USCIS’s increased scrutiny of petitions will not come as news to business immigration professionals. Recently released data provides further verification of evolving adjudicative standards, with figures from USCIS noting that denials and requests for evidence (RFE’s) on H-1B petitions have sharply increased following the implementation of President Trump’s “Buy American and Hire American” executive order. The denial rate for H-1B petitions grew from 15.9% in the third quarter of Fiscal Year (FY) 2017 to 22.4% in the fourth quarter of FY 2017, an increase of over 40%. Further, the number of RFE’s issued in the fourth quarter of FY 2017 (63,184) is nearly equal to the total number of RFE’s issued for the first three quarters of FY 2017 (63,599).
Publicly available data suggests this trend continues into FY 2018. The denial rate for L-1B petitions was 30.5% for the first quarter of FY 2018, an increase from 24% in FY 2016 and 27% in FY 2017. The denial rate for L-1A petitions increased from 12.8% in the first quarter of FY 2017 to 21.4% in the fourth quarter of FY 2017. The National Foundation for American Policy’s analysis further details the increase in RFE’s for O-1 petitions through FY 2017.
In addition to the increased number of denials and RFE’s, USCIS has issued a number of policy memos which could have significant consequences for foreign nationals in the United States. USCIS’s memo on Notices to Appear, for example, states that foreign nationals can be placed in deportation proceedings if their nonimmigrant petitions are denied and they no longer maintain alternative valid status. And another recent policy memo outlines USCIS’s new ability to deny non-immigrant petitions without issuing any RFE, a significant change from prior practice.