National Foundation for American Policy: “H-1B Denials and Requests for Evidence Increase Under the Trump Administration”

by Joseph McKeown

H-1B denials and Requests for Evidence (RFEs) increased dramatically in the fourth quarter of fiscal year 2017 soon after President Trump took office, according to a report by the National Foundation for American Policy (NFAP) that used data from US Citizenship & Immigration Services (USCIS). The report by NFAP, a non-profit and non-partisan public policy research organization, includes data showing that H-1B petition denials increased by forty-one percent from the third quarter to the fourth quarter of the 2017 fiscal year. Additionally, RFEs issued in the first three quarters of the 2017 fiscal year came to 63,599 combined, almost equaling the total number of RFEs—63,184—issued in the fourth quarter of the 2017 fiscal year.

This increase in RFEs and denials for highly-skilled foreign nationals began shortly after President Trump signed the “Buy American and Hire American” executive order in April 2017, which aimed to create higher wage and employment rates for US workers. The NFAP report says that, over time, the Trump administration placed new political appointees in office to “exert their will on USCIS career adjudicators,” who were already less inclined toward businesses and highly-skilled foreign nationals. “Once we saw who was being appointed, a who’s who of stars in the anti-immigration world, no one was really surprised with what we’re seeing,” immigration attorney Greg Siskind says.

H-1Bs are not the only visa type affected. The denial rate for L-1B petitions, for employees with “specialized knowledge” transferring from a foreign-based entity to the US entity,  increased from 21.7 to 28.7 percent between the first and fourth quarters of the fiscal year. While the overall O-1 visa denial rate for artists of extraordinary ability remains relatively the same, there was an almost eighty percent increase in RFEs for O-1 foreign national applicants from India in the fourth quarter.

Indeed, Indian nationals have been especially affected in other visa categories as well. In the 2017 fiscal year fourth quarter, seventy-two percent of H-1B RFEs were issued to Indian applicants, in comparison to  sixty-one percent issued to applicants from other countries. There was also a forty-two percent increase in the proportion of H-1B petitions that were denied for Indian applicants from the third to fourth quarter of the 2017 fiscal year. The increase in denials and RFEs for highly-skilled applicants, the report argues, "indicates the Trump administration is interested in less immigration, not ‘merit-based’ immigration."

In response to the increased difficulty in obtaining H-1B and L-1B visas, along with other restrictive policies, Microsoft has said they may be forced to move some jobs overseas. Quartz spoke to half a dozen immigration lawyers who report that difficulties in applying for an H-1B is affecting employers with some employers dropping the H-1B petition after an overly burdensome RFE, and others reducing H-1B petitions filed because of the excessive time and cost involved.

Stuart Anderson, executive director of the NFAP, says that many Trump “America first” policies are counterproductive. He writes in Forbes: “At the same time the Trump administration has launched a trade war premised, in part, on worry that China will pass the U.S. in the technologies of the future, Trump officials are guaranteeing America will not have the talent to produce such technologies by blocking the entry of foreign-born scientists and engineers.”