H-1B Visa Denial Rates Plunge After Trump Immigration Policies End

Not surprising. Will see if this reverses some of the preference of some high skilled immigrants for Canada that emerged during the Trump years:

H-1B denial rates have returned to pre-Trump levels after court decisions and a legal settlement ended the Trump administration’s restrictive policies, according to a new report. The changes started in the fourth quarter of FY 2020, while Donald Trump was still president, following a legal settlement with the business group ITServe Alliance and judges declaring the Trump administration’s policies unlawful. The lower denial rates continued through FY 2021 because the Biden administration abided by the legal settlement and did not introduce new restrictions.

“The denial rate for new H-1B petitions for initial employment in FY 2021 dropped to 4%, far lower than the denial rate of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020,” according to a new report from the National Foundation for American Policy (NFAP). “The Trump administration managed to carry out what judges determined to be unlawful policies for nearly four years, and the policies imposed significant costs on employers, visa holders and the U.S. economy, likely contributing to more work and talent moving to other countries.”

H-1B petitions for “initial” employment are for new employment, normally a case for companies that counts against the H-1B annual limit. The FY 2020 denial rate would have been higher if not for the legal settlement. Court rulings also stopped U.S. Citizenship and Immigration Services (USCIS) from continuing to impose new restrictions on who qualified for an H-1B specialty occupation.

The low H-1B denial rates in FY 2021 show the Trump administration’s anti-immigration approach was an aberration. “NFAP found the denial rates in FY 2021 and FY 2015 to be similar for employers, meaning the Trump years were an aberration due to imposing restrictive policies that courts found to be unlawful,” according to the report. “For several companies, particularly those that provide information technology (IT) services or other business services to U.S. companies, the denial rate for H-1B petitions for initial employment was far lower in FY 2021 than in FY 2020.”

H-1B temporary visas typically are the only practical way for a high-skilled foreign national, including an international student, to work long-term in the United States and have an opportunity to become an employment-based immigrant and a U.S. citizen. Many founders of billion-dollar companies and individuals who created the vaccines and delivered medical care that has saved the lives of Americans during the pandemic have used H-1B visas and employment-based green cards, notes NFAP.

Among the findings in the NFAP analysis:

–     “The denial rate for H-1B petitions for continuing employment was 2% in FY 2021, much lower than the 12% denial rate in FY 2018 and FY 2019 and the lowest level since data on H-1B denial rates became available. H-1B petitions for ‘continuing’ employment are usually extensions for existing employees at the same company or an H-1B visa holder changing to a new employer. The denial rate for H-1B petitions for continuing employment was 7% in FY 2020 but would have been higher if not for the impact in the fourth quarter of the court decisions and the legal settlement. In recent history, the 7% denial rate was still high compared to the 3% denial rate for H-1B petitions for continuing employment each year between FY 2011 and FY 2015.

–     “Much of the increase in denials for continuing employment during the Trump administration was due to an October 2017 memo that instructed adjudicators to no longer ‘give deference to the findings of a previously approved petition.’ Many extensions of H-1B status were reviewed under a new, more restrictive standard based on policies that judges later determined to be unlawful. Employers and attorneys have credited USCIS Director Ur Jaddou and the Biden administration for rescinding the October 2017 memo.

–     Amazon had the most approved H-1B petitions for initial employment in FY 2021 with 6,182. Amazon also had the most new H-1B petitions approved in FY 2020. Infosys had the second most H-1B petitions in FY 2021 approved for initial employment (5,256), followed by TCS (3,063), Wipro (2,121) Cognizant (1,481), Google (1,453), IBM (1,402), HCL America (1,299) and Microsoft (1,240).

–     “Processing issues likely inflated the number of approved H-1B petitions for the top employers. In the USCIS data, H-1B petitions are counted in the fiscal year they are approved, not in the cap year the H-1B visa holder begins to work. NFAP determined approximately 18,000 more petitions were approved for initial employment in FY 2021 compared to FY 2020, possibly due to USCIS processing issues in FY 2020 caused by the pandemic and the higher denial rate in 2020. Another caveat to the numbers is that, according to attorneys, in FY 2019 and FY 2020 during the Trump administration, USCIS held or delayed H-1B applications for many IT services companies, which would have inflated the number of approved H-1B petitions for those companies in FY 2021.

–     “The top employers of approved H-1B petitions in FY 2021 were also among the fastest-growing employers of U.S. workers, providing evidence that companies that employ H-1B visa holders also seek out and employ U.S. workers in significant numbers. The information on the significant hiring of U.S. workers by employers of H-1B professionals helps demonstrate the fallacies of the zero-sum argument about high-skilled foreign nationals ‘taking’ American jobs, particularly since economists have found hiring high-skilled personnel complements other high-skilled jobs as well as other types of employment at a company and in the economy.

–     “At U.S. universities, only approximately 25% of the full-time graduate students in electrical engineering and computer and information sciences are U.S. students.”

Source: H-1B Visa Denial Rates Plunge After Trump Immigration Policies End

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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