Analysis of denials and delays increase following H1B renewal rule change

What happened?

USCIS decided to cancel a rule governing how it assesses application for the renewal of an existing work visas. Whenever assessing a renewal application, USCIS would ‘defer’ to the initial approval: if the employer and job circumstances of the applicant had not changed, no significant review would be performed and the application would be granted. Now USCIS is saying that it is going to assess renewal application just like it assesses initial applications, from scratch.

Which U.S. work visas are impacted?

USCIS stated that ‘nearly all nonimmigrant classifications filed using Form I-129’ are impacted by the change. The classifications impacted are therefore:

• Initial application and renewal of: H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1;
• Renewal of, or change of status to: E-1, E-2, E-3, H-1B1 (Chile or Singapore) or TN (Canada or Mexico)

Immigration Planner has not been able to identify I-129 classifications not impacted, if any (the official statement says ‘nearly’ which seems to indicate that some classifications are not impacted).

What could be the impact on H1B processing times?

The amount of work that USCIS may have to perform to process H1B applications may increase by around 45%:

• Over the last 3 years, initial H1B applications represent only 38% of USCIS workload.
• If renewals were to represent half the work of initial applications when ‘deferring’ to the prior decision…
• …then, reviewing H1B renewals from scratch would increase USCIS workload  by 45%.

We do not know how USCIS’ personnel would be redeployed, so a 45% increase in workload does not necessarily translate into a 45% increase in processing times. Our point is that the rule change could create significantly more work for USCIS, if followed to the letter.

What could be the impact on H1B denial rates?

It is unclear. Surprisingly, the latest statistics reviewed by Immigration Planner seemed to indicate that there is no significant difference in denial rates between initial H1B applications and renewal applications.

Updated

Immigration Planner has revised its analysis on denial rates and has updated this post as a result.