Law360 (September 30, 2019, 3:21 PM EDT) -- U.S. companies seeking to hire foreign nationals are facing a tougher road to securing visas for their foreign workers due to ever-increasing processing delays caused by requests for evidence, or RFEs, issued by U.S. Citizenship and Immigration Services and an increased rate of immigration petition denials.
U.S. companies hire foreign nationals for a number of reasons, including: Not enough U.S. workers are available; able and willing to do the job; the foreign national has specialized knowledge not available in the U.S.; the foreign national has extraordinary ability in a certain field; just to name a few.
Despite the legitimate business reasons companies sponsor foreign workers for U.S. work visas, under the current administration, USCIS’ recent adjudication practices have been placing increased burdens on U.S. employers seeking to optimize and grow their business by hiring foreign talent.
USCIS confirmed that for fiscal year 2018, the agency had 5,691,839 backlogged cases, a massive increase from the 3,290,668 backlogged cases in FY 2014, and representing an approximate 70% increase in backlogged petitions.[1] This increasing volume of backlogged cases is especially concerning given that the number of applications filed with USCIS has declined within the last few years.[2]
While the severe backlog can be attributed to several reasons including USCIS’ rescission of its long-standing deference policy, addition of mandatory in-person immigration interviews for all individuals adjusting status in the U.S. to permanent resident and addition of biometrics collection for spouses of nonimmigrant workers, one of the primary reasons for the long processing timelines and backlogged petition adjudications is the increasing number of RFEs issued by USCIS.
In FY 2015, 22% of new H-1B petitions (reserved for degreed professionals entering a specialty occupation) filed were issued an RFE and 80% of these petitions were ultimately approved.[3] In contrast, in FY 2018, 38% of initial H-1B petitions received an RFE and only 62.4% of those were approved, and, for FY 2019, thus far, approximately 40% of initial H-1B petitions have been issued an RFE and 62.7% have been approved.
Similarly, in FY 2015, 34% of new L-1 petitions (reserved for transferees from affiliated offices abroad entering a specialized knowledge or high-level managerial/executive role) filed were issued an RFE and 53.5% of those were approved. However, this number increased to 45.6% of new L-1 petitions receiving an RFE in FY 2018 and 53.7% of new L-1 petitions receiving an RFE in FY 2019 thus far, with approval ratings falling to 52.9% and 50.7%, respectively, for these years.
As such, with the increasing RFE issuance and petition denial rates, employers are facing lengthy adjudication timelines — not to mention significantly increased legal fees — when filing work visa applications on behalf of foreign nationals as they work to respond to RFEs and compile the voluminous documentation usually requested by the government, with a high potential to ultimately face a denial of the work visa.
Despite the uphill battle to secure work visas, for many U.S. companies, hiring foreign nationals is a necessity. For example, many health care systems struggle to find U.S. doctors to staff their hospitals located in areas considered medically underserved, and rely on hiring foreign national doctors to continue serving the community. Consequently, it is vital that U.S. companies seeking work visas be prepared to handle the very likely RFE that will come once an immigration petition is submitted to USCIS.
