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Newly Released USCIS Data Confirms Increase in Number of Requests for Evidence and Denials of Non-Immigrant Visa Petitions

March 11, 2019

USCIS recently provided updated data showing there has been a decline in approvals and higher rates of requests for evidence (RFE) for several key employer-sponsored non-immigrant visa categories.

The newly released data, which includes non-immigrant visa submissions relating to RFEs from fiscal year (FY) 2015 through the first quarter of FY 2019, data on the top 30 employers with the most initial and continuing H-1B approvals for FY 2018 and information on the highly utilized H-1B, L1, O1 and TN non-immigrant visa categories, reflects government adjudication patterns for both the Obama and Trump administrations.

Between 2015 and 2018, the overall rate of H-1B approval fell from 95.7% to 84.5%, and the approval rate for the H-1B category in the first quarter of FY 2019 was 74.5%. Meanwhile, between FY 2015 and FY 2018, H-1B RFE rates rose from 22.3% to 38% and stood at 60% in the first quarter of FY 2019.

In addition, the data reveals that employers in the IT consulting industry experienced higher than average RFE and denial rates, consistent with greater scrutiny and restrictive agency policies concerning H-1B eligibility for certain technology occupations and the third-party placement of H-1B workers.

While the data discloses how many H-1B cases were approved after an RFE was issued, it does not consider the number of U.S. employers who might have chosen to withdraw their submissions due to the onerous nature of the RFE and the time and energy required to respond to the lengthy and detailed nature of government inquiries.

The data further disclosed that the approval rate for TN visa petitions filed at the USCIS Vermont Service Center fell between FY 2015 and FY 2018 from 95.1% to 88.2%. Approval of the TN visa category declined more significantly after USCIS limited the use of the TN economist category.

The data also included the TN and O1/O2 category reported declines as well, but did not account for processing of TN adjudications at U.S. ports of entry. Data did not encompass information regarding L1 visa petition submissions filed directly at consular posts.

It is clear that non-immigrant visa processing has become more challenging, and it is highly advisable for our clients to secure legal advice in strategizing how to prepare and secure an approvable petition from the outset. This is especially important in the H-1B cap filing period, which culminates in the filing of new H-1B petitions by the end of the first week of April 2019.

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