H-1B Denial Rates Stay Lower in FY 2021 Following Trump’s Legal Setbacks

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Denial rates for H-1B petitions were much lower during the first two quarters of FY 2021 due to the Trump administration’s losses in federal court, (most of which took place during the Trump administration) than during the sam period in FY 2020, according to an analysis by the National Foundation for American Policy (NFAP).

Judicial decisions that found the Trump administration’s actions to be unlawful and a legal settlement forced Trump officials to change restrictive immigration policies and resulted in dramatic improvements in H-1B denial rates for companies beginning in the fourth quarter of FY 2020.

The denial rate for new H-1B petitions for initial employment was 7.1% through the first two quarters of FY 2021 (which is from October 1, 2020, to March 31, 2021), compared to a denial rate for initial employment of 28.6% through the first two quarters of FY 2020 (before policies changed).

H-1B petitions for “initial” employment are primarily for new employment, typically a case that would count against
the H-1B annual limit.

The NFAP analysis is based on data from the U.S. Citizenship and Immigration Services (USCIS) H-1B Employer Data Hub.

In the fourth quarter of FY 2020, the denial rate for new H-1B petitions for initial employment was 1.5%, much lower than the denial rate of 21% through the first three quarters of FY 2020, or the
15% denial rate in the fourth quarter of FY 2019. (See this January 2021 NFAP report on H-1B Denial Rates for FY
2020 and the Impact of Court Decisions.)
Table 1 Denial Rate for H-1B Petitions for Initial (New) Employment: FY 2021 vs. FY 2020

Fiscal Year Approvals Denials Denial Rate

FY 2021 (First Two Quarters) 39,501 3,040 7.1%
FY 2020 (First Two Quarters) 38,150 15,341 28.6%

Source: USCIS, National Foundation for American Policy. Data extracted and analyzed from USCIS H-1B Employer Data Hub.

The Trump administration’s 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 court rulings that led to low denial rates in the fourth quarter of FY 2020. In retrospect, the Trump administration managed to carry out what judges determined to be unlawful policies for nearly four years, illustrating the limitations of relying on the court system to prevent restrictive immigration policies.

refusal rates for H1-B visa down because Trump's a clown.

The Trump administration attempted to make its H-1B policies lawful through an interim final rule on H-1B visas issued in October 2020, but that rule was vacated for violating the Administrative Procedure Act. Company and
university personnel said the regulation would have made it nearly impossible to employ H-1B visa holders.

The Trump administration’s 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 court rulings that led to
low denial rates in the fourth quarter of FY 2020.

In retrospect, the Trump administration managed
to carry out what judges determined to be unlawful policies for nearly four years, illustrating the
limitations of relying on the court system to prevent restrictive immigration policies. The Trump administration attempted to make its H-1B policies lawful through an interim final rule
on H-1B visas issued in October 2020, but that rule was vacated for violating the Administrative
Procedure Act.

Company and university personnel said the regulation would have made it nearly
impossible to employ H-1B visa holders.

H-1B policy changes have been costly for employers. In 2015, USCIS began a policy that required
employers to file amended petitions whenever they received a new labor condition application
(LCA) from the Department of Labor.

USCIS used an Administrative Appeals Office (precedent decision on a petition filed by Simeio Solutions to bind adjudicators to the new policy.

An NFAP analysis estimates the USCIS policy has cost employers approximately $600 million a year, or more
than $3 billion, in legal and filing files since 2015. The denial rate for H-1B petitions for “continuing” employment (primarily for existing employees) was 3% in the first two quarters of FY 2021, compared to 7% in FY 2020 and as high as 12% in FY 2018 and FY 2019. USCIS denied only 3% of H-1B petitions for continuing employment in FY 2015 (and only 5% as recently as FY 2017). The denial rates discussed in the report are separate from the large number of H-1B registrations rejected each year because of the low numerical limit under U.S. immigration law.

In March 2021,
employers filed 308,613 H-1B registrations for cap selection for FY 2022, but only 85,000 H-1B
petitions could be chosen under the law, which means over 72% of H-1B registrations for high-
skilled foreign nationals were rejected even before an adjudicator evaluated the application. Absent significant changes in government policies, high denial rates are unusual since employers
would be unlikely to apply for H-1B petitions for individuals who do not qualify given the time and
expense.

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