- In fiscal year 2018, there were fewer H-1B visa approvals and an increased number of requests for additional evidence on applications, according to data from U.S. Citizenship and Immigration Services released Friday. USCIS approved 84.5% of received H-1Bs in 2018, compared to almost 93% in 2017.
- Reserved for highly skilled workers, the majority of which work in the tech sector, the H-1B visa program has seen a number of tweaks and rule changes under the Trump administration and the "Buy American, Hire American" executive order. The impact of those changes was seen in FY 2018, where 38% of petitions processed had a request for evidence (RFE), a 77% increase from FY 2017.
- In FY 2018, petition approvals with a RFE were down to 62%, compared to 73% the year prior. USCIS received more than 418,000 H-1B petitions in FY 2018, up 4% from FY 2017.
USCIS did note "cases may have been received in a different time period from the one in which a request for evidence was ordered."
The attitude toward immigration has changed in the U.S., which has made the H-1B application process more challenging. Premium processing was suspended for the better part of a year, which slowed the application process. USCIS recently reinstated premium process for petitions filed on or before Dec. 21.
The agency finalized changes that will go into effect this filing season, reversing the order of the H-1B lottery selection to prioritize those educated in the U.S. Counting all H-1B petitions against the 65,000 cap before selecting the 20,000 advanced degree exemptions will increase the changes USCIS will reward visas to the "most-skilled and highest-paid beneficiaries," according to the agency.
Tweaks in how USCIS selects against the cap is a change in the policy. But other measures by the agency are having a chilling effect on the program and the effort to bring foreign tech talent to the U.S., according to experts. USCIS already received fewer petitions in FY 2019 than it did the year prior, though demand still far exceeded visa supply.
But additional RFEs are making it more difficult to receive an H-1B visa, with applicants having to prove and justify their work in detail. With the newly published data from USCIS, "it's like they're bragging about their RFEs," said Michael Nowlan, an attorney working exclusively in immigration law with Clark Hill, in an interview with CIO Dive.
Petitioners are seeing requests for evidence on "traditionally boring" cases, which is slowing the H-1B process, making it more expensive on employers and discouraging employers from hiring H-1B workers, according to Nowlan. USCIS has required additional information to approve the application through RFEs, even though there has been no change in the regulation or process.
H-1B filing "has been a predictable, repeatable process for decades," said Nowlan.
Other pending rules could further deter applications. USCIS proposed a rule to the Office of Management and Budget that would remove the H-4 visa, which allowed spouses of H-1B visa holders to work in the U.S.