The recent statistics on PERM processing (the first step of the employment-based green card process) and USCIS adjudication rates in the employment-based visa categories confirm a trend that practitioners have observed and struggled with over the past few years: higher rates of denial, delays in adjudication and increased PERM audits and requests for evidence (“RFEs”). To some, the data suggests that the government is overreacting to the economic conditions in the country, and unnecessarily impeding employers’ ability to retain the best and brightest foreign workers. However, a closer look at the numbers also reveals that we as practitioners have been able to adapt to the heightened standards of proof and are still able to achieve positive results for our clients.
The 2012 Department of Labor statistics reveal an increase in denial rates of PERM petitions. While the Department denied less than 20% of PERM petitions between 2008 and 2010, that number has climbed to 25% for the fiscal 2011. The same trend is apparent with H-1B, L-1A, and L-1B petitions. The denial rate for H-1B petitions has grown from 11% in 2007 to 29% in 2009 and 21% in 2010. Although denials dropped to 17% in 2011, the rate of issuance of RFEs increased significantly: from 4% in 2004, to 26% in 2011, peaking at 35% in 2009. For L-1A petitions, the denial rate grew by 6% between 2007 and 2011, and today every second petition is subjected to an RFE. The numbers in the L-1B category are even more disheartening: denials increased by 20% between 2007 and 2011, while the RFE rate nearly quadrupled for the same period.
These are clear examples of how the government has raised the bar for employers in an attempt to safeguard American jobs. The drop in denial and RFE rates in the H-1B category between 2009 and 2011 indicates that practitioners are responding and adjusting to the new standards of proof. The fact that the rates of denial under PERM and H-1B are only higher by 5% and 6%, respectively, suggests that despite the heightened standard of proof, the government has not gone on an exclusionary war against business immigration. The bulk of these applications and petitions are still approved, despite audits and requests for evidence. In a way, this development does not mean that the system is necessarily flawed but, to the contrary, that it has been able to adapt to the economic conditions in the country without completely barring an employer’s ability to retain qualified foreign workers that make significant contributions to the U.S. Even though the economy has not recovered completely, the relatively small difference in denial rates for PERM applications and H-1B petitions suggests that practitioners are adapting and responding accordingly.