Latest USCIS Data Show RFE and Denial Rates Remained High for Key Employer-Sponsored Nonimmigrant Categories in the First Quarter of FY 2020

The issue

U.S. Citizenship and Immigration Services (USCIS) data for the first quarter of FY 2020 show continued high rates of requests for evidence (RFEs) and denials in key employer-sponsored nonimmigrant categories, though there was some improvement in H-1B outcomes. The overall RFE and denial trends are consistent with the Trump Administration’s directive to tighten employment-based visa eligibility under the Buy American, Hire American Executive Order.

H-1B approvals saw modest increase as RFE rate dropped somewhat

In the first quarter of FY 2020, the H-1B approval rate was 83.4%, up 8% from the same period in FY 2019, and on par with the approval rate in the first quarter of FY 2018. Approval rates remain well below FY 2015’s overall H-1B approval rate of 95.7%.

The H-1B RFE rate was 47.2% in the first quarter of FY 2020, down nearly 13% from the same period in FY 2019, but comparable to the RFE rate in the first quarter of FY 2018. RFE rates remain nearly double those of FY 2015. The odds of approval after an RFE were 67.2%, up nearly 6% from the same quarter in FY 2018. The rate of approvals after RFE remain well below FY 2015’s rate of 83.2%.

USCIS L-1 approvals down, RFEs increased

The approval rate for L-1 petitions at USCIS Service Centers was 73.1%, down just over 1% from the same period in FY 2019, and more than 10% from FY 2015’s approval rate of 83.7%.  L-1 filings were RFE’d at a rate of 57.5%, up 5.5% from the same period in FY 2019, and up more than 20% from FY 2015’s overall RFE rate of 34.3%. The rate of approval after RFE was 54.9% in the first quarter of FY 2020, slightly up from Q1 of FY 2019, but generally on par with the post-RFE approval rate of recent years.

The USCIS statistics do not include outcomes from L-1 applications at U.S. consulates or ports of entry.

USCIS TN approvals down modestly, RFE rate steady

The approval rate for TN petitions at USCIS was 87.5% in the first quarter of FY 2020, down roughly 1% from the same period in FY 2019 and well under FY 2015’s overall USCIS TN approval rate of 95.1%. The rate of RFEs for TN petitions was 27.9% in the first quarter of this fiscal year, with no change from the same period in FY 2019. The rate of approval after RFE was 56.6%, down just over 3% from the same period in FY 2019, and nearly 20% lower than the post-RFE approval rate of FY 2015.

The USCIS statistics do not include outcomes from TN applications at ports of entry or U.S. consulates.

O-1 approvals dropped slightly, as RFEs increased

O-1 petitions were approved at a rate of 90.2% in the first quarter of this year, down 0.5% from the same period in FY 2019. The RFE rate rose to 29.5%, up just over 1.5% from the first quarter of FY 2019.  Post-RFE approvals rose slightly, to 67.5% from 67.1% in Q1 of FY 2019.  The rate of O-1 approvals is down by nearly 4% from its recent high of 94.1% in FY 2017.

What this means for employers

USCIS’s first-quarter statistics for FY 2020 show slight improvement in outcomes in the H-1B category, as the agency modified some of the strict positions it took in FY 2019, particularly in regard to entry-level H-1B wages. However, approval rates decreased and RFE rates increased or remained at their already high levels for other employer-sponsored nonimmigrant categories.   

In the coming months, USCIS is expected to issue several proposed regulations concerning the H-1B and L-1 categories, among others. Those proposals are expected to seek to tighter eligibility criteria and impose new obligations on employers.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.