H1-B Visa Applications Facing Greater Scrutiny

By Kimberly A. Klimczuk - Skoler, Abbott & Presser, P.C.

August 22, 2018

A report by the National Foundation for American Policy (NFAP) reveals that the denial rate for H1-B petitions increased significantly in the 4th quarter of Fiscal Year 2017.  From July 1 through September 30, 2017, U.S. Citizenship and Immigration Services (USCIS) denied 22.4% of H1-B petitions, up from 15.9% in the previous quarter, an increase of 41%.  In addition, USCIS has been seeking Requests for Evidence (RFE) in connection with a much larger number of visa applications.  USCIS issues an RFE when it determines it needs additional information to determine visa eligibility, and failure to respond to an RFE in a timely and appropriate manner generally results in automatic denial of a visa application.  In the 4th quarter of FY 2017, USCIS issued almost as many RFEs (63,184) as it did for the first three quarters of FY 2017 combined (63,599).

In conjunction with these increases, USCIS issued a new Policy Memorandum  (PM) on July 13, 2018 allowing USCIS to deny visa applications without first issuing an RFE or Notice of Intent to Deny.  This Memorandum rescinds the June 3, 2013 PM prohibiting such denials.  USCIS also rescinded a rule requiring USCIS to give deference to previously-approved H1-B petitions when an H1-B extension was sought.  These changes suggest a deliberate effort by the current administration to make it more difficult for foreign workers to lawfully work in the United States.

The NFAP report found that workers from India have been particularly affected by these changes, with nearly 80% of applicants for O-1 petitions from India receiving RFEs.  H1-B and O-1 visas are used by employers to hire highly-skilled foreign workers when they are unable to find sufficiently-skilled workers in the U.S.  They are commonly used in science, technology, engineering, and math (STEM) fields.  U.S. employers in STEM industries may have difficulty remaining competitive in the global market if USCIS’s current practices continue, which could hurt, rather than help, the U.S. economy.  According to research conducted by economists Giovanni Peri, Kevin Shih and Chad Sparber, “inflows of foreign STEM workers explain between 30% and 50% of the aggregate productivity growth that took place in the United States between 1990 and 2010.”