The National Foundation for American Policy (NFAP), a non-profit, non-partisan public policy research organization, recently released an analysis of U.S. Citizenship and Immigration Services (USCIS) data on the number of H-1B and L-1 petition denials issued by the Agency in each fiscal year from 2003 to 2011. The results reveal a significant increase in the number of H-1B and L-1 denials beginning in FY2008 and continuous increase through FY2011, with a significant spike in FY2009, during which every visa category had a dramatic increase in denials.

The denial rate for L-1B visa petitions increased from 9% in FY2003 to 27% in FY2011. The denial rate for H-1B visa petitions increased from 12% in FY2003 to 17% in FY2011, peaking at 29% in FY2009. The data also shows that if a company received approval of its visa petition, it likely had to first overcome a Request for Evidence (RFE). In the past, RFEs were issued when USCIS case officers needed clarification or additional information to adjudicate a petition. Based on the statistics, it appears either the majority of employers have abruptly stopped filing complete petitions, or, more likely, USCIS has decided that they require more information than actually set forth in the regulations to adjudicate a case.

Most alarming is the increase in the number of RFEs issued for L-1B and L-1A cases, in particular. RFEs for L-1B cases more than tripled from FY2003 to FY2011, from 16% to 63%. Similarly, RFEs for L-1A cases went from 12% to 51% over the same period. Employers now are statistically guaranteed that one in every two L-1 petitions they file will be issued an RFE.

As there has been no significant change in the regulatory criteria for H-1B and L-1 status approval, this increase in petition denials and RFE issuance is an indication that USCIS adjudicators have changed their internal standards of review to make it more difficult for skilled foreign nationals to obtain work authorization in the United States.

The data also shows that USCIS denies more L-1B petitions for Indian nationals than any other country. Whether this is indicative that the Agency has targeted Indian nationals is unclear; however, employers who seek skilled Indian employees should be prepared for additional scrutiny. L-1 visa issuance declined at U.S. Consulates in India in FY2011, but actually rose overall for the rest of the world.

The NFAP study confirms what many U.S. employers already know: it is now more difficult than ever to hire or transfer critical foreign national employees whose presence is required to ensure continued product development and profitability. Jackson Lewis attorneys have experience in addressing and overcoming RFEs and visa denials on behalf of U.S. employers. We will continue to monitor and report USCIS trends and policy changes.