Visa Lawyer Blog

A memo was released recently through the National Foundation for American Policy which provided a revealing analysis in which data reveals high denial rates for L-1 and H-1b petitions submitted to U.S. Citizenship and Immigration Services (USCIS). Analysis of new data obtained from USCIS reveals the agency has 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.

The high denial rates belie the notion adjudications have become more lenient. 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. (The data in this report include only petitions at USCIS, not decisions made at consular posts.) 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.

Among the findings contained in this NFAP analysis of official U.S. Citizenship and Immigration Services data:
– 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 2011.1 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.

– The denial rates also increased for O-1A petitions, which are used for “individuals with an extraordinary ability in the sciences, education, business, or athletics.”2 Denials for O-1A petitions rose from 4 percent in FY 2008, to 10 percent just one year later in FY 2009, increased again to 11 percent in FY 2010, and stood at 8 percent in FY 2011.

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At the American Immigration Lawyers Association Conference today, we heard updates about the increased H1B visa RFE’s and rate of denials. As the practice of H1B filings will continue to become more complex, it is important to know how to file and document H1B cases in specific occupations to increase the approval chances.

Attorney Ekaterina Powell from our office has handled numerous H-1B cases and has prepared this article to share her expertise. Now that the H-1B annual cap for fiscal year 2013 has been reached, the individuals who have missed this year’s cap are looking for other options to extend their stay and apply for H-1B next April.

We would like to remind those who wish to use next year’s H-1B Cap to plan in advance and have everything ready long before April 1, 2013. The accelerated speed with which H-1B cap was reached this year may be a sign that the visas will run out even faster next April.