On January 11, 2019, President Donald Trump tweeted, “H-1B holders can rest assured that changes are soon coming which will bring simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.” As with many things in his administration, the President’s actions are inconsistent with his words. In truth, at the urging of immigration hardliner and Presidential Advisor Stephen Miller, denials of Petitions filed by U.S. employers on behalf of high-skilled temporary professionals have soared.
Contrary to the President’s claims that he is encouraging H-1B workers to remain in the U.S., new data from the U.S. Department of Homeland Security points to a different reality. According to just-released statistics, the denial rate for new-employment H-1B’s filed in fiscal year (FY) 2019 has skyrocketed from 6% in FY 2015 to a staggering 32% in the first quarter of FY 2019 – an increase of more than 500%! For extensions – meaning Petitions for individuals previously approved for H-1B status – the denial rates rose from 3% in FY 2015 to 18% in the first quarter of FY 2019. In the span of four years – with no change in the law or the regulations – the denial rate for new H-1B workers increased five-fold while the denial rate for H-1B renewals increased six-fold. And, the proportion of cases receiving onerous, multi-page requests for supplemental evidence, has increased at an even greater rate.
The increased rate of denial can be traced to the President’s “Buy American, Hire American” Executive Order of April 2017. The issuance of that Executive Order sent a signal to adjudicators and their managers that they were expected to find reasons to deny more cases. And deny cases they have. In doing so, they have caused tremendous uncertainty for U.S. employers and hindered growth of U.S. companies that depend on high-skilled, often U.S.-educated, professionals – especially technology professionals – to help their companies compete in global markets.
Using contorted reasoning and distorted definitions, USCIS is implementing the Administration’s anti-immigrant policy. In the face of these arbitrary and inconsistent adjudications, lawyers are taking action, by bringing lawsuits against the government to compel the agency to defend its actions. In nearly every case, U.S. attorney’s have determined that the government’s position is legally indefensible and have advised their client – USCIS – to settle the lawsuits by approving the H-1B’s.