The denial rate for initial H-1B petitions jumped to an unprecedented 32% during the first quarter of fiscal year 2019, according to a report by the National Foundation for American Policy (NFAP), which analyzed data from U.S. Citizenship and Immigration Services (USCIS).
Since fiscal year 2009, the denial rate for initial H-1B petitions never exceeded 15%. And in most years, the denial rate remained under 10%. (The federal fiscal year begins on Oct. 1.)
Denials for Renewals Up
NFAP found that even employers who are petitioning for H-1B renewals for employees are experiencing difficulty. USCIS denied 18% of H-1B petitions for continuing employment, compared to denying only 3% of such petitions in fiscal year 2015. Between fiscal years 2009 and 2017, the denial rate on H-1B petitions for continuing employment never exceeded 6%.
Denials have increased because USCIS has raised the standard of proof for approving H-1B petitions even though Congress has not passed any new law or regulation.
Two years ago, USCIS made renewing most work-related visas—including H-1Bs—more difficult. Previously, USCIS officers automatically granted visa renewals as long as the situation of the foreign national did not change and no error or fraud was found in the visa application. Now USCIS officers are reviewing renewals with the same intense scrutiny as initial petitions even if the situation of the foreign national remains unchanged, creating unpredictability for employers.
H-1B Lottery
Despite the rise in denials, USCIS received 201,011 H-1B petitions this month for the annual lottery. That’s a 6% increase from last year, but still a 15% drop from 2016.
USCIS announced on Twitter that the number of petitions selected in this year’s lottery for candidates with a master’s or higher degree increased by more than 11% from last year. USCIS reversed the lottery selection process this year, accounting for the increase. Still, all H-1B petitions selected in the lottery must be adjudicated by USCIS. Therefore, “winning” in the lottery does not mean USCIS will approve the petition.
Requests for Evidence
USCIS issued a Request for Evidence (RFE) in 60% of H-1B cases in the first quarter of FY 2019. USCIS released the top 10 reasons for issuing RFEs. The top 3 reasons are that the petitioner did not establish:
- The position qualifies as a specialty occupation.
- A valid employer-employee relationship with the beneficiary.
- Specific and non-speculative qualifying assignments in a specialty occupation for the entire time requested in the petition.
95%+ Success
Reach out to us if we can help you with an initial H-1B petition or renewal or strategize alternative options. The Alcorn Immigration Law team has maintained its 95%+ success rate on work-related visas, including H-1Bs.
