A newly-issued report from the National Foundation for American Policy (NFAP) confirms that, after several years of steeply elevated denial rates, rates of approval for H-1B filings have returned to pre-Trump levels. In a reverse from four years of politically-motivated denials of legally approvable cases, practitioners are seeing more regularized adjudications, with a substantial drop-off in seemingly arbitrary requests for evidence and denials.
The return to law-based adjudication can be attributed to three factors: the withdrawal of the last administration’s restrictionist “Buy American Higher American” Executive Order, a change in agency leadership with the hiring of administrators who actually follow the law, and a string of decisions and settlements arising from federal lawsuits contesting the lawless abuses of Trump’s restrictionist minions.
To illustrate, for FY2021, the denial rate for new H-1B petitions for initial employment was 4%. In contrast, by flouting the law, the last administration reported denial rates of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020. The substantive characteristics of the cases has not changed; only the interpretation and application of the regulations has changed; from a politically-driven mandate to reject lawful cases to an adjudicatory process based on law and precedent.
The demand of U.S. employers for qualified, educated, high-skilled professionals continues unabated. History tells us that restricting immigration does not help to grow the U.S. economy; to the contrary, statistics demonstrate that periods of economic growth are matched by periods of more flexible immigration, both at the high-skilled and low-skilled ends of the labor force. With the continued stalemate in Congress, there is little hope for substantive change to the low limits and restrictions imposed law.
In view of the hopelessness of any action by Congress, reports of more consistent, law-based decisions from USCIS offer some improvements for U.S. employers, H-1B-eligible beneficiaries and the U.S. economy. To review the NFAP report, click here. For information on H-1B filing and trends, please contact us.