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Requests for Evidence and Visa Denials Continue to Climb in 2019

U. S. Citizenship and Immigration Services (USCIS) has issued updated data confirming that requests for evidence (RFE) and denials continue to climb for most commonly used nonimmigrant visas. The rate of RFEs and denials for fiscal year (FY) 2019, especially when compared to statistics from FY 2015, illustrate the contrast in how cases are being adjudicated in light of President Trump’s Buy American, Hire American Executive Order.

Key Findings

The following is a summary of the key findings included in the data:

H-1B Petitions

Fiscal Year

H-1B Initial Denial Rate

H-1B RFE Rate

H-1B Approved After RFE Rate

2015

4.3 percent

22.3 percent

83.2 percent

2016

6.1 percent

20.8 percent

78.9 percent

2017

7.4 percent

21.4 percent

73.6 percent

2018

15.5 percent

38 percent

62.4 percent

2019 (Q1-3)*

16.1 percent

39.6 percent

62.7 percent

*Data is only available for the first three quarters of FY 2019.

  • The initial denial rate in the first three quarters of FY 2019 is nearly quadruple the initial denial rate in FY 2015.

  • The RFE rate has nearly doubled since FYs 2015, 2016, and 2017.

  • The approval rate, even after providing additional information via an RFE, has dropped more than 20 percent since FY 2015.

L-1 Petitions

Fiscal Year

L-1 Initial Denial Rate

L-1 RFE Rate

L-1B Approved After RFE Rate

2015

16.3 percent

34.3 percent

53.5 percent

2016

15 percent

32.1 percent

55.6 percent

2017

19.2 percent

36.2 percent

49.4 percent

2018

21.2 percent

45.6 percent

52.9 percent

2019 (Q1-3)*

28 percent

53.7 percent

50.7 percent

*Data is only available for the first three quarters of FY 2019.

  • The initial denial rate for L-1 visas increased by approximately 32 percent between FY 2018 and the first three quarters of FY 2019.

  • In FY 2019, more than 50 percent of L-1 visa petitions received an RFE, marking an increase in the rate of RFEs issued of nearly 56 percent since FY 2015.

  • For the third year in a row, the approval rate after an RFE is issued capped out at only approximately 50 percent.

Moving Forward

The data for O-1 and TN visas also show ongoing increases in RFEs and denials, though not at the steep rates seen in the H-1B and L-1 visa categories. Regardless, it seems that the trend is here to stay, at least for the immediate future. It is also important to recognize that a majority of cases are approved at the outset, so the odds of approval are still in an employer’s favor.  Employers can help minimize the risk of triggering an RFE or denial by providing comprehensive descriptions of the positions they seek to fill, together with documentation detailing the qualifications of the employees they seek to sponsor.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Melissa Manna, Ogletree Deakins Law Firm, Raleigh, Immigration Practice Group Writer
Immigration Practice Group Writer

Melissa Manna is an Immigration Practice Group Writer. Her primary focus is writing and editing legal articles relating to immigration for the firm’s online and print publications, websites, and newsletters.

Prior to joining Ogletree Deakins, Melissa spent 9 years as in-house counsel at TowerCo, one of the largest independent wireless tower companies in the U.S., representing the company in all aspects of commercial real estate. During that time she managed due diligence, advised and implemented risk management solutions, and closed transactions...

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