The National Foundation for American Policy (NFAP), a non-profit public policy research organization, has released a report documenting the high rate of denials of H-1B and L-1 petitions by the United States Citizenship and Immigration Services (USCIS). For example, denial rates for L-1B petitions have increased from as low as 6% in 2005 to a high of 27% in 2011.
Given that there have been no changes in the law or regulations regarding eligibility or processing of these visa categories, this dramatic increase in denial rates has prompted questions about evident changes to the internal policies of USCIS; especially given that nationals of certain countries like India, for instance, seem to be facing the brunt of the denials.
The following excerpt’s are from the NFAP report:
"Companies believe that denials either at U.S. Citizenship and Immigration Services or at consulates, particularly involving Indian nationals, share the common attribute of new (unwritten) arbitrary standards that go beyond the statute and regulations. ...- Country specific data on new (initial) L-1B petitions indicate U.S. Citizenship and Immigration Services is more likely to deny a petition from an Indian-born professional than nationals of other countries. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent in Fiscal Year 2008 to 22.5 percent in FY 2009, a substantial increase that resulted in many employers being unable to transfer their employees into the United States to work on research projects or serve customers. In comparison, the denial rate for new L-1B petitions for Canadians rose from 2.0 percent in FY 2008 to only 2.9 percent in FY 2009. Illustrating the abrupt change, U.S. Citizenship and Immigration Services denied more L-1B petitions for new petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008)
Concern that L-1B petitions for Indians have been singled out might be alleviated if the data showed other countries have experienced similar increases in the rates of denial for L-1B petitions with U.S. Citizenship and Immigration Services. However, the data show that while other foreign nationals experienced an increase in denial rates for new L-1B petitions starting in FY 2009, those denial rate increases were far lower than for Indian nationals. L-1 visa issuance declined at U.S posts in Indian in FY 2011 but rose overall for the rest of the world."
NFAP clearly found that the consular posts in India and the USCIS have been functioning under a set of their own internal guidelines and policies NOT supported by the regulations and statutes as enshrined in the Immigration and Nationality Act (INA) which governs U.S. Immigration Law.
The reasons why USCIS/US Consular Posts in India, in particular, have adopted this new internal policy remains unclear, but raises troubling questions, especially in light of the fact that a prior study by NFAP which was published in December 2011, found that almost half of the top 50 venture backed companies in the United States were started by Immigrants.The study found that of the top 50 venture-backed companies, 23 had at least one immigrant founder; additionally 37 of the 50 companies employed at least one immigrant in a key management position such as Chief Technology Officer.
Companies with Immigrant founders include some of Silicon Valley’s hot start-up’s such as textbook rental service Chegg, founded by Indian Aayush Phumbhra, and Briton Osman Rashid; Esty founded by Swiss Haim Schoppik, and Glam Media founded by Indians Samir Arora and Raj Narayan. According to study, the countries that supplied the most founders included India, Israel, Canada, Iran and New Zealand, the study found, and the immigrant-founded companies created an average of 150 jobs.
Whilst much of Silicon Valley and other entrepreneurs have been asking Congress to ease Immigration measures to allow entrepreneurs to stay or enter the U.S, the USCIS and certain Consular Posts seemingly follow internal policies that will do little more than encourage foreign entrepreneurs to look to countries like India and China to start companies there that will eventually compete with U.S. based companies; an outcome the U.S. can ill afford given current economic realities.