Adjudication Trends: Before and After Trump

USCIS RFE data shows a return to sanity in adjudications for some nonimmigrant case types post-Trump presidency, while others have seen little or no improvement

By Grant W. Godfrey, Immigration Attorney

The Trump administration articulated early on a broad policy of protecting the American labor force.  In the immigration context, this policy was implemented in a wide variety of ways.  In the area of skilled immigration (H-1B, L-1, O-1 and related skilled nonimmigrant visas) this was done primarily through inconsistency in the adjudication process.  Companies and foreign nationals saw a high percentage of these skilled worker filings being challenged by the U.S. Citizenship and Immigration Services (“USCIS”) through the issuance of expansive Requests for Evidence (“RFEs”) which often did not take account of the facts presented.  With this increase in RFEs came a corresponding increase in denials.  

The U.S. Citizenship and Immigration Services recently released data about its RFE and denial trends from October 2016 to June 2021 for the following relevant nonimmigrant classifications: H-1B, L-1A/L-1B (combined), O-1/O-2 (combined) and TN status.  Note that all results are related to USCIS filings, and do not incorporate any information from adjudications performed at the border by Customs and Border Protection (“U.S. Customs”) or at foreign embassies and consulates by the State Department (“DOS”).  

Since this data includes periods before, during, and after the Trump Presidency, now is a good time to take a look at approval rates, RFE rates, and denial rates for each of these periods.  For the purposes of this article, the data from Fiscal Year 2016 (October 2015 to September 2016) represents the period before President Trump.  The data from Fiscal Year 2019 (October 2018 to September 2019) represents the period during his Presidency where he was implementing policies that had not yet been struck down by the courts.  Finally, for the Biden presidency, the data only covers the first five months, but it provides us with clear adjudication trends.     

H-1B Petitions

There is little doubt that H-1B petitions suffered greatly under the Trump presidency.  Before and after his presidency, approximately 95% of H-1B petitions were approved.  However, during his presidency H-1B approvals dipped to approximately 85% under his watch.  The RFE rate also doubled under President Trump’s watch, with more than two times the number of cases being denied after an RFE than had been before his presidency.  During the first five months of President Biden, approval and RFE rates have improved to rates that were better than those seen at the end of President Obama’s term.

L-1A/L-1B Petitions

Unfortunately, the dataset does not distinguish between L-1A and L-1B petitions.  This is important because since it is typically easier to produce external evidence of managerial authority for an L-1A petition than it is to demonstrate someone’s specialized knowledge for an L-1B.  As a result, RFE and denial rates for L-1A petitions are always lower than for L-1B cases.  This data set combines the two sets of statistics, so we cannot extrapolate whether the change in statistics is due to one or both of the statuses being looked at differently by adjudicators.   During the Trump presidency, approval rates for L-1As and L-1Bs dropped by approximately 15%, RFE rates increased by over 20%, and the approval rates after an RFE dropped by approximately 5%.  During the first few months of the Biden presidency, there’s been only a modest improvement in approval and in the denial rate, making  up only about half of the ground that was lost under the Trump presidency.

O-1/O-2 Petitions

Unlike H-1Bs and L-1s, where there have been at least modest improvements in adjudications under President Biden, O-1 and O-2 filings are faring worse than they were under President Trump.  Approval rates have dropped slightly, RFE rates have increased at a noticeable rate, and overall denial rates have also increased under President Biden.  Anecdotally, the firm has noticed this shift, and we believe that when the next data set is released, the numbers will be even worse under President Biden.  This continued downward trend is concerning especially because neither President Biden nor the Department of Homeland Security have suggested any concerns with this visa category or signaled any change in their adjudication standards.   

TN Petitions

The data from this set only captures TN filings made with USCIS, so this is an incomplete view of all TN filings.  U.S. Customs, which handles many TN applications, does not maintain statistics on TN adjudications, and we have not incorporated any data from the DOS because they do not have an equivalent to an RFE rate that they maintain statistics on.  Even though the United States, Canada, and Mexico entered into a new free trade agreement under President Trump called the United States-Mexico-Canada Agreement (“USMCA”), the approval, denial, and RFE rates remained relatively stable.  The main difference is that under President Trump, an RFE was more likely to be denied than it was before or after his presidency.

Overall these numbers confirm the extremely negative impact that adjudication policies under Trump had on skilled immigration.  They also show that while President Biden has really focused on reforming adjudication procedures for H-1B petitions and to a lesser extent for L-1 petitions, other  categories remain approximately the same as they were under President Trump, or in the case of O-1/O-2 filings, have actually gotten worse.  Our hope is that as President Biden is able to implement his skilled immigration agenda that he does not forget that there is more to immigration than H-1B visas, and that he especially takes a look at the adjudication standards and practices for L and O visas.

RFE Rates Summary Chart