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U.S. Immigration Visas: A Bureaucratic Wall is Being Built

United States Citizenship and Immigration Services (“USCIS”), the governmental organization that administers the country’s legal immigration system, recently released data regarding visa denials and requests for evidence (“RFEs”) for the fourth quarter. And if you are an employer who regularly seeks immigrant visas for newly hired positions, the news is not good.

In a new report released last month, the National Foundation for American Policy (a non-profit, non-partisan organization focused on policy research) found that immigrant visas of all types have become more difficult to obtain, with the largest increases being in H-1B denials and RFEs. Denials of foreign-born H-1B visa applications for foreign-born professionals increased 41% in the fourth quarter of 2017 — from a denial rate of 15.6% to 22.4%. And the number of H-1B RFEs increased almost three-fold from the third to fourth quarter of 2017, from approximately 22,000 RFEs in 3Q 2017 to approximately 63,000 in 4Q 2017. Denial rates for L-1A (intracompany executives and managers) and L-1B (intracompany “specialized knowledge” employees) petitions have also risen, increasing 9% and 7% respectively. And as the report notes, many of the increased denials and RFEs affect Indian-born applicants.

President Trump’s “Buy American and Hire American” executive order appear to be the impetus for these changes. But regardless of the reason behind the increased visa denials and RFEs, it is clear that it is becoming both less likely for an employer to obtain visas for foreign-born professionals and more costly, especially if an RFE is requested. RFEs require attorneys to essentially prepare a supplemental, and sometimes just as detailed, packet of information. In light of these trends, employers should consider fully all the potential costs associated with seeking immigrant visas prior to filing a petition.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.