The denial rate for H-1B petitions spiked through the first quarter of Fiscal Year 2019 to over five times what the rate was just four years ago. That’s according to a report published by the National Foundation for American Policy on April 10.
The H-1B program allows employers in the United States to employ foreign workers temporarily in “specialty occupations” – i.e., those that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B skilled worker visas have long been the most commonly used visa for U.S. employers to employ foreign professional workers in the United States.
The NFAP’s report, which is based on an analysis of data made public earlier this year by U.S. Citizenship & Immigration Services (USCIS) through its H-1B Employer Data Hub, shows that between FY 2015 and FY 2018, the denial rate for new H-1B petitions quadrupled, from approximately 6 percent in 2015 to 24 percent in 2018. Through the first quarter of FY 2019, that rate has been even higher, with denials issued to 32 percent of H-1B petitions seeking initial (new) employment.
The denial rate for H-1B petitions seeking continuing employment or an extension of an employee’s H-1B status has followed the same trend, increasing from 3 percent in FY 2015 to 18 percent through the first quarter of FY 2019. One might think that the denial rate for H-1B extensions would remain relatively low: if USCIS has already determined in the context of a previous H-1B petition that a particular position satisfies the definition of a “specialty occupation” and that a particular beneficiary possesses the required education. It follows, then, that absent a material change in circumstances, a petition seeking merely to extend that employee’s H-1B status should be an easy approval.
However, this jump in denials of H-1B extensions is assuredly the byproduct of new USCIS policy guidance issued in October 2017. Pursuant to that new policy memo, the agency rescinded prior guidance that instructed adjudicators to give deference to prior determinations of eligibility by USCIS when deciding on petitions to extend nonimmigrant status. Under the new policy, USCIS confirmed that the burden of proof remains on the petitioner at all times and urged immigration officers not to feel constrained in their ability to request additional evidence or to review and reassess eligibility in each case, regardless of any prior decisions in these cases.
In other words, petitions seeking to extend a previously approved status are now subject to the same scrutiny as brand new petitions, despite the fact that USCIS may have previously approved a petition based on the same exact facts – and sometimes on multiple occasions. This policy has caused extensions of status for both H-1Bs and all other nonimmigrant visa types to become much less predictable, with no guarantees of approval.
As for the uptick in denial rates for new H-1B petitions, the precise source of these increased denials is a bit harder to pinpoint. There have been no substantive changes to the law (either statutory or regulatory) regarding the required elements of an H-1B petition or what a petitioner must prove in order to receive an approval. Rather, the change has occurred more subtly, in the context of significantly heightened scrutiny of all employment-based visa categories by USCIS officers — without any actual change in the law — resulting in the higher denial figures seen above, as well as more frequent Requests for Evidence (RFEs) issued by USCIS. This trend would be consistent with the stated goals of President Trump’s “Buy American, Hire American” executive order issued in April 2017, which purports to prioritize the prevention of immigration fraud and the employment of U.S. workers over foreign workers.
This also falls in line with another policy memorandum issued in July 2018, reinforcing USCIS adjudicators’ discretion to deny an application, petition, or other benefit request without first issuing an RFE or Notice of Intent to Deny (NOID) if required evidence is not submitted with the initial petition/application package, or if the evidence in the record does not establish eligibility for the benefit sought.
This policy memo rescinded USCIS’s prior policy memo of June 3, 2013. The earlier guidance instructed adjudicators to first issue an RFE or NOID before denying an application, petition, or other benefit request, unless there was “no possibility” that the deficiency could be cured by the submission of additional evidence by the petitioner or applicant. In other words, where the evidence submitted did not immediately establish eligibility or ineligibility, adjudicators were encouraged to first issue an RFE or NOID and provide the petitioner or applicant with an opportunity to remedy a deficiency before evaluating cases based on the record.
When implemented collectively, the policy shifts cited above have undeniably been the driving force behind what many employers, employees, and immigration attorneys have experienced and shared anecdotally in recent years: That it has become increasingly challenging to satisfy USCIS and gain approval of H-1B and other nonimmigrant employment-based visas. The data now backs that up, showing that H-1B denial rates have reached historic highs. This is yet another sign of the ways in which the immigration landscape is quietly changing at an administrative/policy level, far from the noise of the legislative debate over the border wall.