NFAP POLICY BRIEF FINDS HIGH DENIAL RATES FOR L-1 AND H-1B PETITIONS BY USCIS

The National Foundation for American Policy (NFAP) just issued a policy brief analyzing the government’s data which reveals that USCIS, our immigration agency, dramatically increased the denial rate 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.
This report is alarming and confirms what us immigration law practitioners have experienced in the past few years. It proves that USCIS adjudicators have artificially and arbitrarily increased the number of denials and time-consuming requests for additional evidence from employers, keeping more highly skilled professional workers outside the United States despite no change in law or regulations.
The visa that received the most scrutiny by USCIS is the L-1B visa used by international companies to bring their specialized knowledge workers. In FY 2011 63 percent of all L-1B petitions received a Request for Evidence and 27 percent were issued a denial, which means USCIS denied or delayed between 63 percent to 90 percent of all L-1B petitions during that time. Compared with only a 7 percent denial rate in FY2007, and only a 2 percent cases where USCIS requested additional evidence in FY2004, combined with the fact that employers now are much more selective about who they sponsor for this visa, this is a deliberate effort of USCIS to limit the use of this visa and it directly hurts international businesses because it is costing them millions in project delays and penalties.
The report stated that 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. 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 request for additional evidence for H-1B petitions was 26 percent.
It is alarming that almost a third of the H-1B visa cases are significantly delayed or denied by USCIS and employers are burdened with significant costs to respond to them and delay their projects. There is no logical reason why companies that are now more selective in hiring professional workers should face such advanced scrutiny where there is now more than twice the chance the application will be denied compared to prior years.
The L-1A visa is used by international companies to transfer managers and executives into the United States. Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. The Request for Evidence rate for L-1A petitions increased from 4 percent in FY 2004, to 24 percent in FY 2007, up to 51 percent in FY 2011.
The fact that during the most recent fiscal year, USCIS arbitrarily increased the denial rate or delay rate to half of the cases filed in this category of international managers or executives is outrageous. These are people we want to welcome to this country because they work for multinational corporations that make significant investments in the United States. They will not continue to do that if they will not be able to transfer their managers or executives from abroad to oversee expansion and similar projects.
The denial rates also increased for O-1A petitions, which are used for people with an extraordinary ability, who are in the top of their fields in the sciences, education, business, or athletics. 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. For O-1A petitions, the Request for Evidence rate increased from 1 percent in FY 2004, to 13 percent in FY 2007, and then more than doubled to 28 percent in FY 2009, 30 percent in FY 2010, and 27 percent in FY 2011.
This deliberate effort of USCIS to create additional hurdles on the O-1 visa applicants, who are the best and brightest in the world in what they do, is more than just bad for business. It is even worse for extraordinary researchers and scientists who are supposed to help us find cure to diseases or find the next new technology out there to solve many of our problems. These are the people the United States needs to attract and welcome with less hurdles, not more. Instead, the immigration agency is creating additional barriers to their entering the country by artificially increasing the heightened scrutiny and denial rates.
The best thing the immigration service can do is to make the process easier for all these professionals and companies because they are the kind of people we want to attract here and they represent the interests of billions of dollars in investments in this country. If USCIS wants to help create jobs, it needs to remove barriers to entry of the best and brightest, not create additional obstacles as it currently does. I think more employers now are willing to sue the government in order to protect their rights. We have helped a number of them do that successfully so there are options but they are more costly and difficult.

To read the NFAP report, go to: http://www.nfap.com/pdf/NFAP_Policy_Brief.USCIS_and_Denial_Rates_of_L1_and_H%201B_Petitions.February2012.pdf  

H-1B VISAS FOR FY2013

H-1B season is here again with new petitions for FY2013 (based on the government's fiscal year of 10/1/2012-9/30/2013). Employers who wish to file for their employees now prepare petitions for cap-subject applicants to start on 10/1/2012. USCIS will start accepting these applications on April 2, 2012 (because April 1st falls on a Saturday).
Even though the petitions can be filed in April, the actual start date cannot be sooner than October 1, 2012, the beginning of fiscal year 2013, unless certain conditions are met (For example a student in valid OPT status can continue to work throughout 10/1/2012 when a change of status request is approved).
USCIS changed its mind and decided not to go forward with the proposed advance registration rule of employers prior to filing H-1B petitions (See "Registration Requirement for Petitioners Seeking to File H-1B petitions on Behalf of Aliens Subject to the Numerical Limitations," Federal Register, Volume 76, No. 42, March 3, 2011). The proposed rule was opposed by many in the public comment stage including the Small Business Administration Office of Advocacy and is really unnecessary in these years where the cap did not get exhausted immediately.
Because the economy is improving, I project that H-1B visas will be reached much earlier in the fiscal year than last year (when it was exhausted late November).
Any employer that is contemplating filing an H-1B visa petition in the next year should do so sooner rather than later.

MARCH 2012 VISA BULLETIN ADVANCES IN SOME EMPLOYMENT CATEGORIES

The U.S. Department of State just issued the March 2012 visa bulletin.
Employment 1st – still current in all categories.
Employment 2nd – World numbers, Mexico, and Philippines still current, China and India jumped four months ahead to 01 May 10.
Employment 3rd – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China jumped one month to 01 January 05; India moved one week to 22 Aug 02.
Employment 3rd Other Workers – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China remains stalled at 22 April 03; one week advance for India to 22 August 02.
Employment 4th – still current in all categories.
Employment 5th – still current in all categories.
Sluggish advancement for those waiting for green cards.