The Recent Increase in H-1B RFEs and Denials: Implications for Employers and Petitioners

The U.S. Citizenship and Immigration Services (USCIS) has been issuing more and more requests for evidence (RFEs) in recent years, effectively increasing the barriers to H-1B visa applications. This trend harks back to the Trump administration's speculative and selective focus on tightening immigration policies, particularly in the realm of legal immigration.

USCIS's Use of RFEs to Restrict Legal Immigration

The Trump administration has deliberately shifted the national immigration debate towards the southern border. However, behind the scenes, the USCIS has been increasing the issuance of RFEs, which demand amplified evidence beyond the original applications. These RFEs call into question the legitimacy of the initial petitions and can significantly delay the application process. Employers and attorneys must gather and submit additional information, which often results in added time and costs.

Surging RFEs in Recent Years

During the first quarter of the 2019 fiscal year, the USCIS issued RFEs to 60,650 companies who had applied for H-1B visas on behalf of foreign workers, covering both extensions and new hires. This figure represents a staggering increase from the 44,338 RFEs issued in the same quarter of the previous fiscal year, a 26.9% surge. Comparatively, the 2017 data shows 26,799 RFEs were issued. This indicates a 55.8% increase in applicants receiving requests for supplemental documents over the last two years.

Declining Approval Rates

The increasing number of RFEs follows closely with a drop in the approval rate for H-1B visa applications. Over the past two years, the approval rate for H-1B visas has seen a significant decline. The first quarter data of 2017 and 2019 showed that 92.1% and 75.4% of applications were approved, respectively. This represents an 18% drop in approvals.

The "Buy American, Hire American" Executive Order

The rise in RFEs and denials can be directly linked to the "Buy American, Hire American" executive order, which stipulates that H-1B visas should be awarded to the "most-skilled or highest-paid petition beneficiaries." Many of the RFEs are focused on proving that sponsored jobs are "specialty occupations," which is a fundamental requirement for H-1B visas. Additionally, companies are often required to provide evidence of an employer-employee relationship and to show specific work assignments throughout the visa's duration.

USCIS's Justifications and Criticisms

According to Jessica Collins, the USCIS spokesperson, the agency has implemented reforms aimed at enhancing the integrity and efficiency of the petition process. These include increasing the confidence of approval for eligible beneficiaries, cutting down on frivolous petitions, and improving the overall process. However, critics argue that the increase in RFEs and denials has led to a significant backlog, causing bureaucratic red tape that ties up the entire H-1B petition process.

Expected Trends for the Future

Further spiraling trends are anticipated. In the first quarter of the 2019 fiscal year, 25,000 H-1B applications were denied, marking a 50% increase from the previous year. This increase further underscores the tightening of the H-1B visa allocation and the potential for even more denials in the coming quarters.

For employers and petitioners, the current climate is challenging. The increasing frequency of RFEs and denials means a heightened risk of application rejections. It is crucial for companies to navigate the complexities of the H-1B visa process carefully, ensuring that all required documentation is meticulously prepared to avoid RFEs. Seeking the guidance of experienced legal counsel can provide invaluable support in managing the uncertainties of the H-1B visa application process.