Research Shows High Denial Rate of H and L Visas

Research Shows High Denial Rate of H and L Visas reported that analysis of new data obtained from U.S. Citizenship and Immigration Services (USCIS) reveals the agency has dramatically increased denials of L-1 and H-1B petitions over the past four years, harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States. (Find the National Foundation for American Policy report here.) Data indicate much of the increase in denials involves Indian-born professionals and researchers. U.S. Citizenship and Immigration Services adjudicators have demonstrated a great capacity to keep skilled foreign nationals out of the United States by significantly increasing denials, along with often time-consuming Requests for Evidence (RFE), despite no change in the law or relevant regulations between 2008 and 2011. Attorneys provide numerous examples of superfluous Requests for Evidence. Employers say delaying applications for months effectively kills applications for people working on time-sensitive projects. L-1B petitions are used to transfer employees already working abroad for the company with “specialized knowledge” into the United States, while employers use H-1B petitions so that international students or skilled foreign nationals from abroad can work in the United States. Since obtaining a green card (for permanent residence) can take years or potentially decades, denying applications for L-1 or H-1B temporary status, in effect, prevents highly skilled foreign nationals from working in the United States. Some say that creates more opportunities for Americans but that wrongly assumes the number of jobs in America is fixed, that skilled foreign nationals don’t create complementary jobs and that companies will not transfer more work out of the country if prohibited from hiring or transferring in the people they need for projects, servicing customers or product development. The evidence indicates adjudicators or others at U.S. Citizenship and Immigration Services changed the standard for approving L-1B and other petitions in recent years, beginning in FY 2008 and FY 2009. If one considers that in FY 2011 63 percent of all L-1B petitions received a Request for Evidence and 27 percent were issued a denial, that means U.S. Citizenship and Immigration Services adjudicators denied or delayed between 63 percent to 90 percent of all L-1B petitions in 2011. In comparison, in FY 2004, only 2 percent of L-1B petitions for employees with specialized knowledge involved a Request for Evidence. The high denial rates belie the notion adjudications have become more lenient. Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States. Given the resources involved, employers are selective about who they sponsor. The high rate of denials (and Requests for Evidence) is from a pool of applicants selected by employers because they believe the foreign nationals meet the standard for approval. In short, the United States is being deprived of talented people who help create jobs and innovations, particularly when able to work alongside their American counterparts. Country specific data on new (initial) L-1B petitions indicate U.S. Citizenship and Immigration Services is more likely to deny a petition from an Indian-born professional than nationals of other countries. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent in Fiscal Year 2008 to 22.5 percent in FY 2009. In comparison, the denial rate for new L-1B petitions for Canadians rose from 2.0 percent in FY 2008 to only 2.9 percent in FY 2009. Overall, denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009. For H-1B petitions, the Request for Evidence rate rose from 4 percent in FY 2004, to a high of 35 percent in FY 2009, according to USCIS. The dramatic increase in denial rates and Requests for Evidence for employment petitions without any change in the law or regulations raises questions about the training, supervision and procedures of the career bureaucracy that adjudicates petitions. It also raises questions about the U.S. government’s commitment to maintaining a stable business climate for companies competing in the global economy.