FY 2017 was 47.8% for Indian petitioners, but only 16.7% for petitioners for all other countries.
The rate for RFE’s for H-1B’s in the fourth quarter of FY 2017 was 72.4% for petitioners from India (it should be noted that in the first quarter of FY 2017 the RFE rate was only 24.2%). However, this same rate was only 61.2% for petitioners of all other countries (an increase from the 18% RFE rate in the first quarter of FY 2017).
The new Trump administration and recent policies issued by the USCIS continue to shape a challenging landscape for new immigration petitions. Increases in RFE’s and denials issued by the USCIS show recent obstacles for petitioners of H-1Bs and other employment-based visas.