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Jump in H-1B Denials Affecting All Companies Seeking Visas

April 10, 2019, 7:53 PM

Nearly a third of H-1B visa petitions have been denied so far in fiscal year 2019, lending credence to employers’ and immigration attorneys’ complaints that getting the visas is becoming more difficult.

U.S. Citizenship and Immigration Services denied 32 percent of initial H-1B skilled guestworker petitions in the first quarter of the fiscal year, up from 24 percent in FY 2018 and just 5 percent in FY 2012, according to a new analysis of USCIS data by the National Foundation for American Policy.

“Clearly there’s been a new standard for approving cases in which an H-1B visa holder is going to be doing work at a third-party site,” said Stuart Anderson, the NFAP’s executive director. But the “little picture” is that denials are going up for other companies as well and for employers seeking to extend the H-1B status of existing workers, he said.

And that could result in those companies simply employing those workers overseas rather than opening up the jobs to U.S. workers, he said.

The analysis used data from the USCIS’s new H-1B Employer Data Hub, an online data tool the agency released in conjunction with this year’s H-1B filing season. April 1 was the earliest date employers could file petitions for H-1B workers subject to the annual cap who will start work in FY 2020, which begins Oct. 1.

‘Well-Known Companies’

The new data expand on figures the agency released in late February. That data also showed an increase in denials, particularly for consulting companies that place their H-1B workers at third-party client sites.

Yet some of the big-name companies are feeling the effects as well.

“These are well-known companies” like Amazon, Google, and Microsoft, Anderson said. It’s not some startup company that “doesn’t know what they’re doing” and submits a bunch of H-1B petitions that don’t meet the criteria, he said.

For instance, Amazon’s denial rate for continuing employment petitions jumped from 1 percent in FY 2015 to 17 percent in FY 2019. IBM went from 1 percent to 29 percent during that same time period.

Those companies aren’t abusing the H-1B program in the sense that they’re violating the law or otherwise committing fraud, Eric Ruark, director of research for NumbersUSA, said. But they are passing over qualified U.S. workers to sponsor foreign workers for H-1B visas instead, he said.

Previous agency heads were more likely to cater to businesses and interpret the law in a way that benefited them, said Ruark, whose organization supports lower immigration levels. “They’re used to having their way, and when they don’t get their way, they’re crying foul,” he said.

Reflection of Director

The NFAP analysis comes amid speculation that President Donald Trump may be replacing USCIS Director L. Francis Cissna, who’s been in the position since October 2017. NumbersUSA and other low-immigration advocates have been fighting to keep him in place, in part because of his track record on H-1Bs.

The figures on H-1B denial rates are “evidence that Francis Cissna is doing his job and doing a good job at USCIS,” Ruark said.

“As part of our efforts to fulfill President Trump’s ‘Buy American and Hire American’ executive order, USCIS has 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,” agency spokeswoman Jessica Collins said in an email. “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.”

Anderson said that “the idea that by denying a lot of these visas you’re opening up more jobs for U.S. workers is questionable in the context of a global economy. Companies can move people to other countries, and they also can move more work to other countries, which in the long run is not going to be good for U.S. workers.”

But Ruark said the increased denial rates aren’t a sign that fewer H-1B visas are being awarded overall. They’re just going to “more deserving applicants,” he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Phil Kushin at pkushin@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com