As many in the field have observed, obtaining an H-1B or L-1B/A visa, along with other visa types, has become more difficult in the wake of President Trump’s “Buy American and Hire American” executive order. Most notable has been an increase in denials and requests for evidence (RFEs), which are serving as an end-run around the usual pathway to change through law, regulation, and policy. The ultimate outcome is that admissions of highly skilled foreign-born scientists, engineers, and other professionals are being curtailed.
New U.S. Citizenship and Immigration Services (USCIS) statistics confirm this phenomenon. In FY 2015, 95.7 percent of H-1B specialty occupation petitions for a nonimmigrant worker (Form I-129) were approved, and the approved petitions with an RFE were at 83.2 percent. By FY 2018, approvals had dropped to 84.5 percent, with approved petitions with an RFE at 62.4 percent. So far in FY 2019, approvals are at 83.9 percent, with approved petitions with an RFE at 62.7 percent.
Also, in FY 2015, for intracompany transferees (L-1A and B), 83.7 percent were approved, with the approved petitions with an RFE at 53.5 percent. In FY 2018, the approval rate had dropped to 77.8 percent, with approved petitions with an RFE at 52.9 percent. So far in FY 2019, approvals are at 72.0 percent, with approved petitions with an RFE at 50.7 percent.
Some creative workarounds have been reported. For example, because Canadian blanket L visas cannot be renewed at the border with the United States now, some Canadians sent to various consulates in Europe have obtained L visas there. And in RELX, Inc. v. Baran, a district court recently granted summary judgment in favor of LexisNexis and a data analyst who sued after an H-1B petition on her behalf was denied.
A table summarizing key data points follows:
|Fiscal Year||H-1B Initial Approvals||H-1B Completions with RFE||H-1B Approvals After RFE||L-1A/B Initial Approvals||L-1A/B Completions with RFE||L-1A/B Approvals After RFE|