Steep Increase in Professional-Level Visa Denials and Delays

Update:  The Business Roundtable, comprised of CEOs from some of the nation’s largest and most influential companies, sent a letter on August 22, 2018 to Department of Homeland Security Secretary Kirstjen Nielson outlining the damage that the Administration’s various policy changes are causing employers and the U.S. economy.  Changes in adjudication practices such as those noted below are just one of the many that the letter notes. Read the letter here.

The National Foundation for American Policy (NFAP) has released a report highlighting a dramatic increase in the number of denials, and requests for evidence (RFEs) that delay adjudication, of petitions for extraordinary ability, professional level. and specialty occupation foreign workers under the Trump Administration.

Looking at FY 2017 government data (October 1, 2016 – September 30, 2017), the NFAP found that the increase in denials and RFEs for H-1B professional specialty occupation workers spiked in the 4th quarter of FY 2017, shortly after President Trump issued his Buy American and Hire American Executive order.   In that quarter, the number of H-1B RFEs was nearly equal to the total number of RFEs issued in the first three quarters of FY 2017.  Indeed, the NFAP noted that 69% of H-1B petitions considered in Q4 of FY2017 received RFEs, compared to 17% in Q1, the last quarter under the Obama administration.  And RFEs relating to H-1B petitions filed on behalf of Indian citizens were notably higher than for those filed for citizens of other countries.  Similar marked increases of outright denials of petitions were noted in the 4th quarter, with Indian citizens bearing the largest brunt.

The increase in H-1B denials and RFE’s is perhaps unsurprising, given other changes that this administration has undertaken, such as no longer deferring to a prior USCIS approval when an employer applies for an extension of the exact same worker for the exact same job, as had been long-standing practice.

The NFAP report also found increases in RFEs and denials of petitions, particularly for Indian citizens, for L-1 intracompany transferees, and for O-1 “extraordinary ability workers” in FY 2017.

The increase in RFEs continued in the first two quarters of FY 2018, according to the NFAP, indicating that the FY 2017 numbers were likely the start of a trend, not a blip.

The upshot of the increase in RFEs is delay and uncertainty for both employers and foreign born workers, even if the visa petitions are ultimately approved after the the government receives and considers the additional evidence.   Denials obviously mean that the employer will not be able to employ the employee.   The Society of Human Resource Management has noted the increasing difficulty that these changes are causing employers in their talent acquisition efforts nationwide.

As the NFAP’s director points out in this Forbes commentary, economists have noted the positive effects that foreign born STEM employees in particular bring to the U.S. economy, and the wage growth of native born employees that results from importation of H-1B workers.  Administration efforts to effectively shrink the number of foreign born professional workers in the country are misguided.

These delays and denials are part of a series of barriers that the Administration has been imposing that make it harder for U.S. employers to get the talent that they need, regardless of where they were born. .   The full effects on our economy have not yet been felt, but without a course correction from this administration, they will be. 

Read the full NFAP report here.