The denial rate for H-1B visa initial employment petitions is increasing drastically. In 2010, it was at 8%. In 2015, it dropped to 6%. Since then, the rate has been rising at a fast pace. It took the biggest leap in 2018, changing from 13% (2017) to 24%.
The same tendency is present with the continuing employment visa petitions. The 3% denial rate in 2015 turned into a 12% rate in 2019.
As more and more immigrants are denied for unspecified reasons, the demand for specialized help from attorneys grows. Part of marketing your immigration practice is demonstrating expertise in your field and providing up-to-date information on certain changes to keep both clients and potential clients informed. When you are viewed as an expert, you can expect to build credibility and trust, and this may result in an increased amount of inquiries that come into your firm.
The main reason for the historically high denial rate is the change in standards for approving H-1B visa petitions. Below, we dive into the specifics and outline five ways H-1B visas will change in 2020.
New, Tougher Standards for Approving H-1B Visas
United States Citizenship and Immigration Services (USCIS) raised the legal standards without notifying the public, resulting in high denial rates and numerous lawsuits -- some having to do with denials while others contesting the suddenly reduced duration of approved visas.
In 2020, the trend is likely to continue. Employers should expect more denials as USCIS comes through with a new rule, which revises definitions of specialty occupations, thus making it harder for applicants to meet visa requirements.
If a multitude of lawsuits filed against USCIS -- contesting the unexpected H-1B visa demands -- don't succeed, the approval rate is likely to continue dropping in 2020.
To be prepared for the changes, it's important to know the major factors behind the denial rate increase in Quarter 1 (Q1) of 2020 and beyond.
1. More Slots for Advanced-Degree Employees
The new rule puts an emphasis on choosing workers with advanced degrees, leaving fewer chances to specialists with bachelor degrees. This change will result in the selection of 16% more employees with master's degrees. Accordingly, regular applicants lose 5,340 slots.
Since the new rules weren't fully polished in 2020, USCIS decided to suspend the new registration process for the fiscal year (FY) 2020 season. However, the new order of selection -- which gives advanced degree applicants an advantage -- was implemented. The overall cap stayed the same at 65,000 slots, but 6,800 slots will go to candidates from Singapore and Chile, according to the free trade agreement with these countries.
2. Different Registration Process
Another major change applies to the registration process. To comply with the new requirements, employers have to register potential employees with USCIS electronically during a certain registration period (14 days). When USCIS receives the list, it decides which of the registered candidates can apply for a visa.
The new registration process affects the duration of the selection. While the H-1B season used to run from early March to mid-April, this year it will run from early March until the end of July.
It will take USCIS more time to select potential applicants, thus forcing some employees to miss their October 1st start date.
3. New Rules for Spouses
Today, H-4 employment authorization documents (EAD) allow spouses of H-1B visa holders to work legally in the U.S. In November 2019, the Department of Homeland security declared its plans for reviewing H-4 EAD.
It is possible that in Spring 2020, H-4 dependent spouses will lose their right to work in the United States as the H-4 EAD program becomes obsolete.
4. Request for More Information
In February 2018, USCIS obliged employers to provide more information about employer-employee relationships.
The request for extra information came from a memo issued by the Department of Homeland Security in February 2018. It required companies, who send employees to third-party locations, to provide more details and documentation on place and time of applicants' deployment.
Employers have to present itineraries with dates and locations of services filed, list dates of each service and engagement, addresses of all third-party employers, and names and addresses of establishments, venues, and locations where the applicant performs services. The new requirements also require the employer to provide statements of work signed by third-party clients with a detailed list of duties.
These changes led to a lawsuit in January 2020 where IT companies tried to prove the new requirements held them from completing contracts and servicing clients. The judge denied the motion, basing the decision on the company's ability to hire local talent rather than waiting for H-1B visa approvals.
5. Public Charge Rule
Starting February 24, 2020, the full weight of USCIS’ “Inadmissibility on Public Charge Grounds” will take effect. It works under the assumption that immigrants must be self-sufficient in the sense that they will not depend on public resources to meet their needs. The rule applies to any immigrant seeking to adjust their status to that of lawful permanent residents. The rule does not apply to refugees, asylees and those who received a waiver from the Department of Homeland Security. If the immigrant is likely to become a “public charge,” they are inadmissible for adjustment of immigration status.
What to Expect in 2020
The new rules for H-1B visa approval include preferences toward advanced-degree holders, extra paperwork as well as a longer and more complicated registration process. If lawsuits against the new rules don't succeed, the denial rate is likely to continue rising.
Lawyers should prepare to field questions about these new rules and changes. With unparalleled expertise on H-1B visa applications and how acceptance will be different in 2020, immigration law firms can confidently answer and assuage any concerns or questions from potential clients.