The Battle of the H-1B Concludes? Biden Administration Updates USCIS Policy Manual

According to new USCIS data, in comparison to fiscal years 2018 and 2019, FY2020 data show a significant decrease in the percentage of H-1B petitions that received an RFE even before the end of the Trump administration. As shown in Figure 1, the number of H-1B petitions that received an RFE dropped from approximately 40% in FY2019 to 29% in FY2020 (which ended October 1, 2020).

As shown in Figure 2, even if an H-1B petition received an RFE, the rate at which petitions were subsequently approved has steadily increased since FY2018, from 62% in FY2018 to 73% in FY2020. This increase in the RFE approval rate indicates that the challenges H-1B applicants faced to get their petitions approved during the Trump presidency started to improve even before the recent guidance change.

As shown in Figure 3, the number of H-1B petitions that have received an RFE in the first quarter of FY2021 has fallen to 25%, a stark drop from the quarterly highs of FY2018 and FY2019. Furthermore, even if the petition received an RFE, 85.4% were subsequently approved in the second quarter of FY2021, suggesting that the Biden administration’s early policy reversals are influencing how often a petition receives an RFE, and whether that petition is subsequently approved.

The decrease in the H-1B RFE rate and the increase in the RFE approval rate over the last year have been driven by two factors. The first is court rulings. In the last year, several court rulings struck down Trump-era policies, resulting in changes to several previous USCIS H-1B adjudication procedures. Innova Solutions v. Baran (2020) and ITServe Alliance v. L. Francis Cissna (2020) led to the dismantling of key policies used to restrict H-1B petitions such as the “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” and the October 2017 policy memorandum previously mentioned.

Secondly, the Biden administration has followed suit with the courts’ logic, rescinding several more restrictive policies since taking office. On January 25, 2021, the White House revoked the 2017 Buy American and Hire American executive order, which was the impetus for several restrictive immigration policies including the Third-Party Worksites memo. On June 23, 2021, the U.S. District Court for the Northern District of California granted the Department of Labor’s motion for voluntary remand of its January 2021 final rule on prevailing wage, which critics believed would have damaged the ability for foreign workers to petition through the H-1B system. USCIS also announced in recent months that it was going to re-open petitions that were denied under memos that were subsequently rescinded either by the courts or by the administration. All these administrative actions to ease petitioning have been confirmed by the data above, as completion rates with or without RFE have gone up significantly. Given these administrative actions, BPC expects the current trend to continue.

Finally, USCIS is returning to its 2013 policy regarding RFEs and NOIDs, which originally instructed adjudication officers “to issue RFEs in cases involving insufficient evidence before denying such cases unless the officer determined that there was no possibility that the benefit requestor could overcome a finding of ineligibility by submitting additional evidence.” During the Trump administration, in 2018, USCIS rescinded this “no possibility” policy and issued guidance stating that adjudication officers may deny benefit requests for lack of initial evidence without first sending an RFE or NOID. This return to the 2013 policy should ensure that petitioners are given an opportunity to correct innocent mistakes and unintentional omissions that often lead to an RFE being issued in the first place.

Nevertheless, one major policy that could dramatically shift the H-1B adjudication process is a Trump-era regulation that is scheduled to go into effect at the end of this year. The regulation would shift the system to “incentivize H-1B employers to offer higher wages, or to petition for positions requiring higher skills.” Several groups are bringing forth lawsuits to prevent this policy from going into effect, claiming that the change would hamper the ability of entry-level workers to enter the country. A similar provision has been included in the U.S. Citizenship Act of 2021, which would enable the secretaries of Homeland Security and Labor to create a hierarchy of prioritization of which visas would be given out based on proffered wages. It’s not known whether this outstanding Trump-era regulation could affect H-1B RFE rates in the future, but the current data nevertheless reveal a USCIS that is harkening back to the less restrictive Obama-era adjudication practices.

In conclusion, RFE rates for H-1Bs have dropped drastically since the end of the Trump administration, potentially signaling petitioners may have a more forgiving adjudication process with the Biden administration. Though the H-1B battle is not being waged as strongly as it was during the Trump administration, there is nevertheless much room for reform.