USCIS Does Right Thing on Some Applications, but Does Not Announce It

By David North on June 4, 2012

One of the ironies about the regulation of immigration is that when the government does the right thing it is usually silent about it; you only hear about it because of the screams of the immigration bar.

Alan Lee, a prominent immigration attorney, writing in the June 1 issue of Immigration Daily, bemoans what he regards as the rising rates of denials and other negative rulings in connection with nonimmigrant worker programs, trends I have not seen mentioned in any government press releases. Here are some of the figures, all based on USCIS statistics, that upset him:

USCIS Decisions in Nonimmigrant Worker Programs, FYs 2007-2011

Category 2007 2008 2009 2010 2011
H-1B Denials 11 % 16 % 29 % 21 % 17 %
H-1B Requests for Evidence (RFEs) 18 % 20 % 35 % 28 % 26 %
L-1A Denials 8 % 13 % 15 % 13 % 14 %
L-1A RFEs 24 % 27 % 32 % 37 % 51 %
L-1B Denials 7 % 22 % 26 % 22 % 27 %
L-1B RFEs 17 % 49 % 35 % 44 % 63 %


Lee drew his statistics from a report of the National Foundation for American Policy, a more-migration organization, which in turn used, and defined, USCIS statistics.

H-1B applications are for high-tech or other professional workers. The two L categories relate to the transfer of employees within multi-national firms from another country to the United States. A request for evidence is a structured letter from a USCIS staff member seeking additional information about a questionable application.

Employers and their lawyers do not like RFEs; they prefer a straight approval, with no questions asked. But forcing employers to answer questions about these applications may have two positive side effects; they may think twice before filing such applications in the future, and/or abandon some current applications.

The statistics suggest that one or possibly two trends must be at work here: either the staff is doing a better job sniffing out bad applications or the quality of the applications has dropped, or both.

Most of these denial or RFE percentages are striking, as Lee does not indicate, because USCIS is hard-wired to say "yes" to employer and alien applications, usually at rates in the 90-99 percent range. Given the agency leadership's desire to facilitate alien applications in general, the trend in staff decisions depicted above is remarkable.

Lee then goes on to make this eye-popping statement:

With average filing fees of $825 for L-1 and $2,325 for H-1B petitions, employers should expect more considered and favorable adjudications from USCIS.

Yes, and using the same logic, if your college-bound child pays a higher fee for his or her Scholastic Aptitude Test (SAT) than another child — even the one with miserable grades — he should get a higher score and be admitted to his preferred Ivy League college!

Fortunately, the government does not work that way. H-1B fees are set at their current rates because a wise Congress decided that there was enough fraud and damage to U.S. workers in the program to warrant increased payments by employers.

Lee also objected to a similar, if not as dramatic, trend in USCIS rejections of employers' applications for green cards for some of their long-time nonimmigrant workers.