H-1B Visa Denials, Requests for Evidence Increase

It’s getting harder for employers to get authorization to hire foreign workers

August 16, 2018
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​New data confirms what many employers have been reporting anecdotally: Requests for evidence (RFEs) and denials issued for H-1B visa petitions rose considerably in 2017.

The findings, contained in a report by the National Foundation for American Policy, a public policy research organization based in Arlington, Va., and based on U.S. Citizenship and Immigration Services (USCIS) data, show that it has become more difficult to secure work authorization for skilled foreign nationals.

The increase in denials and RFEs began shortly after President Donald Trump issued his "Buy American, Hire American" executive order in April 2017, explained Stuart Anderson, the executive director of the National Foundation for American Policy. The data in the report is from the fourth quarter of fiscal year (FY) 2017, which started July 1 of that year.

Denials of H-1B visa petitions shot up 41 percent between the third and fourth quarters of FY 2017, rising from 16 percent to 22 percent.

RFEs for H-1B visa petitions more than doubled from 28,711 to 63,184 between the third and fourth quarters of FY 2017. There were almost as many RFEs in the fourth quarter of FY 2017 (July through September) as there were in the first three quarters of the fiscal year combined. As a percentage of completed cases, the RFE rate was approximately 69 percent in the fourth quarter of the year compared to 23 percent in the previous quarter and 17 percent in the first quarter of the year.

"Within nine months of [President Trump] taking office, the H-1B RFE issuance rate increased by more than 400 percent," said Joshua Rolf, an attorney in the Philadelphia office of Green and Spiegel. "Indian nationals, in particular, rely on the H-1B program for ongoing employment authorization and status due to the prolonged backlogs they face."

The data is confirmation of the pain points employers in the information technology field, and especially those who provide third-party placement, have been experiencing since last year, said Anantha Paruthipattu, founder and principal attorney at Paruthipattu Law Firm, based in Herndon, Va.

He explained that since the latter half of 2017, his firm started to receive more RFEs around whether the position qualifies as a specialty occupation, a requirement for H-1B visa eligibility.

It used to be that "computer systems analyst" positions would trip an RFE, he said. "Software developers had been in the safe zone. Now they're getting questioned. So, we have to provide the job description at such a granular level that it can go to two to three pages and has the effect of delaying the approval process and increasing uncertainty and cost to the employer."

[Do you need to learn more about employment-related immigration? Looking for some recertification credits for your HR credential? See these SHRM eLearning courses on how to manage immigration in your workplace. Many SHRM eLearning programs offer professional development credits (PDCs) for SHRM-CP and SHRM-SCP credentials.]

Employers have to reconsider the way they file petitions, said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. "They have to be a lot more diligent on initial applications to get approvals. They will have to rethink the timing on visa extensions, and whether to use premium processing to get a guaranteed adjudication within 15 days. The bottom line is to file early. If you're denied and the employee's visa is still valid, you can refile or consider other strategies to avoid the situation where the person is at risk of falling out of status."

Experts believe that high rates of denials and requests for evidence have continued into FY 2018. On top of that, USCIS has announced many other policy initiatives to make it more difficult for high-skilled foreign nationals to work in the United States, Anderson said.

"A recent memo on notices to appear could place high-skilled applicants whose applications are denied into deportation proceedings, while another new policy allows adjudicators to deny applications without even providing an opportunity for an employer to respond to a request for evidence."

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