Work Visas: Steep rise in RFEs for L and H; USCIS will review

Data and informed testimony showing rising RFE rates for employment-based visas contradicts DHS Office of Inspector General (OIG) claims

As we have blogged previously, we are seeing a steep rise in RFEs for most categories of work visas.  At the February 15, 2012 hearing before the House Subcommittee on Immigration, the testimony of the former General Counsel of the Immigration and Naturalization Service, Bo Cooper, confirmed our view. Mr. Cooper stated that contrary to an earlier report by the DHS Office of Inspector General (OIG) claiming that “senior [USCIS] leaders are putting pressure on employees to approve more visa applications, even if the applications might be fraudulent or the applicant is ineligible”, the data show otherwise. In fact, stated Mr. Cooper: “Particularly with respect to the key nonimmigrant categories for foreign professionals, denial rates and RFE rates have risen very sharply in recent years.”

The “most startling example,” Mr.Cooper said, appears in the L-1 program, which is used by multinational corporations to transfer managers, executives, and specialists into the United States. Noting that such visas “are an essential component of a huge range of productive economic activity in this country,” he confirmed that L-1 visas are critical to attracting foreign investment that supports the creation of jobs for U.S. workers and are critical when U.S. companies acquire companies based oversees and need to have the acquired company’s specialists come to the United States to integrate their expertise and processes. L-1 visas are also critical to companies who need to bring specialists from their overseas affiliates into their research centers and operations in the United States, he noted. “Without predictable, reliable access to these visas, employers find themselves having to move jobs and projects to other countries.”

The data for employees with specialized knowledge in the L-1B program “shows a steep rise in denials and requests for evidence beginning in 2008,” he said, noting that the denial rate for L-1B petitions more than tripled in 2008 and is now at nearly quadruple the pre-2008 rate, at 27 percent in 2011. The RFE rate change is even starker, he said. From 2005 to 2011, the rate skyrocketed from 9 percent to 63 percent of L-1B cases.

He also noted that in the L-1A program for managers and executives being transferred within multinational corporations, the RFE rate rose from 10 percent in 2005 to 51 percent in 2011. Denial rates rose 75 percent over five years, from 8 percent in 2007 to 14 percent in 2011. In the H-1B program for professionals in specialty occupations, the denial rate increased from 11 percent in 2007 to 17 percent in 2011. Over a quarter of all H-1B filings generated an RFE in 2011.

Seen in the light of this data, Mr. Cooper said “there is no basis for the concern expressed in the OIG report that USCIS has an institutional bias in favor of approvals or against RFEs.” In fact, he said, the data show the opposite trend. Noting that USCIS said in its response to the OIG report that it is reviewing its RFE policy and aims to issue new RFE guidance this year, Mr. Cooper recommended that the new policy reflect “the needs of today’s business environment and the innovation economy,” and that it be monitored carefully once put into practice.

We blog frequently on issues relating to entrepreneurs and continue to maintain that the current economic climate in the U.S. cries out for a much more enlightened policy toward work visas in general, with particular emphasis on both non-immigrant visas and green cards for immigrant entrepreneurs.  Immigrant entrepreneurs create jobs!

Article categories: Work Permits

About the Author