H-1B Denials Hit All-Time High

It is no secret that the current administration frequently bypasses Congress and issues policy changes to curb legal immigration. According to the latest data from USCIS, H-1B visas are being denied at unprecedented rates, disproportionally affecting information technology companies.

The percentage of denials for new H-1B petitions (initial employment) has quadrupled from FY 2015 through the third quarter of FY 2019. According to the most recent analysis by the National Foundation for American Policy (NFAP) of U.S. Citizenship and Immigration Services (USCIS) data, only 6% of initial H-1B petitions were denied in FY 2015 as compared to 24% through the third quarter of FY 2019.

An “initial” H-1B petition is defined as “new employment or new concurrent employment” and a “continuing” H-1B petition as “continuing employment, change of employer and amended petitions.” New H-1B petitions for initial employment are primarily counted against the 65,000 annual cap and the 20,000 cap-exempt limit for foreign nationals with advanced degrees from U.S. universities.

Denial rates for H-1B petitions for continuing employment have also increased significantly. In October 2017, USCIS published a memo making it more difficult for H-1B visa holders to extend their status even with the same underlying facts and circumstances.

The NFAP report found that “USCIS adjudicators denied 12% of H-1B petitions for ‘continuing’ employment” during the first three quarters of FY 2019. The data shows a stark increase when compared to the 3% of denials for “continuing” H-1B petitions in FY 2015.

During the third quarter of FY 2019, there was a relative decrease for initial H-1B petition denials. The 10% denial rate for new petitions during this period does not necessarily reflect any relaxation in the restrictive policies. The NFAP study notes that the decrease in denial rates during the third quarter of FY 2019 can be attributed to “USCIS adjudicators approving the most easily approvable cases selected in the April 2019 ‘lottery’ for H-1B petitions that count against the annual limit-and issuing other cases Requests for Evidence (RFEs).” The data does not reflect the cases where USCIS issued an RFE because a decision would not be reached until later in the year.

The USCIS data indicates that the restrictive policies stemming from the “Buy American, Hire American” presidential executive order are making it more difficult for U.S. employers to fill vital positions.