On July 25, 2018, the nonpartisan National Foundation for American Policy ("NFAP") published a report that confirms what business immigration attorneys have experienced for more than a year: USCIS' issuance of Requests for Evidence ("RFE"), and denials for H-1B Petitions have increased significantly under the current administration. Indeed, while more blatant measures such as ongoing family separation and the travel ban rightly continue to grab headlines and provoke outrage, the NFAP's report serves as another example of the Trump Administration's subtler, and highly effective, efforts to drive down legal immigration to the United States.

 According to the report, USCIS' increase in RFEs and denials with respect to H-1B filings did not begin effective January 21, 2017, likely due to the Administration needing time to settle-in and establish new policies for adjudication – such as the President's Buy America, Hire American Executive Order from April 2017. However, by the end of Fiscal Year 2017 (July 1, 2017 – September 30, 2017), the RFE rate skyrocketed to 69% of all H-1B Petitions submitted, with more than 1 in 5 being denied. By comparison, only 17% of H-1B Petitions were subjected to RFEs during President Obama's last months in office. In other words, within nine months of taking office, the H-1B RFE issuance rates increased by more than 400%.   

H-1B Petitions submitted on behalf of Indian Nationals received even greater scrutiny during this period. According to the report, Q4 of FY2017 saw USCIS issue RFEs for more than 72% of the H-1B Petitions with Indian National beneficiaries, as opposed to approximately 61% of Petitions filed on behalf of individuals from other countries.  The denial rate for Indian Nationals (23.6%) also exceeded that for all others (19.6%). USCIS also applied extra scrutiny on L-1 and O-1 Petitions submitted on behalf of Indian Nationals. Of particular note, nearly 80% of all O-1 Petitions submitted on behalf Indian Nationals during Q4 FY2017 were subjected to an RFE.

While noteworthy, the trends affecting L-1 and O-1 adjudications impact a much smaller subset of nonimmigrants than H-1B Petitions. Approximately 37,000 L-1 and O-1 Petitions were filed with USCIS in FY2017. On the other hand, USCIS received more than 404,000 H-1B Petitions between October 1, 2016 and September 30, 2017 (which, of course, does not include the more than 100,000 H-1B Petitions submitted in April 2017 but not selected in the H-1B Cap Lottery).

Indian Nationals, in particular, rely on the H-1B Program for ongoing employment authorization and status due to the prolonged backlogs they face. An increase in H-1B RFEs and denials will affect Indian Nationals even more acutely as they await their priority dates to become current, which is but one measure the Trump Administration has taken to make life more difficult for highly skilled Indian workers in the United States.

Still, whether an Indian National seeking a change of status to O-1B, an employer filing an H-1B Petition for a Spanish employee, or a multinational company seeking an L-1A Extension for its CEO from Kenya, policies that result in a greater number of RFEs and denials create difficulties to all. Moreover, the prospect of a denial with or without the issuance of an RFE could prove grave if USCIS moves forward with its delayed plan to issue Notices to Appear after denying petitions, meaning a rise in RFEs and denials poses risks to individuals from all over the world who are seeking H-1B, L-1, or O-1 status within the United States.

As always, Green and Spiegel will remain an attentive and trusted advisor during these uncertain times. If you have any questions or concerns regarding your case, please do not hesitate to contact our office.

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