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.
The following is a summary of the key findings included in the report:
|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.
|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.
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.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these changes and will post updates on the Immigration blog as additional information becomes available.