H-1b denials

President Donald Trump signs an executive order to try to bring jobs back to American workers and revamp the H-1B visa guest worker program April 18, 2017 in Kenosha, Wisconsin. H-1B visa applications — allotted to highly-skilled foreign workers, primarily from India — are facing alarmingly high rates of rejection. “Trump wants a broad attack on all immigration,” immigration attorney John Lawit told India-West in 2017. “He could re-define everything so that Ph.D.s don’t get H-1Bs,” said the attorney, who is known to the Indian American community for his work with asylum seekers who are facing deportation. (Scott Olson/Getty Images)

Almost one out of every four H-1B applications were denied in fiscal year 2019, quadrupling the rate from 2015, when denials were at their lowest, reveals new data released Oct. 28 by the National Foundation for American Policy.

“A key goal of the Trump administration – achieved through memos and policy changes – has been to make it more difficult for well-educated foreign nationals to work in America in science and engineering fields,” stated NFAP in the conclusion to its report. “It is expected additional measures will be forthcoming to increase the level of difficulty for employers and high-skilled foreign nationals,” stated the organization.

“In response to being unable to hire high-skilled foreign nationals, U.S. companies increase their hiring overseas, which causes more innovation by foreign nationals to take place in other countries, benefiting those nations,” noted NFAP, adding: “H-1B visa restrictions, such as those now being implemented by the administration, push jobs outside the United States and lead to less innovation in America.”

The report cited research by Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, which concluded: “Restrictive H-1B policies could not only be exporting more jobs and businesses to countries like Canada, but they also could be making the U.S.’s innovative capacity fall behind.”

NFAP defines itself as a non-partisan public policy research tank on trade, immigration, and education, among other issues.

Workers from India account for almost three-fourths of the H-1B population in the U.S.

NFAP extracted data from US Citizenship and Information Services H-1B Employer Data Hub, which revealed that in fiscal years 2018 and 2019, first-time H-1B applications were denied at a rate of 24 percent. Through President Barack Obama’s eight years in the White House, denial rates were in the single digits — the lowest was five percent in 2012 — and never went beyond 10 percent, according to the report.

Alarmingly, in the first two quarters of fiscal year 2019, 33 percent of new H-1B applications were denied.

Denial rates were particularly high for several U.S. companies, including Cognizant, which faced a 60 percent denial rate, dramatically up from 2015, when only 8 percent of its applications were rejected. CapGemini, Wipro, and Accenture all had rejection rates of greater than 50 percent; in previous years, denial rates were in single digits in 2015.

Curiously, Amazon, Microsoft, Intel, Facebook, Google and Apple had low rates of H-1B denials, remaining in single digits, as in previous years.

The denial rate for renewals has also spiked over the past two years: in fiscal years 2018 and 2019, 12 percent of H-1B renewal applications were denied, a huge spike from previous years, in which denial rates averaged about four percent, with most years coming in at three percent.

Deloitte faced the greatest spike in rejection of H-1B renewals: 32 percent of the global consulting giant’s applications were denied, up from 5 percent in 2015. PriceWaterhouseCoopers, Infosys, IBM, CapGemini, and HCL America also faced similar spikes in rejection rates.

“I have seen how employees who have mortgages, car payments, kids in school, and deeply established roots in this country are heartlessly shown the door,” said attorney Jonathan Wasden in the NFAP report.

Wasden, who has filed several lawsuits against USCIS on behalf of employers who use the H-1B program, said: “USCIS has systematically rewritten the rules on H-1B visas, without following the law, and destroyed any sense of predictability in the system.”

In the first quarter of fiscal year 2019, USCIS issued a “request for evidence” to 60 percent of applicants, three times higher than previous years. The agency cited its top 10 reasons for issuing an RFE, which included: the petitioner not establishing that the visa was in fact for a specialty occupation or that the beneficiary was qualified to perform the work.

USCIS noted it also issued RFEs when the employer-employee relationship had been inadequately determined; and when the availability of in-house and off-site work had not been sufficiently established.

“Providing proof of the exact projects the employee will work on for three years going forward accounts for many denials for these firms,” stated Wasden.

Shortly after President Trump took office, his administration redefined what it considered “specialty occupations” for the purpose of getting an H-1B visa, cutting out several categories, such as computer programmers without advanced degrees.

“Trump wants a broad attack on all immigration. He’s taken the area where there’s discretion,” Las Colinas, Texas-based immigration attorney John Lawit told India-West in 2017. “This is a full-court press attack. He could re-define everything so that Ph.D.s don’t get H-1Bs,” said the attorney, who is known to the Indian American community for his work with asylum seekers who are facing deportation.

USCIS issues 85,000 H-1B visas per year. Bills pending in the House and Senate seek to nearly double the number of H-1B visas issued each year.

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