U.S. Citizenship and Immigration Services (USCIS) has released H-1B data, including records compelled by two Freedom of Information Act (FOIA) lawsuits, that continues to show the impact of Trump administration’s restrictive immigration policies.
The approval rate for all H-1B specialty occupation visa petitions remained steady at nearly 85% in fiscal year 2019, which ended in September. Meanwhile, the number of Requests for Evidence (RFEs) reached a five year high at 40.2%. That’s up from 38% in FY 2018 and 22.3% in 2015.
For the past few years, Alcorn Immigration Law is proud to have maintained a 95%+ success rate for all the H-1B petitions and cases we’ve handled. Join me for a webinar on December 6. I’ll discuss the upcoming changes for the H-1B lottery process at a webinar on December 6, at noon PST.
Despite increase in RFEs, the denial rate for H-1B petitions that received an RFE increased slightly to 34.6% in FY 2019 from in 37.6% FY 2018. Still, it’s more than double the 16.8% denial rate in FY 2015.
Denial Rates Rise for New H-1Bs
According to a National Foundation for American Policy (NFAP) analysis of the latest numbers from the USCIS H-1B Employer Data Hub, denial rates for new H-1B petitions have increased significantly, rising from 6% in FY 2015 to 24% through the third quarter of FY 2019.
“To put this in perspective, between FY 2010 and FY 2015, the denial rate for ‘initial’ H-1B petitions never exceeded 8%, while today the rate is three times higher,” states the policy brief released this month. Since fiscal year 2009, the denial rate for initial H-1B petitions never exceeded 15%. “Initial” H-1B petitions primarily involve new employees and count against the H-1B annual limit of 85,000 awarded in the annual lottery.
The denial rates for H-1B petitions for new employees have increased particularly for IT services companies. According to NFAP, 12 of the 27 companies that provide professional or information technology services had denial rates of more than 30% through the first three quarters of FY 2019. In FY 2015, most of these companies had denial rates between 2% and 7%.
USCIS recently released documents in response to two Freedom of Information Act (FOIA) lawsuits filed by the American Immigration Lawyers Association (AILA) seeking records that indicate how USCIS adjudicates H-1B petitions. Under the Trump administration, USCIS has changed its adjudication standards for H-1B petitions without going through the process of new regulations and without new laws passed by Congress.
AILA filed a FOIA lawsuit last year seeking records showing how USCIS determines whether a position is a specialty occupation. That lawsuit followed a 2017 FOIA lawsuit requesting records about how wage levels on the LCA or using a private wage survey may impact H-B petitions.
The documents that USCIS released to AILA include:
- Guidance for Adjudicators Regarding Wage Level Analysis
- Specialty Occupation and Wage Level Issues Scenarios Chart
- Implementation of March 31, 2017, Memo, “Rescission of the December 22, 2000 ‘Guidance Memo on H-1B computer related positions’”
- Targeted Site Visit and Verification Program – H-1B Training
- I-129 H1B AC21 Denial Standards
- H-1B RFE Standards
- Evaluating Specialty Occupation
- AAO Denial of an H-1B Petition Market Research Analyst (2009)
The Alcorn Immigration Law team has a proven process for success. That process has enabled us to maintain our 95-plus percent success rate. The team starts with a needs assessment and strategy discussion. Once we file a petition with USCIS, we monitor processing and address any Requests for Evidence (RFE).
Reach out to us if we can make the Alcorn Method work for you on H-1B petitions or renewals or other immigration options. Please let us know in the comments section below if you found this information helpful.