IT Consulting Industry Hardest Hit by Jump in H-1B Denials (1)

Denials of temporary visas for skilled workers have increased steadily over the course of the Trump administration, hitting information technology consulting companies harder than others.

Big tech companies such as Microsoft, Amazon, Apple, and Google saw H-1B skilled guestworker approval rates approaching 100 percent in fiscal year 2018, according to new data from U.S. Citizenship and Immigration Services.

On the other hand, IT consulting giants saw lower approval rates, though most of their petitions were approved. For example, Cognizant Technology Solutions, the top petitioner for H-1B visas with 13,584 combined initial and renewal petitions for the year, saw only a 68 percent approval rate. Capgemini’s approval rate lagged at 60 percent, while Infosys Ltd.'s approval rate was 74 percent and HCL America Inc.’s was 79 percent.

Tata Consultancy Services, the second highest H-1B sponsor with 10,656 initial and renewal petitions for FY 2018, had an 82 percent approval rate.

Targeted for More Information

Visa denial rates for those companies largely align with two of the top reasons the USCIS asked H-1B employers for additional evidence during FY 2018: to establish an employer-employee relationship between the H-1B worker and the consulting company, and to show that the H-1B worker has definite assignments lined up for the duration of the visa.

The requests, known as RFEs, ask employers to provide additional information on a particular issue so that the USCIS adjudicator can decide on whether to grant or deny the visa petition.

Those two bases for RFEs stem from a USCIS policy on additional requirements for employers that send their H-1B workers to third-party client sites.

“Ensuring the integrity of the immigration benefits system is one of this administration’s guiding principles in the effort to strengthen employment-based visa programs and protect American workers,” USCIS spokeswoman Jessica Collins said in a statement provided to Bloomberg Law Feb. 22.

In order to implement President Donald Trump’s Buy American and Hire American executive order, the agency “made a series of reforms designed to protect U.S. workers, increase our confidence in the eligibility of those who receive benefits, cut down on frivolous petitions, and improve the integrity and efficiency of the immigration petition process,” she said.

‘Fishing Expedition’

“The RFE has essentially become just a fishing expedition,” immigration attorney Ashwin Sharma of the Sharma Law Office in Jacksonville, Fla., told Bloomberg Law Feb. 22. The agency appears to be targeting “an otherwise solid case that almost no logical human being on earth would consider querying” for an RFE, and then using the additional information provided in response to “look for other things that are wrong” with the petition, he said.

As H-1B approval rates have declined overall, the approval rates for petitions that previously received an RFE are even lower. So far in FY 2019, 75.4 percent of H-1B petitions were approved, compared with 61.5 percent of H-1B petitions that received an RFE.

The percentage of H-1B petitions that have received an RFE has skyrocketed, going from 22.3 percent in FY 2015 to 60 percent in the first quarter of FY 2019.

The USCIS characterizes RFEs as “an additional opportunity afforded to applicants or petitioners to submit requisite evidence to avoid being denied.”

“It is incumbent upon the petitioner, not the government, to demonstrate that he or she meets the eligibility under the law for a desired immigration benefit,” agency spokeswoman Collins said.

Yet the data also show a steady decline in the overall number of H-1B petitions approved since the start of the Trump administration. Total H-1B approvals dropped from 95.7 percent in FY 2015 to 84.5 percent in FY 2018, and to 75.4 percent for the first quarter of FY 2019.

The same is true for other temporary skilled visa programs, including the L-1 program for workers transferring to the U.S. branch of a multinational company. Approvals have declined from 80.8 percent in FY 2017 to 74.4 percent so far in FY 2019.

Only R-1 visas for religious workers have seen an increase in approvals, going from 91.6 percent in FY 2017 to 95.2 percent so far in FY 2019.

Stricter Scrutiny

The Trump administration has taken a hard line with H-1B specialty occupation visas, focusing largely on the IT industry. Trump made an overhaul of the H-1B program part of his campaign platform in the wake of earlier reports of U.S. workers losing their jobs to H-1B workers employed by IT consulting companies and being required to train their replacements.

The H-1B program also is the only visa program specifically mentioned in Trump’s BAHA executive order.

When RFEs and denials first started increasing, Sharma said he gave the USCIS “the benefit of the doubt” and decided it was “just being strict.” Now, however, he’s convinced that the agency is deliberately trying to waste employers’ time.

“Anything you send them they plan to use against you,” he said.