USCIS: H-1B denials, RFEs have risen sharply

U.S. Citizenship and Immigration Services (USCIS) has released data from the previous four fiscal years on H-1B adjudications, including H-1B approval rates, the percentage of cases receiving requests for evidence (RFEs) and the most common reasons RFEs were issued.

Key facts and figures:

• Approval rates. Approval rates for H-1B petitions declined markedly in fiscal year 2018 compared with previous years. The percentage of H-1B petitions approved by USCIS exceeded 95 percent in fiscal 2015, and neared 94 percent in fiscal 2016 and 93 percent in fiscal 2017. In fiscal 2018, the approval rate sank to 84.5 percent. In the first quarter of fiscal 2019 (October through December of 2018), the approval rate was even lower at 75 percent.
• Requests for evidence. The percentage of H-1B petitions subject to RFEs shot up in fiscal 2018. In the previous three fiscal years, less than one quarter of H-1B petitions that USCIS adjudicated were issued RFEs, but in fiscal 2018 USCIS issued RFEs in 38 percent of the H-1B petitions it completed. The RFE issuance rate rose even higher during the first quarter of fiscal 2019, when RFEs were issued in 60 percent of H-1B petitions adjudicated by USCIS..
• Approval rates for petitions with RFEs. Not surprisingly, the approval rate for H-1B petitions that were subject to RFEs also dropped sharply from 83 percent approval in fiscal 2015 to 62 percent in fiscal 2018 and 61.5 percent in the first quarter of fiscal 2019.
• Top 10 RFE reasons. The most common reason USCIS issued RFEs for H-1B petitions in fiscal 2018 was to require the employer to establish that the job was a specialty occupation. Other eligibility requirements that USCIS questioned most frequently through RFEs were the employer-employee relationship between the petitioner and the H-1B worker, availability of work for the requested duration of the H-1B petition, and the H-1B beneficiary’s maintenance of his or her current status.
• IT consulting challenges. The H-1B approval rates for many companies remained quite high, approaching 99 percent for some firms, compared with much lower approval rates for IT consulting companies (68 to 82 percent). The USCIS chart included data on cases USCIS adjudicated during fiscal 2018, and would not include information about H-1B petitions that remained pending after Sept. 30, 2018. This means that for many companies, the approval percentages in the chart will not capture the results for all petitions filed in 2018.

BAL Analysis: The statistics confirm that the agency has taken a harder line on H-1B petitions since President Trump issued the “Buy American and Hire American” Executive Order. Employers should prepare for the upcoming H-1B cap season knowing that RFEs are being issued with greater frequency and denials are also increasing. The data also show that for H-1B adjudications USCIS completed within fiscal 2018, tech employers enjoyed higher approval rates than IT consulting companies.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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