H-1B Visa Denial Rate Dipping Back to Pre-Trump Levels

The denial rate for H-1B visas dipped throughout the first two quarters of fiscal year 2021, raising the question of whether the Trump administration’s attempts to restrict the visa will have much long-term impact. 

According to an analysis by the National Foundation for American Policy (NFAP), the denial rate for H-1B petitions for initial employment hit 7.1 percent during that period, compared to a 28.6 percent denial rate during the first two quarters of fiscal year 2020. NFAP suggests that the decline in the denial rate is largely attributable to federal judges’ rulings against Trump-era H-1B policies. 

For example, “[U.S. Citizenship and Immigration Services] was compelled to issue a new policy memo and withdraw a February 2018 memo on ‘Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites’ after losing a court case and then agreeing to a settlement with the business group ITServe Alliance,” NFAP states in its latest report. “In addition, USCIS rescinded the ‘Neufeld’ memo, a January 2010 memo interpreted more aggressively during the Trump administration to deny H-1B petitions when companies engaged in work at customer sites by H-1B visa holders.” 

Those are just two examples of judges ruling against the Trump administration throughout 2020. “For example, a March 5, 2020, opinion in federal court was decided against USCIS’s interpretation of who qualifies for a specialty occupation after the agency denied an H-1B petition for a Quality Engineer position for InspectionXpert Corporation,” the report continued. “A December 16, 2020, decision by a panel of judges in the U.S. Court of Appeals for the Ninth Circuit concluded that USCIS’s restrictive interpretation of its regulation was arbitrary and capricious when the agency denied an H-1B petition for a computer programmer by claiming the occupation did not meet the definition of a specialty occupation.”

The net result: As you can see from the following chart, the initial H-1B denial rate could be reverting to a pre-Trump mean, at least if the declines between FY 2020 and FY 2021 continue. (Note: FY 2021 on this chart only covers the first two quarters of the fiscal year.)

In the longer-term, the H-1B denial rate may hinge on what the Biden administration decides to do. Biden’s first regulatory agenda, published this summer, hints at the administration’s intention to “modernize” H-1B requirements, although details remain vague

6 Responses to “H-1B Visa Denial Rate Dipping Back to Pre-Trump Levels”

  1. H1B was a scam from its very inception when Carly Fiorina contrived it to circumvent paying US workers a fair compensation in her disastrous tenure as CEO of Hewlett Packard. There continues to be a large surplus of technically trained US workers available in the US work force. Companies attempting to hire workers under H1B must be required to sign an affidavit that they could not find ANY US workers to fill the position.

    • Agreed. Why just H1, its also these other the L1’s (the so called managerial visas) etc. Its just disgusting to see American jobs going out to non Americans. US jobs need to be legally for legal, authorized Americans only first. These IT cos have done enough fattening of their bottom-lines milking US cos. Time to return American jobs to legal, authorized Americans only.

    • Strongly agree, Rich. I was working under Fiorina as a tech worker specializing in BI / DW at the time, an hourly contractor. Every citizen contractor was replaced with an h-1b paid significantly below market, as part of her big push. The one replacing me was one of the most inept and lazy workers I have come across in my entire life. She could hardly accomplish anything, arrived somewhat late and left rather early every day. The only reason they chose her over me was to pay her half as much. The entire project went from being successful and on time to an unmitigated failure a year after the citizens left. Go figure. People like Fiorina never genuinely save companies money. I have another case where FOUR h-1b’s replaced me when I chose to leave a client, each paid half as much. The four together accomplished less than I did alone. How did that save anything? The h-1b program is a complete failure in its current state. I have a couple recommendations for improvement, though:

      1. Completely eliminate layers. All h-1b’s must be required to work directly for a company. That can either be a consulting firm directly engaged with a client or a regular Fortune 500 or similar company.
      2. Switch from a random lottery to a wage-based system, prioritizing higher incomes. The only parties benefitting from the current model are the companies, consulting firms, and lawyers.
      3. Eliminate consulting firms entirely from the visa process for three to five years to allow for some of the problems to improve.
      4. Give non-consulting direct client salaried / permanent roles much higher priority over consulting firms.
      5. Provide 25% of the visas to top-tier recent graduates, limiting to only those with master’s degrees at US universities. Require a minimum salary of $100,000. The best already receive that at the better west coast companies. Provide the remaining 75% to labor compensated a minimum of $180,000. Once again, the best already receive that. The h-1b program was never designed or intended for average or mediocre talent. The program was intended for the top 2 to 3%.

    • jake leone

      I agree. The program’s massive, yet obscure, loopholes have allowed immigration lawyers to productize the H-1b visa. The massive uncertainty in the Brain Dead lottery distribution, has encouraged 4-5 times more business in the form of massive redundant applications from Offshore Outsourcing companies as they gamble for a lucrative H-1b visa for their trainees. And the resulting low odds have forced repeat business for more legitimate and vetted candidates at tech companies.

      Like the loopholes in the Green Card Perm process (put in place by an immigration attorney, Elaine Chao), the H-1b visa system was created to funnel a massive amounts of cash to immigration attorneys. At the expense of the entire U.S. economy, their corporate clients, and their individual clients.

  2. Jake_Leone

    During the Trump administrations, denial rates for Offshore Outsourcing companies ran 30-50%.

    During the Trump administration, denial for Big Tech companies was extremely low (< 10%, in most cases only 1-2%).

    We have to ask ourselves, what innovation does an Offshore Outsourcing company bring to the American economy? An Offshore Outsourcing company does ZERO innovation. Such companies bring in fresher trainees under the H-1b program. Those trainees are trained by Americans who are actually better qualified and have decades of experience. The Americans are let go, after training their replacement. And then the entire department is shipped to India.

    No, what Trump was doing was actually making more H-1b visas available to tech companies that actually innovate.

    Trump's change to a salary based allocation of H-1b visas would have made it far more likely that Big Tech companies would be able to obtain an H-1b visa for their applicants. The current odds of a Big Tech company getting an H-1b visa for an OPT candidate or other potential foreign hire, stands at only a 1-in-4 chance. And that is because of the FACT that Offshore Outsourcing companies stuff in a huge number of redundant H-1b applications, and thereby force a lottery.

    This has gone on for decades, and for decades Silicon Valley has been whining about a mythical need for unlimited numbers of H-1b visas. And there is no logic in that whining, it is pure illogical whining brought about by a completely idiotic and counter-fiduciary take on H-1b policy. Changing to a salary based allocation would actually make an unlimited number of H-1b visas available to Big Tech companies. Because currently, tech companies barely use 45% of the H-1b visas, most, more than half, are going to Offshore Outsourcing companies.

    If we simply enacted the one change to a salary based allocation of H-1b visas, THERE WOULD NEVER BE A SHORTAGE OF H-1B VISAS. And the reason is because the Offshore Outsourcing companies, which do ZERO innovations, would simply drop out of the program. Because Offshore Outsourcing companies pay the lowest possible salary to their H-1b workers. And you can see that in data presented in previous columns by this very author.

    But Joe Biden immediately rescinded the Trump change to a salary based allocation.

    And the reason is because immigration attorneys have a huge influence in policy making and where the campaign contributions from tech companies wind up. And the Democrats know this, and are afraid to confront the awful truth. If we change to a salary based allocation of H-1b visas, immigration lawyers would lose 75% of their H-1b business. They wouldn't get the repeat business from the 75% of applicants that don't receive an H-1b visa, for many years, because of the IDIOTIC, BRAIN-DEAD lottery. Immigration lawyers are supposed to work in the best interests of their client, it is called a fiduciary responsibility. But if you ask ANY immigration lawyer about the change to a salary based allocation of H-1b visas, they will say it's a terrible idea, I know this because I have debated several on the net about this.

    But that one change, to a salary based allocation, would mean that an OPT student would have a 100% chance of converting to an H-1b visa, on the first attempt. How on Earth can that be a bad idea for the clients of immigration lawyers? It's a wonderful idea, it's the best change for all the H-1b immigration CLIENTS we could possibly make. BUT, it would kill off the repeat H-1b business of immigration lawyers, therefore, to immigration laywers, it's a terrible idea.

    And those same lawyers have a huge impact on board rooms. They work in a counter-fiduciary manner in the board room, and they destroy the chances of their company obtaining H-1b visas for their applicants. And that my friends, is criminal, because they are supposed to work in their client's best interest, not in their legal firm's best interest. But on this issue, they work in the best interests of their company not the client, and so are violating, criminally, their fiduciary responsibility to their clients. It is a form of fraud, that often results in jail time.

    With the Brain Dead lottery, the Offshore Outsourcing companies stuff in redundant H-1b applications, so the Offshore Outsourcing companies wind up filling all their H-1b positions with mediocre candidates.

    Unlimited H-1b visas would simply mean that Offshore Outsourcing companies would be able to bring an unlimited numbers of low paid trainees to the U.S. economy. Get trained in accounting, HR, DB admin, or support. And then all those jobs would be immediately shipped to India.