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98% of H-1B visa rejections unchallenged

In 98.4% of the cases where the H-1B visa was denied, the employer chose not to file an appeal, said David North, a fellow at the Center for Immigration Studies (CIS), which is based in Washington, DC.

, ET Bureau|
Updated: Nov 19, 2019, 12.39 PM IST
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HIB-Visa-Agencies

Indian nationals get about two-thirds of the H-1B visas issued annually.

Pune: Most instances of H-1B visa denial do not attract appeals by employers, according to new research by a US-based anti-immigration think tank. This comes even as denial rates for the prized visa category have spiked to 24% in financial year 2019 from about 6% in 2015. In 98.4% of the cases where the H-1B visa was denied, the employer chose not to file an appeal, said David North, a fellow at the Center for Immigration Studies (CIS), which is based in Washington, DC.

In fiscal year 2019, 69,543 initial H-1B denials were recorded, but only 1,395 cases attracted appeals, according to data from the Department of Homeland Security. “My sense is that the system is loose enough, and the applications are (often) faulty, so that there is little effort to appeal. If the employers felt strongly enough, they would rally around and appeal many of the denials, as a form of protest, but they have not done so,” North told ET on email.

For L-1 visas, which are often used by tech firms for intra-company transfer, visa denials were not appealed in 96.7% of the cases. Immigration lawyers, who agree with the reasoning, also pointed out that there were other factors at play. “There are so many fine H-1B candidates emerging from Ivy League programmes that American companies can simply find and replace eligible candidates with recent grads – I’ve observed this with prominent American banks and financial institutions,” said Neil Weinrib, managing attorney of Neil A Weinrib & Associates.

Appeals can take up to two years to be resolved and since most companies need to fill an immediate vacancy, they cannot afford to wait that long. Weinrib instead prefers to file a motion to reconsider. “Our law firm has utilised the motion to reconsider in lieu of an appeal, since it is generally much faster to process – typically taking only 1-3 months. And, we have enjoyed great success with our motions,” he said. That could also be one reason why the rate of appeals is low, even if firms are challenging the visa denial.

Indian nationals get about two-thirds of the H-1B visas issued annually. In the recent years, American technology firms have emerged as the top recipients of H-1B visas, with Indian IT services firms seeing far higher denial rates. In FY 2019, approvals for L-1A and L-1B visas stood at 71.9%, compared to 77.8% in the previous year. Approval rates for H-1B visas were at 84.5% last financial year.

Mark Davies, Chairman, Davies & Associates, said the cost of filing an appeal was another factor why the appeals are low.

“Filing an appeal is an expensive and cumbersome process, another reason why many prefer to file a motion instead,” he said.

Be that as it may, badly filed applications were still a big reason for visas getting denied. “Denial rates will go higher as the criteria gets tougher and people continue to file applications,” Davies said.
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