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.
