Over the past two years, lawyers, employers, and H-1B beneficiaries have suspected USCIS raised its standard of proof for H-1B visa approval without any new law, regulation, or notice to the public. This was evidenced anecdotally with jobs that had never before been called into question for meeting H-1B specialty occupation requirements suddenly being hit with an unprecedented rate of RFEs instead of approvals, like computer programmer and engineer.
When USCIS released its H-1B Employer Data Hub, it became clear these suspicions were correct. The National Foundation for American Policy analyzed the report and found that, “Between FY 2015 and FY 2018 the denial rate for new H-1B petitions quadrupled from 6% to 24%. To put this in perspective, between FY 2010 and FY 2015, the denial rate for initial H-1B petitions never exceeded 8%, while today the rate is 3 to 4 times higher.”
Following the notorious April 2017 executive order, “Buy American, Hire American,” denial rates for initial H-1B petitions nearly doubled from 13% in FY 2017 to 24% in FY 2018, and then climbing to 32% in the first quarter of 2019. H-1B extensions and transfers saw similar spikes even though these petitions are for workers who had previously been approved and for jobs that had previously been approved. The same workers and the same jobs that qualified just a few years ago are now being denied at unprecedented rates. In FY 2017 the denial rate for these petitions was 5%. The rate more than doubled in FY 2018 to 13%.
Along with this statistic, the top 27 employers of workers holding H-1B visas all experienced denial increases between FY 2015 and the first quarter of FY 2019 for H-1B extension petitions. These are petitions for the same job and worker that were previously approved. This shows that the standard of proof has changed without any new law, regulation, or notice to the public. The same workers and jobs that met H-1B requirements just a few years ago suddenly do not.
USCIS is restricting H-1B visas, as evidenced by their denial trends. This is beginning to have what may turn into catastrophic effects for STEM industries in the United States. Already, STEM businesses that are expanding internationally are choosing to open branches elsewhere. International students are choosing to go to other countries for undergraduate and grad school because job prospects following their education in the US rely on the H-1B program. At this time, only 20% of all graduate students in US schools studying computer sciences and electrical engineering – fields the STEM industries depend on – are US citizens. It has been known for a long time that STEM industries in the US depend on the H-1B program to remain globally viable.If you, or if your employee or client receives an RFE or Denial this H-1B season, it is imperative that it be fought. The burden of proof is higher now than it has ever been before, and that means we need stronger petitions, and strong RFE responses. For a free review of your case, visit ccifree.com/. We will get back to you in 48 hours or less.