High denial rates for H-1B petitions, which are used to employ foreign-born scientists and engineers, exploded the myth that Donald Trump supported legal immigration. Judges found the Trump administration enacted unlawful policies that burdened employers. A new report shows opinions issued by judges and the ITServe Alliance legal settlement have returned H-1B denial rates to pre-Trump levels, representing a failure by Trump officials to cement the former president’s anti-immigration legacy.
“Due to the Trump administration’s losses in federal court, denial rates for H-1B petitions were much lower during the first two quarters of FY 2021 (most of which took place during the Trump administration) than during the same period in FY 2020,” according to a new 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.”
In the first two quarters of FY 2021, the denial rate for new H-1B petitions for initial employment was 7.1%, compared to 28.6% through the first two quarters of FY 2020 (before the policies changed). The first two quarters of FY 2021 were from October 1, 2020, to March 31, 2021.
H-1B petitions for “initial” employment are primarily for new employment (usually cases that count against the 85,000-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.
The lower denial rates began in 2020. After the policies changed, 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—and lower than the 15% denial rate in the fourth quarter of FY 2019. (See this January 2021 NFAP report and here for the story of the Trump years.)
The fourth quarter of FY 2020 began on July 1, 2020, shortly after USCIS (on June 17, 2020), as part of the legal settlement with the ITServe Alliance, issued a new policy memo and withdrew a February 2018 memo on “contracts and itineraries.” USCIS also rescinded the (January 2010) “Neufeld” memo the Trump administration interpreted to deny more H-1B petitions when companies sent an H-1B visa holder to work at a customer’s site. In several court cases, judges also had ruled against the Trump administration’s restrictive interpretation of who qualified for an H-1B specialty occupation.
Shortly after the Trump administration began to implement its policies in 2017, H-1B petitions for initial employment rose to 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020, compared to 6% in FY 2015. Court rulings prevented the FY 2020 denial rate from being higher.
“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,” notes the NFAP analysis. “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.”
An attempt to make its H-1B policies lawful through an October 2020 interim final H-1B rule was blocked by a judge for violating the Administrative Procedure Act. Companies and university personnel argued the rule would have made it extremely difficult to employ H-1B professionals.
U.S. District Judge Jeffrey S. White issued an order on December 1, 2020, that vacated the interim final rule (stopping it from going into effect). The judge did not agree with the Trump administration’s argument that it could avoid the regular rulemaking process because of the unemployment rate.
Judge White cited National Foundation for American Policy research on the low unemployment rate in computer occupations and the large number of job openings in those occupations, stating, “The statistics presented regarding pandemic-related unemployment still indicate that unemployment is concentrated in service occupations and that a large number of job vacancies remain in the areas most affected by rules: computer operations which require high-skilled workers.”
During the first two quarters of FY 2021, the top employers of new H-1B visa holders had much lower denial rates for H-1B petitions for initial employment than during the same period in FY 2020. Nine companies that supply business and information technology services had denial rates at least 24 percentage points lower in the first two quarters of FY 2021 as compared to the same period in FY 2020. Amazon’s H-1B denial rate for initial employment was also 11 percentage points lower in the first two quarters of FY 2021 than in the same period in FY 2020, and Google’s was 13 percentage points lower, noted the NFAP analysis.
“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),” according to NFAP.
Today, the most significant problem facing companies seeking to employ foreign-born talent is the low annual limit on H-1B petitions. In March 2021, employers filed 308,613 H-1B registrations for FY 2022. However, due to immigration law, USCIS could select only 85,000 H-1B petitions. That translated to over 72% of H-1B registrations for high-skilled foreign nationals rejected before they reached an adjudicator.
“Denial rates for H-1B petitions appear to have returned to more traditional levels after court decisions and a legal settlement ended the Trump administration’s H-1B policies found to be unlawful,” according to the National Foundation for American Policy. “Still, those policies imposed significant costs on employers, visa holders and the economy, likely contributing to more work and talent moving to other countries.”
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August 30, 2021 at 11:03AM
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Low H-1B Visa Denial Rates Are Trump’s Failed Immigration Legacy - Forbes
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