U.S. Citizenship and Immigration Services data for the first three quarters of fiscal year (FY) 2019 continue to show higher rates of requests for evidence (RFE) and denials in several key employer-sponsored nonimmigrant categories. This trend remains consistent with the Trump Administration’s directive to tighten employment-based visa eligibility under the Buy American, Hire American Executive Order.
H-1B RFEs and outcomes
H-1B approval rates remain well below where they stood five years ago when cases had a 95.7% chance of approval. In the first three quarters of FY 2019, the overall H-1B approval rate fell to 83%, which is slightly down from the same period last year and almost 10% down from the same period in FY 2017.
As these approval rates trend downward, RFE rates continue to rise. So far this year, the H-1B RFE rate is up two-fold to 40.7% in comparison to the same period in FY 2017, and up about 1% from the same period last year. Though the approval rate for H-1B petitions that received RFEs increased by 1% from the first three quarters of FY 2018, this rate nevertheless remains down by 10% from the same period in FY 2017 and more than 20% down from FY 2015.
L-1 Service Center RFEs and outcomes
Similarly, approval rates for L-1 petitions adjudicated by USCIS are at their lowest levels in several years, down from a high of 85% in FY 2016. In the first three quarters of FY 2019, USCIS approved L-1 petitions at a rate of 72.1%, down from 78.3% in the same period in FY 2018 and 82% in the same period in FY 2017.
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RFE rates, meanwhile, have continued to rise. The L-1 RFE rate in the first three quarters of this fiscal year was 53.6%, up by 9% from the same period last year and almost 19% from FY 2017. For cases that received RFEs, L-1 approval rates went down. The approval rate after an RFE fell to 50.8% in the first three quarters of FY 2019, from 52.6% in the same period last year. The data released by USCIS do not include adjudication statistics for L-1 applications at U.S. consulates or ports of entry.
TN and O-1/O-2 trends at USCIS
Approval and RFE rates are trending in the same direction in the TN and O-1/O-2 categories. While the overall approval rate for TN petitions filed at a USCIS Service Center increased slightly to 89.4% in the first three quarters of FY 2019, up from 88.4% in the same period in FY 2018, they are down from 92% in the same period in FY 2017 and 95.1% in FY 2015.
Similarly, though the TN RFE rate fell to 24.9% in the first three quarters of this fiscal year, down from 28.6% in the same period last year, RFE rates have generally trended upward, from 17.3% in FY 2015 and 22% in the first three quarters of FY 2017. Approval rates for cases that received RFEs have decreased to 59.1% thus far in FY 2019, from 61% in the same period in FY 2018 and 66.5% in FY 2017. The data released by USCIS do not include adjudication statistics for TN applications at U.S. ports of entry or consulates.
During the first three quarters of FY 2019, the approval rate for O-1 and O-2 petitions fell to 90.8%, from 92.7% in the same period in FY 2018. The RFE rate was 26.9%, up just over 4% from the same period last year. The approval rate after an RFE declined to 66.8% thus far in FY 2019, from 69.1% in the same period in FY 2018 and 73.9% in FY 2017.
What the latest data mean for employers
The latest USCIS data confirm that employers continue to face increasing hurdles when petitioning for nonimmigrant employees in the current environment. Fragomen closely follows adjudication trends at USCIS and will issue further client alerts as new data become available.
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