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H - 1B DENIALS AND REQUESTS FOR EVIDENCE INCREASE UNDER THE TRUMP ADMINISTRATION

NATIONAL FOUNDATION FOR AMERICAN POLICY / POLICY BRIEF


H-1B denials and Requests for Evidence (RFEs) increased significantly in the 4th quarter of FY 2017, likely due to new Trump administration policies, according to data obtained from U.S. Citizenship and Immigration Services (USCIS) by the National Foundation for American Policy. The proportion of H-1B petitions denied for foreign-born professionals increased by 41% increase from the 3rd to the 4th quarter of FY 2017, rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter. The number of Requests for Evidence in the 4th quarter of FY 2017 almost equaled the total number issued by USCIS adjudicators for the first three quarters of FY 2017 combined (63,184 vs. 63,599). Failure to comply with an adjudicator’s Request for Evidence will result in the denial of an application. As a percentage of completed cases, the Request for Evidence rate was approximately 69% in the 4th quarter compared to 23% in the 3rd quarter of FY 2017. The data document how the Trump administration is limiting the admission of high-skilled foreign nationals, even though economists believe America greatly benefits from the entry of foreign-born scientists and engineers. The significant increase in denials and Requests for Evidence in the 4th quarter of 2017, which started July 1, 2017, came shortly after Donald Trump issued his restrictive “Buy American and Hire American” executive order on April 18, 2017. The data indicate the new administration needed time to get in place its new political appointees – considered by observers to be a who’s who of opponents of all forms of immigration – and to exert their will on USCIS career adjudicators, who were not considered favorably inclined in the first place toward businesses or highskilled foreign nationals. (The data in this report include only petitions at USCIS, not decisions at consular posts.) Due to the time and expense, employers and attorneys only apply for individuals they believe have a good chance of gaining approval, which means an increase in denial rates and Requests for Evidence reflect changes in government policies and practices. Interviews with attorneys and companies, as well as other data, indicate high rates of denials and Requests for Evidence in skilled visa categories have continued into FY 2018. USCIS has announced many other policy initiatives to make it more difficult for high-skilled foreign nationals to work in the United States. A recent USCIS memo on Notices to Appear could place high-skilled applicants whose applications are denied into deportation proceedings, while another new policy allows adjudicators to deny applications without even providing an opportunity for an employer to respond to a Request for Evidence. Analysis of the data shows: - Requests for Evidence for H-1B petitions more than doubled between the 3rd quarter and 4th quarter of FY 2017, rising from 28,711 to 63,184. The Requests for Evidence in the 4th quarter of FY 2017 were far higher than in the 1st quarter of FY 2017, the last months of the Obama administration (17% vs. 69%)


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The Trump administration has made it more difficult for high-skilled immigrants to gain entry to the U.S., according to the National Foundation for American Policy.

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