Nov 8, 2019
USCIS Continues Increased Scrutiny of H-1B Program
Joshua H. Rolf
The consequences of the Trump Administration’s animus towards legal immigration continue to manifest themselves through one of the White House’s favorite targets: the H-1B Program.
Consistent with our reporting on this issue over the past two years, and thanks to the President’s Buy American, Hire American Executive Order, Non-Deference Memo, and other policy shifts unaccompanied by formal changes to the Immigration and Nationality Act or Federal Regulations – and, frequently, contrary to current law and regulation – data shows U.S. Citizenship and Immigration Services’ (“USCIS”) remains fixated on making life more difficult for specialty occupation workers and the companies that employ them. According to analysis from the National Foundation or American Policy (“NFAP”), USCIS denied nearly 25% of all new H-1B Petitions (largely those selected in the yearly H-1B Cap Lottery) in during the first ¾ of Fiscal Year 2019, with denial rates rising to 35% for new H-1B Petitions filed during the second quarter of Fiscal Year 2019.
These rates are consistent with Fiscal Year 2018, but remain remarkably higher than years past. In fact, In Fiscal Year 2015, USCIS only denied 6% of such Petitions, with Fiscal Year 2016 seeing a slight rise to 10%. Denial rates for H-1B extensions and transfers also remains much higher than normal, and overall Request for Evidence rate hovered around 60% at the beginning of Fiscal Year 2019, as well.
Though our Firm’s denial rates remain far below the national average, we are not immune from USCIS’ incessant and often inexplicable issuance of H-1B RFEs. We stand with our clients seeking predictability and positive results in this difficult environment, while applauding and joining our colleagues in challenging the government’s extra-legal adjudicatory standard that has made increasingly difficult to get even an H-1B Extension approved without pushback. If you are considering filing an H-1B Petition or require assistance responding to an H-1B RFE or taking action following a Denial, please do not hesitate to contact our office.