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H-1B denial rates for new application drops to 4% in fiscal 2021 – Times of India


MUMBAI: The denial rate for new H-1B applications (petitions) for initial employment during fiscal 2021 (year ended September 30, 2021) has dipped to 4 per cent, this is significantly lower than the denial rate of 13 per cent in fiscal 2020. The denial rates in earlier years were much higher – at 24 per cent in fiscal 2018 and 21 per cent in fiscal 2019.
These are the recent findings of the National Foundation for American Policy (NFAP), a policy research organisation based in Arlington.
“The 4 per cent denial rate in fiscal 2021 for new H-1B petitions was similar to the rate before Donald Trump took office, meaning the Trump years were an aberration due to imposing restrictive policies that courts found to be unlawful,” said Stuart Anderson, executive director, NFAP.
H-1B petitions for ‘initial’ employment are primarily for new beneficiaries (potential employees who are being sponsored for the visa) and typically count against the H-1B cap annual quota of 85,000.
The increase in H-1B denials began in Donald Trump’s first year in office (2017) and the decline in the denial rate started in his last year (2020), affecting the fourth quarter of fiscal 2020 and later fiscal 2021. The impact of favourable court decisions against various restrictive policies imposed by the Trump administration became evident in the final months of his presidency, cites the study.
H-1B is the most popular visa for skilled employees, a significant number of the annual quota is allotted to Indian beneficiaries, especially those in the information technology sector.
During fiscal 2021, Amazon had the most approved H-1B petitions for initial employment with 6,182 approvals. This was followed by Infosys with 5,256 approvals. Next in line were TCS (3,063), Wipro (2,121) Cognizant (1,481), Google (1,453), IBM (1,402), HCL America (1,299) and Microsoft (1,240).
NFAP’s study points out that approximately 18,000 more petitions were approved for initial employment in fiscal 2021 compared to fiscal 2020, possibly due to the delays in processing during 2020 owing to the pandemic and also higher denial rates. According to NFAP, another caveat to the fiscal 2021 numbers is that, according to attorneys, in the earlier two years USCIS held or delayed H-1B applications for many information technology services companies, which would have inflated the number of approved H-1B petitions for those companies in the subsequent fiscal.
The denial rate for H-1B petitions for continuing employment (visa renewals) was 2 per cent in fiscal 2021, as opposed to 7 per cent in 2020. The study points out that this level of 7 per cent was achieved owing to favourable court decisions and legal settlements in the fourth quarter of this year. In fiscal 2018, for instance, the denial rate for continuing employment was as high as 12 per cent.
Much of the increase in denials for continuing employment during the Trump administration was due to an October 2017 policy memo that instructed USCIS officials to no longer give deference to the findings of a previously approved petition. Many extensions of H-1B status were reviewed under a new, more restrictive standard based on policies that judges later determined to be unlawful. Employers and attorneys have credited USCIS Director Ur Jaddou and the Biden administration for rescinding this October 2017 memo, states the study.
The top employers of approved H-1B petitions in fiscal 2021 were also among the fastest-growing employers of US workers, providing clear evidence that companies that employ H-1B visa holders also seek out and employ local American workers in significant numbers. The information on the significant hiring of US workers by employers of H-1B professionals helps demonstrate the fallacies of the zero-sum argument about high-skilled foreign nationals ‘taking’ American jobs, particularly since economists have found hiring high-skilled personnel complements other high-skilled jobs as well as other types of employment at a company and in the economy.
The study adds that: As of December 6, 2021, there were more than 1.5 million job vacancy postings in computer occupations in the US, and only about 56,000 new H-1B petitions annually are used by employers and H-1B employees in computer jobs, according to USCIS data. That means even if one incorrectly assumes there are a fixed number of jobs, there are close to 30 times more available jobs in computer occupations than H-1B visa holders who fill such positions annually. At US universities, only approximately 25 per cent of the full-time graduate students in electrical engineering and computer and information sciences are US students. These statistics indicate the need for hiring H-1B workers to fill the gap.

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