Why Are H-1B Denials for Continuing Employment Being Overlooked?

The H-1B visa program, often hailed as a crucial tool to secure skilled workers, has seen a challenging landscape as of late. While the denial rates for new H-1B applications have gained significant attention, the rise in denials for continuing employment has often been overlooked. If you've been following the H-1B issue, you'll know that the U.S. Citizenship and Immigration Services (USCIS) has been denying an increasing number of new applications over the past few years. However, data also reveals that H-1B petition denials for continuing employment have also seen a rise.

Understanding the Increase in Denials for Continuing Employment

The National Foundation for American Policy (NFAP), a think tank that analyzes data from USCIS, has provided regular breakdowns of H-1B data. Its latest report shows that for all four quarters of fiscal year 2019, the denial rates for H-1B initial employment petitions went up. Moreover, the denial rates for H-1B continuing employment have also increased when compared to previous years. NFAP attributes these increases to a 2017 memo by the then-new director of USCIS.

The Impact of the 2017 USCIS Memo

The memo by the USCIS director is believed to have been responsible for many of the denials in continuing employment cases. According to NFAP, 'the memo has likely been responsible for many of the denials in continuing employment cases according to attorneys.' Specifically, the memo states, 'The previous policy instructed officers to give deference to the findings of a previously approved petition as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination. The updated policy guidance rescinds the previous policy.' This shift in policy has significantly affected the approach USCIS takes towards continuing employment petitions.

Implications of Increasing Denial Rates

In the eyes of critics of the H-1B visa program, these rising denial rates are seen as a positive development. They argue that these denials push back against the attempts of tech and consulting companies to bring in foreign talent at artificially suppressed wages. Moreover, a higher rate of denials for continued employment would disrupt companies' efforts to use the visa as a pipeline for talent.

The Stability of Denial Rates

However, recent data from Dice’s separate analysis of USCIS data shows that the rate of initial H-1B approvals has leveled off over the past year. This stability suggests that the denial rates for new H-1B applications may also stabilize in the future. It remains to be seen whether these high denial rates for continuing employment will continue in the long-term.

Conclusion

While the denial rates for new H-1B applications have garnered significant attention, the increasing rate of denials for continuing employment has often been overlooked. Understanding the reasons behind these denials and their implications is crucial for both employers and applicants in the H-1B visa program. As the policy continues to evolve, it is essential to monitor these trends to ensure fairness and efficiency in the process.