Main image of article Denial Rate for H-1B Visas for Continuing Employment Also Going Down

The denial rate for H-1B petitions for continuing employment has dipped in fiscal year 2021 (so far), suggesting that the Trump administration’s visa policies might not have a long-term impact.

For the first two quarters of FY 2021, the denial rate for continuing employment was 3 percent, down from 7 percent in FY 2020 (and 12 percent in FY 2018 and FY 2019). That’s according to a new analysis by the National Foundation for American Policy (NFAP), which drew its data from the USCIS H-1B Employer Data Hub. If the current trend continues, the denial rate may remain at pre-Trump levels: 

“A significant reason for the increase in denials for continuing employment is that in October 2017, the new USCIS director issued a memo on ‘Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status.’ The memo has likely been responsible for many of the denials in continuing employment cases, according to attorneys,” read the note accompanying NFAP’s data. “In April 2021, the Biden administration rescinded the October 2017 memo.”

The denial rate for initial H-1B petitions also declined in the first two quarters of fiscal year 2021; according to NFAP, that decline is largely due to federal judges ruling against Trump-era H-1B policies such as stricter definitions of specialty occupations. 

But will the denial rate for both initial and continuing H-1B petitions stay at these low levels for the long term? It might all depend on the Biden administration’s immigration actions. Biden’s first regulatory agenda, published this summer, hints at the administration’s intention to “modernize” H-1B requirements, although details remain vague; there are hints at updated guidelines that would revamp the “employer-employee relationship.”