Ending Unlawful Trump H-1B Visa Policies Caused Denials To Plummet
The Trump administration lost in federal court and, after four years, companies and foreign-born scientists and engineers finally won. That is the surprising end to the Trump administration’s efforts to increase denials for H-1B petitions. While policies remain that could bedevil companies, the latest available data show H-1B denial rates plummeted near the end of FY 2020 after the Trump administration was forced to abandon policies that caused the denials to skyrocket.
H-1B visas have become vital, as noted here, because they generally represent the only practical way for high-skilled foreign nationals, including international students, to work long-term in the United States and be given the opportunity to become employment-based immigrants and U.S. citizens. Immigrants and visa holders have driven much of America’s technology engine over the past 30 years. The visas play a significant role in America’s ability to innovate at a time when elected officials want companies to develop and produce more products and services in the United States, according to analysts.
None of this mattered to Trump administration officials, who preferred to prevent foreign-born individuals—no matter their skill level—from coming to America. Eventually, judges said the Trump administration had to stop its most damaging H-1B policies.
“Losses in federal court cases that declared administration actions to be unlawful forced Trump officials to change restrictive immigration policies and resulted in dramatic improvements in H-1B denial rates for companies,” according to a new analysis by the National Foundation for American Policy (NFAP). The numbers tell the story.
“The denial rate for new H-1B petitions for initial employment was 1.5% in the fourth quarter of FY 2020, much lower than the denial rate of 21% through the first three quarters of FY 2020,” according to the analysis. “The Trump administration managed to carry out what judges determined to be unlawful policies for nearly four years. Those policies resulted in high denial rates for H-1B petitions for initial employment of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020, compared to 6% in FY 2015. The FY 2020 denial rate would have been much higher without the recent court rulings.”
H-1B petitions for “initial” employment are primarily for new employment, typically a case that would count against the H-1B annual limit, notes the analysis. The denial rate for H-1B petitions for initial employment was 1.5% in the fourth quarter of FY 2020, much lower than the 15% denial rate in the fourth quarter of FY 2019. Employers do not like to waste money, which means, given the expense of attorneys and government fees, one would expect denial rates to be low because companies only want to submit applications for people likely to qualify.
However, if the government changes policies in dramatic or unexpected ways, as happened under the Trump administration, high denial rates for H-1B petitions could occur. Between FY 2010 and FY 2015, the denial rates for H-1B petitions for initial employment were between 5% to 8%, much lower than during the Trump administration.
Individual company data show the significant impact of the Trump administration being required to change its policies. “Ten of the top 25 employers of new H-1B visa holders had denial rates that ranged from 23% to 58% during first three quarters of FY 2020, but their denial rates for H-1B petitions for initial employment dropped to between 1% to 4% in the fourth quarter of FY 2020,” according to the NFAP analysis, which is based on data from the U.S. Citizenship and Immigration Services (USCIS) H-1B Employer Data Hub.
Interviews with attorneys confirmed that H-1B cases for their clients decided in the fourth quarter of FY 2020 had low denial rates. Dagmar Butte of Parker Butte and Lane said she observed both a much lower rate of denials and fewer Requests for Evidence (RFEs).
Note that the fourth quarter of FY 2020 began on July 1, 2020. It was on June 17, 2020, that USCIS was compelled to issue a new policy memo and withdraw a February 2018 memo that affected third-party placements. That happened after USCIS lost a court case and agreed to a settlement with the business group ITServe Alliance. USCIS also rescinded the “Neufeld” memo. Although the Neufeld memo was issued in January 2010, Trump officials used it much more than the Obama administration to deny H-1B petitions in situations where an H-1B visa holder would work at a customer’s location.
“The memos and their interpretation were blamed for much higher denial rates for H-1B petitions, particularly for information technology (IT) services companies. Data on H-1B denials in the fourth quarter of FY 2020 revealed the impact of the rescission of the two memos,” according to the NFAP analysis. “Another factor in the decline in the denial rate: In 2020, judges also more frequently ruled against restrictive interpretations of whether a position met the definition of an H-1B specialty occupation.”
Vic Goel, managing partner of Goel & Anderson, said the lower denial rates could be seen in the fourth quarter of FY 2020 and have continued into the first quarter of FY 2021. “Following the decision and settlement in the ITServe Alliance case that caused the rescission of the 2010 and 2018 memos, H-1B approval rates improved substantially,” he said.
Companies hope the Biden administration’s policies on H-1B visas will resemble those of the Obama administration rather than the policies under Donald Trump that resulted in such a high number of denials of H-1B petitions.
Published: 28 January 2021