Requests for Evidence and Visa Denials Continue to Climb in 2019

U.S. Citizenship and Immigration Services (USCIS) has issued updated data confirming that requests for evidence (RFE) and denials continue to climb for most commonly used nonimmigrant visas. The rate of RFEs and denials for fiscal year (FY) 2019, especially when compared to statistics from FY 2015, illustrate the contrast in how cases are being adjudicated in light of President Trump’s Buy American, Hire American Executive Order.

Key Findings

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

H-1B Petitions

Fiscal Year	H-1B Initial Denial Rate	H-1B RFE Rate	H-1B Approved After RFE Rate
2015	4.3 percent	22.3 percent	83.2 percent
2016	6.1 percent	20.8 percent	78.9 percent
2017	7.4 percent	21.4 percent	73.6 percent
2018	15.5 percent	38 percent	62.4 percent
2019 (Q1-3)*	16.1 percent	39.6 percent	62.7 percent

*Data is only available for the first three quarters of FY 2019.

• The initial denial rate in the first three quarters of FY 2019 is nearly quadruple the initial denial rate in FY 2015.
• The RFE rate has nearly doubled since FYs 2015, 2016, and 2017.
• The approval rate, even after providing additional information via an RFE, has dropped more than 20 percent since FY 2015.

L-1 Petitions

Fiscal Year	L-1 Initial Denial Rate	L-1 RFE Rate	L-1B Approved After RFE Rate
2015	16.3 percent	34.3 percent	53.5 percent
2016	15 percent	32.1 percent	55.6 percent
2017	19.2 percent	36.2 percent	49.4 percent
2018	21.2 percent	45.6 percent	52.9 percent
2019 (Q1-3)*	28 percent	53.7 percent	50.7 percent

*Data is only available for the first three quarters of FY 2019.

• The initial denial rate for L-1 visas increased by approximately 32 percent between FY 2018 and the first three quarters of FY 2019.
• In FY 2019, more than 50 percent of L-1 visa petitions received an RFE, marking an increase in the rate of RFEs issued of nearly 56 percent since FY 2015.
• For the third year in a row, the approval rate after an RFE is issued capped out at only approximately 50 percent.

Moving Forward

The data for O-1 and TN visas also show ongoing increases in RFEs and denials, though not at the steep rates seen in the H-1B and L-1 visa categories. Regardless, it seems that the trend is here to stay, at least for the immediate future. It is also important to recognize that a majority of cases are approved at the outset, so the odds of approval are still in an employer’s favor.  Employers can help minimize the risk of triggering an RFE or denial by providing comprehensive descriptions of the positions they seek to fill, together with documentation detailing the qualifications of the employees they seek to sponsor.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the policy changes and will post updates on our immigration blog as additional information becomes available.