While we routinely have H-1B petitions approved, we now must proactively include extensive documentation to have the petition approved. We hear reports from other immigration practitioners of increasingly high H-1B denial rates, and complaints about the difficulty of having H-1B petitions approved.

However, USCIS recently released data regarding the H-1B cap denials, receipts, approvals, etc. This data indicates that USCIS's overall H-1B denial rate, at least for cap cases, has been decreasing since a high of roughly 11.8% in Fiscal Year (FY) 2010. The USCIS denial rate was about 6% in FY 2011, and about 4.8% in FY 2012. While this is potentially a great sign of improvements in USCIS training, there could be some other possible explanations as well:

• It's possible that the employers (and/or their attorneys) who have continued to file H-1B petitions have proactively re-structured their filings, as we have at Sumner Immigration Law, to include documentation to address some of the commonly raised RFE issues.
• It's possible that those employers who cannot provide the documentation needed to have a petition approved these days have simply stopped filing in such high volume, allowing those H-1B cap numbers to go to other employers (who can provide such documentation).
• The figures cited above, and provided by USCIS, do not include the RFE (request for evidence) rate, only the denial rate. It's possible that some employer receive boilerplate or "kitchen sink" RFEs, asking for extensive documentation, and simply withdraw the petition rather than spending the time and money to respond to such extensive requests.
• The figures recently released by USCIS only address H-1B cap-subject cases - that is, cases submitted by cap-exempt institutions, and H-1B transfers and extensions were not included.

What does this mean for you?

Having an H-1B petition approved, even for a start-up company, or a staffing company (such as for IT consultants), is not an impossibility. Rather, it is quite possible, if you proactively structure the filing to provide the additional information USCIS will likely request, up front. How do you know what to provide? Every case of course is different. However, it is critical to select an immigration attorney who is intimately familiar not only with the overall H-1B requirements and process, but also with the most recent H-1B adjudication trends and requirements. For more information on filing an H-1B petition for a consultant who may need an end client letter (but can't get one!) please see this post: http://goo.gl/0xv1S.

As always, this information is intended for general educational purposes only, and does not constitute legal advice. You must speak with an experienced immigration attorney before taking or not taking any action based on this information.