According to the National Foundation for American Policy, USCIS dramatically increased denials of L-1 and H-1B petitions over the past four years, harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States. Data indicate much of the increase in denials involves Indian-born professionals and researchers. U.S. Citizenship and Immigration Services adjudicators have demonstrated a capacity to keep skilled foreign nationals out of the United States by significantly increasing denials, along with often time-consuming Requests for Evidence (RFE), despite no change in the law or relevant regulations between 2008 and 2011.
Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States – beyond the reach of U.S. Citizenship and Immigration Services adjudicators and U.S. consular officers.
Given the resources involved, employers are selective about who they sponsor. The high rate of denials (and Requests for Evidence) is from a pool of applicants selected by employers because they believe the foreign nationals meet the standard for approval, making the increase in denials difficult to defend. Denying employers the ability to transfer in key personnel or
gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability.
Here are some of the findings:
– Denial rates for L-1B petitions filed with USCIS, which are used to transfer employees with “specialized knowledge” into the United States, rose from 7 percent in FY 2007 to 22 percent in FY 2008, despite no change in the law or relevant regulation. The denial rates stayed high for L-1B petitions at 26 percent in FY 2009, 22 percent in FY 2010 and 27 percent in FY 2011. In addition, 63 percent of L-1B petitions in FY 2011 were at least temporarily denied or delayed due to a Request for Evidence.
– Denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011.
– Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. L-1A visas are used to transfer executives and managers into the United States.
– Along with increased denials have come skyrocketing rates of “Requests for Evidence” or RFEs, which are used by USCIS adjudicators to obtain more information in lieu of making an immediate decision on a petition. Employers note that simply the act of an RFE can result in months of delays, affecting costs and potentially delaying projects and contract performance.
– The Request for Evidence rate for L-1B petitions (to transfer employees with specialized knowledge) rose from 17 percent in FY 2007 to 49 percent in FY 2008, and, as noted, reached an astonishing level of 63 percent rate in FY 2011. As recently as FY 2004, USCIS adjudicators requested additional evidence for L-1B petitions in only 2 percent of the cases. There appears to be no reasonable explanation for the rate of Request for Evidence for L-1B petitions to rise from 2 percent to 63 percent in just 7 years.
– The Request for Evidence rate for L-1A petitions (to transfer managers and executives) increased from 4 percent in FY 2004, to 24 percent in FY 2007, up to 51 percent in FY 2011.
– For H-1B petitions, the Request for Evidence rate rose from 4 percent in FY 2004, to 18 percent by FY 2007, to a high of 35 percent in FY 2009. In FY 2011, the rate for H-1Bs was 26 percent.
Denying employers the ability to transfer in key personnel or gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability. The data in the report include only petitions at USCIS, not decisions made at consular posts.
We are very concerned about the date released in this report, and as lawyers processing numerous L1 and H1B cases, can attest that the findings are correct and are even worse. Some of the denials we have seen were reported back to AILA for further follow up. We hope that 2012 will be a better year, but this is still hard to believe.