With its analysis of new data from the government, the nonprofit, nonpartisan National Foundation for American Policy (NFAP) makes crystal clear: Over the past four years, the U.S. Citizenship and Immigration Services (USCIS) has dramatically increased its denials of L-1 and H-1B petitions and much of the increase in denials involves Indian-born professionals and researchers. NFAP also reports a dramatic increase in denials of O-1 “extraordinary ability” petitions, and an across-the-board increase in requests for additional evidence (RFEs) for all of these categories. The data suggests that USCIS has changed the standards for these petitions, beginning in 2008–09, despite no change in the law or relevant regulations and, as a result, has demonstrated its capacity to keep skilled foreign nationals out of the United States. Here are some of the statistics from the report:
Denial rates for L-1B “specialized knowledge” petitions rose from 7% in FY07 (Fiscal Year 2007) to 27% in FY11 (Fiscal Year 2011). In FY11, 63% of L-1B petitions were delayed due to RFEs; in FY04, only 2% received RFEs.
Denial rates for L-1A executives and managers petitions increased from 8% in FY07 to 14% in FY11. RFEs increased from 4% in FY04 to 51% in FY11.
Denial rates for H-1B petitions increased from 11% in FY07 to 17% in FY11. (In FY09, the denial rate was 29%.) RFEs rose from 4% in FY04 to 26% by FY11. (In FY09, the RFE rate was 35%.)
Denial rates for O-1A extraordinary ability petitions rose from 4% in FY08 to 8% in FY11. For O-1As, RFEs increased from 1% in FY04 to 27% in FY11.
Country-specific data on new (initial) L-1B petitions indicate USCIS is more likely to deny a petition from an Indian-born professional than from a national of another country. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8% FY08 to 13.4% in FY11. (In FY09, the rate was 22.5%.) The drop in FY11 Indian denials can be attributed to a 40% decline in the number of receipts for new L-1B petitions for Indian professionals between FY10 and FY11
Employers already are selective about who they sponsor and thus petition for those who they believe meet the standard for approval. They complain, rightly so, that the time lost due to the increase in denials and RFEs are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States. Denying these businesses the ability to transfer these key personnel harms innovation and job creation in the U.S. and encourages employers to keep more resources outside the country to ensure predictability.
As noted by NFAP, the dramatic increase in denial and RFE rates for employment petitions raises serious questions about the training, supervision, and procedures of adjudicators and of the government’s commitment to maintaining a stable business climate for companies competing in the global economy.
Amy M. Landwehr
Immigration Law Iowa