Immigration
New Study Finds Dramatically Increased Rates of Denials and “Requests for Evidence” for H-1B Professionals, L-1 Intracompany Transferees
With its analysis of new data from the government, the nonprofit, nonpartisan National Foundation for American Policy (NFAP) makes crystal clear: Over the past four years, the U.S. Citizenship and Immigration Services (USCIS) has dramatically increased its denials of L-1 and H-1B petitions and much of the increase in denials involves Indian-born professionals and researchers. NFAP also reports a dramatic increase in denials of O-1 “extraordinary ability” petitions, and an across-the-board increase in requests for additional evidence (RFEs) for all of these categories. The data suggests that USCIS has changed the standards for these petitions, beginning in 2008-09, despite no change in the law or relevant regulations and, as a result, has demonstrated its capacity to keep skilled foreign nationals out of the United States. Here are some of the statistics from the report:
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Denial rates for L-1B “specialized knowledge” petitions rose from 7 percent in FY07 to 27 percent in FY11. In FY11, 63 percent of L-1B petitions were delayed due to RFEs; in FY04, only 2 percent received RFEs.
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Denial rates for L-1A executives and managers petitions increased from 8 percent in FY07 to 14 percent in FY11. RFEs increased from 4 percent in FY04 to 51 percent in FY11.
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Denial rates for H-1B petitions increased from 11 percent in FY07 to 17 percent in FY11. (In FY09, the denial rate was 29 percent.) RFEs rose from 4 percent in FY04 to 26 percent by FY11. (In FY09, the RFE rate was 35 percent.)
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Denial rates for O-1A extraordinary ability petitions rose from 4 percent in FY08 to 8 percent in FY11. For O-1As, RFEs increased from 1 percent in FY04 to 27 percent in FY11,
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Country-specific data on new (initial) L-1B petitions indicate USCIS is more likely to deny a petition from an Indian-born professional than from a national of another country. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent FY08 to 13.4 percent in FY11. (In FY09, the rate was 22.5 percent.) The drop in FY11 Indian denials can be attributed to a 40 percent decline in the number of receipts for new L-1B petitions for Indian professionals between FY10 and FY11.
Employers already are selective about who they sponsor and thus petition for those who they believe meet the standard for approval. They complain, rightly so, that the time lost due to the increase in denials and RFEs are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States. Denying these businesses the ability to transfer these key personnel harms innovation and job creation in the U.S. and encourages employers to keep more resources outside the country to ensure predictability.
As noted by NFAP, the dramatic increase in denial and RFE rates for employment petitions raises serious questions about the training, supervision, and procedures of adjudicators and of the government’s commitment to maintaining a stable business climate for companies competing in the global economy.
H-1B Professional Visa – It’s Filing Season
On April 1, employers will be able to file H-1B petitions for their employees who require a first-time H-1B visa for work that will commence on Oct. 1, 2012. Now is not too soon to identify new H-1B employees and begin preparing necessary petitions. With increased denial rates and skyrocketing requests for additional evidence, employers may be able to avoid costly delays or denials with meticulous, careful planning and preparation. (See more below.) A review of company H-1B public access files also may be prudent to ensure that files are complete and in full compliance as well as to determine that valid employer-employee relationships have been maintained.
While we anticipate that visas will remain available beyond April 1, H-1B visas will be used up much more rapidly as the economy recovers. Under immigration rules, first-time H-1B visas are limited to 85,000 per fiscal year.
Stateside Waiver Process for “Unlawful Presence”
In early January, DHS announced its intent to propose a change that would allow spouses and children of U.S. citizens who are in the U.S. but need a waiver of ”unlawful presence” in order to get a green card to apply for that waiver while remaining in the United States. What does this mean and who is affected?
Background: Under current immigration law, U.S. citizens can apply for green cards for their immediate relatives even if their relatives entered the United States without inspection or are otherwise out of status. However, for these individuals to receive their green cards, most applicants must travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. They cannot adjust their status to a lawful permanent resident (LPR) in the United States. Moreover, often those relatives have accrued a certain period of “unlawful presence” in the United States, and once they leave, they are barred from returning to the United States for as long as three or 10 years. Under the current process, these individuals must first have an initial interview at their home consulate, and only then can they apply for the required waiver at the home consulate. The rules also require that they show that their U.S. citizen spouse or parent would face “extreme hardship” as a result of the separation. (Extreme hardship to a U.S. child is insufficient.) All of this takes time, and as a result, waiver decisions often takes weeks, months, or even years to be completed.
DHS’s proposal would permit, for the first time, eligible spouses and children of U.S. citizens to apply for a provisional waiver before leaving the United States even though they would still need to show that a lengthy bar from the United States would cause their U.S. citizen spouse or parent “extreme hardship.” If approved, they will have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. Because this new streamlined process is limited to those individuals who are inadmissible based solely on having accrued a period of unlawful presence, if other grounds of inadmissibility are found, the individual would need to submit another waiver application while abroad.
The new process is limited, however, and would not apply to family members of lawful permanent resident (LPR) petitioners. Furthermore, individuals would still need to meet the extreme-hardship standard to obtain a provisional waiver, because USCIS does not intend to modify the standards.
While the proposed change is narrowly construed, the provisional waiver procedure as outlined by DHS is nevertheless a step in the right direction for those eligible. In many cases, the provisional waiver will reduce the wait period abroad and the separation from the applicant’s family by several months or years, will provide a more predictable process, and will encourage those eligible to begin the process to regularize their status. It is, in fact, this quirk in the immigration laws that has contributed to the large number of undocumented foreign nationals in the United States.
It is unclear when the new process will take effect but presumably by the end of the year. DHS first must issue a notice of proposed rule-making, invite public comment and then issue a final rule.
Dilip Patel of Shutts & Bowen LLP, a Florida Bar board certified expert on immigration law, can be reached at (813) 855-0066 or e-mail [email protected]