Friday, August 3, 2018

The rate of requests for evidence (RFEs) and denials issued for H-1B and L-1 petitions by U.S. Citizenship and Immigration Services (USCIS) is up considerably, according to a new report by the National Foundation for American Policy. The findings, which are based on data released by USCIS, corroborate what many employers had already suspected—that it is getting harder to secure work authorization for foreign nationals, even those that are highly-skilled. The report suggests that the increased scrutiny on H-1B and L-1 petitions began shortly after President Trump issued his “Buy American and Hire American” (BAHA) executive order and has only been reinforced by subsequent policy initiatives that USCIS has implemented.

Key Findings

The following is a summary of the key findings included in the report:

H-1B Petitions

FY 2017 H-1B RFEs H-1B Denials H-1B RFE Rate H-1B Denial Rate Q1 18,578 21,304 17.3 percent 19.8 percent Q2 16,310 20,897 13.5 percent 17.3 percent Q3 28,711 20,299 22.5 percent 15.9 percent Q4 63,184 20,514 68.9 percent 22.4 percent

USCIS issued more than double the number of RFEs for H-1B petitions in the fourth quarter than it did in the third quarter.

The number of RFEs USCIS issued in the fourth quarter alone was nearly equal to the total number of RFEs it issued in the first, second, and third quarters combined.

Nearly 69 percent of all H-1B petitions received an RFE in the fourth quarter, more than tripling the percentage of RFEs that were issued in the first quarter (the final quarter under the Obama administration).

H-1B denials increased by 41 percent between the third and fourth quarters.

L-1 Petitions

FY 2017 L-1A RFE Rate L-1A Denial Rate L-1B RFE Rate L-1B Denial Rate Q1 34.7 percent 12.8 percent 46.4 percent 21.7 percent Q2 39.2 percent 17.5 percent 50.1 percent 28.6 percent Q3 35.0 percent 19.7 percent 39.8 percent 28.6 percent Q4 39.6 percent 21.4 percent 47.2 percent 28.7 percent

L-1A petitions saw a 67 percent increase in denials from the first quarter to the fourth quarter.

L-1B denials increased by nearly a third between the first and fourth quarters.

According to the report, the denial rate for L-1B petitions in the first quarter of fiscal year 2018 was approximately 30.5 percent and 29.2 percent in the second quarter.

Moving Forward

The report confirmed what many employers and immigration attorneys had already gathered from their own anecdotal evidence—that RFE rates are up and that USCIS adjudicators are demanding more evidence in support of H-1B and L-1 petitions. This trend seems likely to continue given the series of policy initiatives that have been adopted by USCIS in furtherance of BAHA, all of which seem designed to make it harder for foreign nationals to not only secure immigration benefits, but also to retain them.