Many applicants filing for an H-1B, under the previous administration, had to contend with difficult Requests for Evidence, followed by erroneous denials. According to the National Foundation for American Policy (NFAP), a nonpartisan policy research group, the denial rates for H-1B petitions for initial (new) employment was as follows:
- 24% in FY 2018;
- 21% in FY 2019; and
- 13% in FY 2020.
These denial rates should be compared with 2015 where the denial rate was much lower, at just 6%. The reason the denial rate went down in 2020 is that a Federal Court ruled in June that USCIS’ reliance on certain policy memos was unlawful.
The majority of the denials under the Trump administration, particularly for IT Consulting firms, were based on two USCIS memos, one from 2010 which dealt with the Employer/Employee relationship and another from 2018 which required Employers to provide evidence of specific and non-speculative qualifying work assignment for the entire time requested on an H1B petition.
However, following the aforementioned Federal court decision, USCIS was forced to rescind both memos, which made it much more difficult for them to deny cases. In fact, after the memos were rescinded the denial rate for the fourth quarter for new employment was 1.5%, which was a dramatic decrease from the first three quarters which saw a denial rate of 21%.
FY 2021 started off with much lower denial ratings than the three previous years. The first two quarters of 2021, saw a denial rate of 7.1% (most of those denials occurring under the Trump administration). This is great news for those that file H-1Bs, especially when you consider that in the first two quarters of FY 2020 the denial rate was 28.6%. That’s a decrease of 21.5 % from 2020 to 2021.
With a new administration comes a much more favorable landscape so we can expect this denial rate to continue, and possibly decrease further. Also, for those applying for extensions, the denial rate is also dropping, especially as USCIS has restored its 2004 deference policy which requires it the agency to give deference to prior approvals.
If you have any immigration-related questions, please contact PLG Partner Chris Prescott at cprescott@patellegal.com.