Increased Denial Rates for H-1B and L-1s

by Joseph McKeown

H-1B denial rates in the US are reaching high levels compared to previous years, and  L-1 applicants are facing challenges with renewals at the US/Canada border, according to recent reports. Data released through the H-1B Employer Data Hub from US Citizenship & Immigration Services (USCIS) shows that denial rates for initial H-1B petitions between FY 2010 and FY 2015 never exceeded eight percent, and today the rate is three to four times higher at thirty-two percent, analysis from The National Foundation for American Policy (NFAP) shows. “One thing that is clear to me is that the data backs up what employers have been saying for the last two years: USCIS has raised the legal standard they use to decide whether enough evidence has been presented with petitions to approve them, without any legal authority to do so and without any notice to the public,” William Stock, a founding member of Klasko Immigration Law Partners, LLP, says.  

Additionally, Customs and Border Protection (CBP) officials have refused L-1 renewal applications in recent weeks at US/Canada ports of entry and pre-flight inspection locations, claiming that Canadian L-1 holders are not permitted to seek renewal or extension of their status at ports of entry (POE). CBP says they should instead obtain an approved extension of stay petition from USCIS, despite longstanding regulations and practice allowing Canadian nationals to apply for L-1 classification at Canadian ports of entry and no announced official changes of policy.

The high H-1B denial rates are forcing international students to study and work in other countries, businesses to focus growth in Canada and elsewhere, and US Green Card beneficiaries to leave the US, Stuart Anderson, executive director of the National Foundation for American Policy, writes in Forbes.  It remains to be seen if the L-1 challenges have a similar effect, but attorney Vic Goel, Managing Partner of Goel & Anderson, says that President Trump’s “Buy American and Hire American” executive order, has been used to “upend years of established practice[.]”