Will we see a large number of H-1B denials this year?

With employers filing H-1B cases only with strong likelihood of acceptance, will the denial rate go down this year?

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On Friday, the US Citizenship and Immigration Services announced that it has completed the H-1B cap lottery selection process for the 2020 fiscal year. With the USCIS conducting two lotteries — one for the 65,000 petitions in the general pool and the second one for the 20,000 US advanced degree holders — applicants will start receiving notices in the next few days.

As the petitioners await the lottery result, one question that is foremost in the minds of the applicants is whether they will get a visa denial notice or a Requests for Evidence (RFE). So, as we enter another cycle of waiting for H-1B approval, what can the applicants expect? Are there even higher chances of denials and RFEs?

In the past couple of years, the number of H-1B denials has risen dramatically. Immigration lawyers and applicants have maintained that the number of Requests for Evidence (RFEs) and denials has been much higher in recent years.

The newly introduced H-1B Employer Data Hub by USCIS also reveals that the incidents of denial have risen sharply, particularly in the past couple of years.

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“Denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019 for new H-1B petitions for initial employment, Between FY 2015 and FY 2018 the denial rate for new H-1B petitions quadrupled from 6% to 24%,” a report by the National Foundation for American Policy (NFAP), “H-1B Denial Rates: Past and Present,” says. “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 or 4 times higher.”

Immigration attorneys say that this year most employers have been very particular about making sure that their visa petitions met all the criterion of H-1B qualification. “It’s been two years of Trump and an increased scrutiny of applications,” says New Jersey-based Attorney, Gary Pasricha. “By now, I am hopeful that most established employers know that they have to be very particular and diligent about the applications so that there are lesser chances of a denial.”

He adds, “I am hopeful that we won’t have as many rejections from established companies as in the last year.”

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However, many attorneys point out that often rejections are not just because there was misrepresentation, or anything fraudulent about the petitions.

“While we agree that there is an increase in denials and RFE’s issued by USCIS, the fact is that many companies are more prepared while filing applications and are still seeing the same result,” says immigration attorney Sheetal Patel of Pasricha & Patel LLC says.  “Today, there are other may other factors that come into play too.”

Patel adds that it’s not just in the H-1B petitions of IT employers that are under increased scrutiny, but petitions filed by employers in other sectors such as healthcare and finance and are also facing similar scrutiny.

“For example, we sometimes see denials when placement is happening at the third-party site and an employer able to provide statements of work and vendor letters but is unable to provide documentation from an end client to support it as the end client has a policy of not issuing any letters to support an H-1B petition,” he says. “Many times, the requirement for such a position actually exists and the prospective candidate may even be working the end client site while in F-1 status and therefore has timesheets and other documents to establish legitimacy of the assignment. However, there can still be a denial simply for the reason that the end client did not issue a letter. There are certainly a lot of logistics involved and USCIS is often not willing to look further into alternative proofs, etc.”

Another reason for rejections, according to attorneys, is USCIS’s assumption that that a certain high-level position does not require a bachelor’s degree. “Denials are frequently issued by USCIS for reasons such as the offered position does not qualify as a specialty occupation (one requiring the minimum of a bachelor’s degree in specific field of study),” says Patel explains.  “I have seen cases where the applicant is extremely qualified and has multiple degrees in the field of the offered employment in a non IT position but the USCIS is not convinced that the offered position requires a bachelor’s degree in a specific field of study.”

Many attorneys also say that denials will remain the order of the day under the current administration. “I don’t think it is about ‘can we’ expect more rejections, it is ‘we already are,” says attorney Rekha Sharma Crawford of Sharma-Crawford Attorneys at Law. “This administration is bent on limiting all immigration into the US, rejections are just part of that scheme.”

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Trump administration proposes changes to streamline H-1B process(December 1, 2018)

Trump signs H-1B visa executive order ‘Buy American and Hire American’ (April 19, 2017)

Trump to sign executive order to overhaul H-1B visa program on Tuesday(April 18, 2017)

Anti-H-1B group sues the federal government to seek data from USCIS(April 20, 2018)

Trump administration may soon end H-4 Visa Rule: report (February 1, 2018)

Stronger economy may lead to more H-1B petitions (January 22, 2018)

Tech industry urges USCIS not to cancel H-4 spouses’ work permits(January 19, 2018)

Chuck Grassley again denounces H-1B visa program (January 18, 2018)

USCIS says it’s not ending H-1B visa extensions (January 9, 2018)

Proposed move to end H-1B extensions may affect up to 400,000 Indians in US (January 2, 2018)

DHS mulling major change to H-1B visa program (January 2, 2018)

H-1B visa changes in 2018: Employer preregistration, redefining the high specialty occupation, and withdrawal of work-permits of H-1B spouses(December 26, 2017)

Trump to end H-4 EAD program for spouses of H-1B workers (December 15, 2017)

H-1B visa petitioners will witness an increase in the number of denials this year, according to experts (December 11, 2017)

Indian IT companies are top recipients of L-1 visas, says USCIS report(October 13, 2017)