H-1B Employers Are Highly Unlikely to Appeal an H-1B Denial

By David North on November 1, 2019

Employers of H-1B workers, despite their complaints of rising denial rates, failed to appeal negative decisions 98 percent of the time in FY 2019, according to new data unearthed by the Center for Immigration Studies.

However, lobbyists for these employers (often multi-billion-dollars-a-year operations) and the media have come up with a quite different story, as this recent Forbes headline shows: "Latest Data Show H-1B Visas Being Denied at High Rates".

Well, yes, denial rates in 2019 and 2018 ran at 24 percent, up from a feeble 6 percent a few years ago, but given the much faster increase in the number of petitions filed, H-1B approvals have risen by more than 100,000 since 2015.

Meanwhile the industry, at the operating level, apparently accepts 49 DHS denials for every one instance of fighting a negative decision. What CIS found, in an examination of two different Department of Homeland Security data systems, was that in FY 2019, there were 69,543 initial H-1B denials recorded, but only 1,395 cases were appealed to the Administrative Appeals Office, another segment of DHS.

We then looked back at the 2018 data and found a similar pattern. Of the nine categories of the most utilized appeals in 2018, H-1B ones came in dead last as to the percentage of cases appealed.

This suggests two things:

  1. The employers felt, 98 percent of the time, that they did not have a good argument for appealing these cases; and
  2. Maybe the current population of H-1B workers, assumed to be close to one million, is more than adequate for industry's perceived needs.

An H-1B employer routinely profits at least $10,000 to $20,000 a year (roughly) from hiring an H-1B worker, rather than a citizen one. The visas are good for an initial three years and historically were rubber-stamped for another three years. So losing a case means losing $30,000 to $120,000 over the course of three to six years, and much more if there are more extensions of the H-1B status, which are frequent.

How much does it cost to appeal? The government fee is $675, and it would take a staff member or a lawyer a day or so to file a reasoned appeal. Let's assume a $400/hour lawyer charges 10 hours for the appeal, for a total of $4,675, a small fraction of $30,000 to $120,000. But 98 percent of the time employers are not willing to place such a bet, which totally undermines the industry's bleats about increased denials.

We at CIS decided to look at two DHS data sets to see how applicants for other immigration benefits reacted to negative decisions — what were the appeal rates for other visas? There are scores of categories, but we confined our investigation to those in which more than 100 appeals were decided by AAO in FY 2018. The table that follows shows, in descending order, how likely the nine most-appealed categories were to file with AAO. H-1B employers were the least likely in this grouping to appeal negative decisions. We express these rates below as the likelihood that there would be no appeal of the negative decision.

How Various Categories of Immigration
Benefit Seekers Respond to Denials (FY 2018)

Immigration Benefit Sought Initial Denials Appeals Percent of Tacit
Acceptance of Denials
(i.e., No Appeals)
Employer of a Specialty Worker, H-1B, (Form 129-H-1B) 61,347 972 98.40%
Adjustment of Status for an Alien (Form I-485) 9,452 171 98.20%
Alien Crime Victim, U Visa, (Form I-918) 4,489 121 97.30%
Employer of an International Executive, L-1 (A&B, Form I-129 L-1) 8,425 281 96.70%
Adjustment of Status for an Alien (Form I- 485) 4,129 171 95.90%
Special Immigrant, EB-4 (Form I-360)* 4,452 185 95.80%
Employer of Immigrant Worker (Form I-140) 12,566 540 95.70%
Alien Seeking TPS Status (Form I-821) 4,020 191 95.20%
Alien Seeking EB-5 Status (Form I-526) 1,551 106 93.20%
Application for Provisional Unlawful Presence Waiver (Form I- 601A) 2,315 467 79.80%

Sources: Column two: USCIS data; column three: calculated from "AAO Appeals Adjudications" for FY 2015 through FY2019"; column four is based on columns two and three.

* Special immigrant is a catch-all category, primarily consisting of teenagers said to be abused by their alien parents, plus two groups of religious workers.

To sum up, industry complains about rising H-1B denial rates, but large increases in applications, means that the number of approvals rises anyway; further, the industry, in 98.0 percent of the cases, did not opt to appeal negative H-1 B decisions in FY 2019.

The writer is grateful to Emma Cummins, a CIS intern, for her research assistance.