H-1B AND L-1 PETITION DENIALS AND REQUESTS FOR EVIDENCE HAVE INCREASED DURING TRUMP ADMINISTRATION

Written by: Taher Kameli, Esq.

Much has been said about the hostile policies of the Trump administration toward undocumented immigrants.  While the issue probably receives less attention, the Trump administration also has not proceeded favorably with legal immigration alternatives.  Specifically, based on U.S. Citizenship and Investment Services (USCIS) updated data issued on August 7, H-1B and L-1 petition denials and requests for evidence (RFEs) have increased during the Trump administration.

During the first 3 quarters of the current October 1, 2018 to September 30, 2019 fiscal year (through June 30, 2019), USCIS denied 16.1% of initial completed H-1B petitions.  During the prior October 1, 2017 to September 30, 2018 fiscal year, USCIS denied 15.5% of initial completed H-1B petitions. These 16.1% and 15.5% numbers are significantly higher than the denial rate for initial completed H-1B petitions of 4.3% for the October 1, 2014 to September 30, 2015 fiscal year, and the denial rate for initial completed H-1B petitions of 6.1% for the October 1, 2015 to September 30, 2016 fiscal year.       

During the first 3 quarters of the current October 1, 2018 to September 30, 2019 fiscal year (through June 30, 2019), USCIS issued RFEs for 39.6% of initial completed H-1B petitions.  During the prior October 1, 2017 to September 30, 2018 fiscal year, USCIS issued RFEs for 38.0% of initial completed H-1B petitions. These 39.6% and 38.0% numbers are significantly higher than the “RFE” rate for initial completed H-1B petitions of 22.3% for the October 1, 2014 to September 30, 2015 fiscal year, and the “RFE” rate for initial completed H-1B petitions of 20.8% for the October 1, 2015 to September 30, 2016 fiscal year.

In addition, the percentage of ultimately approved H-1B petitions for which an RFE was issued has significantly declined from 83.2% for the October 1, 2014 to September 30, 2015 fiscal year, and 78.9% for the October 1, 2015 to September 30, 2016 fiscal year, to 62.4% for the October 1, 2017 to September 30, 2018 fiscal year, and 62.7% for the first 3 quarters of the current October 1, 2018 to September 30, 2019 fiscal year (through June 30, 2019).

There is generally a similar trend in the numbers for L-1 petitions.  During the first 3 quarters of the current October 1, 2018 to September 30, 2019 fiscal year (through June 30, 2019), USCIS denied 28.0% of initial completed L-1 petitions.  During the prior October 1, 2017 to September 30, 2018 fiscal year, USCIS denied 22.2% of initial completed L-1 petitions. These 28.0% and 22.2% numbers are significantly higher than the denial rate for initial completed L-1 petitions of 16.3% for the October 1, 2014 to September 30, 2015 fiscal year, and the denial rate for initial completed L-1 petitions of 15.0% for the October 1, 2015 to September 30, 2016 fiscal year.       

During the first 3 quarters of the current October 1, 2018 to September 30, 2019 fiscal year (through June 30, 2019), USCIS issued RFEs for 53.7% of initial completed L-1 petitions.  During the prior October 1, 2017 to September 30, 2018 fiscal year, USCIS issued RFEs for 45.6% of initial completed L-1 petitions. These 53.7% and 45.6% numbers are significantly higher than the “RFE” rate for initial completed L-1 petitions of 34.3% for the October 1, 2014 to September 30, 2015 fiscal year, and the “RFE” rate for initial completed L-1 petitions of 32.1% for the October 1, 2015 to September 30, 2016 fiscal year.

In addition, the percentage of ultimately approved for which an RFE was issued has decreased from 53.5% for the October 1, 2014 to September 30, 2015 fiscal year, and 55.6% for the October 1, 2015 to September 30, 2016 fiscal year, to 52.9% for the October 1, 2017 to September 30, 2018 fiscal year, and 50.7% for the first 3 quarters of the current October 1, 2018 to September 30, 2019 fiscal year (through June 30, 2019).

Whether due to a good faith different interpretation of the applicable standards to approve H-1B and L-1 petitions (for example, on the “specialty occupation” definition with respect to H-1B petitions) or a bias against “legal immigration” petitions, the above-described data clearly indicates that the Trump administration is less favorable to H-1B and L-1 petitions than was the administration of President Barack Obama.  This result should not be surprising given the statement in President Trump’s April 18, 2017 Executive Order, “Buy American and Hire American”, that it “shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad”. What is especially interesting is that this negative approach by the Trump administration is with respect to “employment-based” or “business” immigration (H–1B and L-1 petitions) – sources of immigration that one might expect President “businessman” Trump to support.  However, even in this area of immigration, the Trump administration is not evidencing a favorable attitude. With this approach to immigration by the Federal government under President Trump, immigrants need to hire skilled immigration law counsel to safeguard their rights, such as the Law Offices of Kameli and Associates, which for years has successfully represented immigrants with their immigration petitions.

If you need help with any immigration petition or any other immigration issue, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for support.