H-1B Visa Denial

Over the past few years, the H-1B visa denial rate for initial employment has increased sharply, making it more difficult for foreign national applicants and U.S. employers to use this popular temporary work visa classification.

The cause for denial can be attributed to either the beneficiary or the petitioning employer. It is essential to know the top reasons for H-1B visa denial so that you can avoid these common pitfalls. Also, if you have already received a denial letter, this article explains various options you can explore to overcome the denial.

H-1B Visa Overview

The H-1B category is a nonimmigrant employment visa for foreign nationals who qualify for specialty positions in the U.S. It has a total annual quota of 65,000 for applicants with bachelor’s degrees or higher. There is also an additional 20,000 visas for qualified applicants who have an advanced degree. You may apply for an H-1B visa under any of these three subcategories:

  • H-1B1: Specialty Occupations;
  • H-1B2: Department of Defense (DOD) Cooperative Research and Development Project; or
  • H-1B3: Fashion Models

H-1B Visa Denial at Different Application Stages

An H-1B visa denial can occur at any of the three main application process stages, which are:

  • Getting a Labor Condition Application (LCA) from the U.S. Department of Labor (DOL);
  • Filing an I-129 Petition for Nonimmigrant Worker with the United States Citizenship and Immigration Services (USCIS); and
  • Going through the Nonimmigrant Visa Application process with the Department of State (DOS).

What are the Top Reasons for H-1B Visa Denial?

The H-1B visa application involves both the employer and the beneficiary employee. Therefore, errors or ineligibility from either party in any of the above three stages can lead to denial. The following are some of the top reasons:

H-1B Visa Denial

Specialty Occupation Requirements

An H-1B visa petitioner must be able to establish that the position meets the criterion for a specialty occupation. To do this, the job description must meet one of these four requirements concerning specialized knowledge as given by the USCIS. If the USCIS cannot firmly establish this fact in the petition filed by the employer, your application may be denied.

Not Presenting Appropriate Academic Qualifications

Your prospective employer must prove that you have the required credentials for the job. Your academic qualifications and the field of study must specifically match the job requirements. If your degree is in an unrelated or loosely related field, but you have years of work experience in a related field, your employer will need to convince the USCIS that the years of experience plus the education is equivalent to the required qualifications for the job position.

It is also essential for the employer to provide a list of responsibilities, roles, as well as educational and experiential requirements to perform the job. There must be a link between the job description and the requirements for the position.

Third-Party Work-Site

If an H-1B beneficiary is going to work at a third-party worksite, the petitioner must prove that the employee’s duty will be in a specialized role from the beginning to the end of the visa’s validity period. This may be established by providing an itinerary that will detail his or her day-to-day tasks at the third-party site.

Maintenance of Status

Difficulty maintaining your status is an issue for visa applications in general. If you (the beneficiary) have a previous visa that you didn’t maintain properly or there is any questionable activity in your current or previous stay in the United States, the petition could be outright denied. This can be prevented or resolved by providing copies of previous I-94 cards, employment verification letters, pay stubs, I-979 approval notices, travel itineraries, and other related documents.

Employer-Employee Relationship

Failure to establish a legitimate employer-employee relationship is another top reason for H-1B visa denial. H-1B petitioning employers are required to convince immigration officers that they will maintain the right to control their H-1B beneficiary’s work throughout the period of employment.

This is even more essential if your primary place of duty will be at a third-party worksite. Failure to present documents to prove this, such as contract agreement detailing the terms and conditions of the job offer, may lead to H-1B application denial.

The employer-employee relationship requirement is one of the main reasons why self-petitioning does not work for the H-1B. If you would like to be sponsored by your own business, you will need to set up a third party (such as a board of directors or chief executives) that has the ability to hire and fire you. Only this entity can sponsor you for an H-1B visa and you will need to show that an employer-employee relationship exists.

Inadmissibility

There are several factors that can make a visa beneficiary inadmissible to the United States. If the consular officers suspect that your presence in the United States will pose a threat to the safety or health of others, your visa application may be denied.

Inadmissibility in the context of immigration applies to both applicants who are outside the U.S. and those already in the U.S. This means that your H-1B visa application could be denied based on inadmissibility regardless of your location. The following are some of the significant factors that can make you inadmissible:

  • Living with communicable infection or disease
  • Having mental or physical disorders that may cause harm to oneself or others
  • Those without proper vaccinations
  • Drug addicts or abusers
  • Drug traffickers
  • Immigration law violators
  • And many others 

Note: Some of these inadmissibility factors can be waived if you work alongside an immigration attorney and provide enough supporting evidence.

Prevailing Wage Issues

This is one of the main aspects of LCA processing. The H-1B petitioning employer must be able to convince the DOL that he or she is willing and capable of paying the beneficiary the prevailing wage for the job position. The prevailing wage, according to DOL definition, is the “average wage paid to similarly employed workers in a specific occupation in the area of intended employment.”

If the employer fails to prove his or her willingness and capability as required by the DOL, then the LCA, and thereby the H-1B petition, will likely be denied. To be sure of the current prevailing wage for a particular position, a petitioning employer can check the Online Wage Library on the Foreign Labor Certification Data Center website.

Not Responding to a Request for Evidence Notice

In some cases, before an H-1B visa denial, the immigration agency will provide a warning for petitioners to correct an issue with their applications. This warning usually comes in the form of a request for evidence (RFE), with a deadline by which the required item must be submitted. If your employer does not respond to the RFE by the deadline, a denial will be issued.

Filing Fees

This is one of the main reasons for H-1B denials. An issue with the filing fee may arise if the petitioner does not submit the fee along with the petition or the fee submitted is insufficient. H-1B fees vary widely depending on certain factors such as opting for the premium processing service as well as the number of employees under the petitioner’s company. You must understand the exact fee required of you and ensure you pay accordingly. Currently, the H-1B visa filing fees are as follows:

  • Basic filing fee – $460,
  • Fraud prevention and detection fee – $500
  • Public law 114 – 113 fee: $4,000 (if your organization has more than 50 employees and more than half of them are H-1B or L-1 holders).
  • Premium processing fee –  $1,440

How to Avoid an H-1B Visa Denial

Despite the high rate of H-1B visa application denials, both the petitioner and the beneficiary can boost their approval chances by being very thorough when filing their petition. Here are a few tips:

Double Check Your Documents and Forms

Before filing your petition, you need to go through the requirements for the particular position you are applying for and ensure you have all of the necessary documents ready.

After filling out each form, double-check and ensure that each input line adheres with the instructions. Also, you need to be sure that all the forms are signed before submission—the immigration agency will not process an unsigned petition.

Avoid Improper Delivery

After a thorough review of your documents, you need to ensure that they are sent to the correct service center along with the appropriate filing fees. The best way to ensure this is to always use an officially bonded delivery service such as USPS, UPS, or FedEx. Avoid delivering your documents by hand or using unbonded delivery services.

Give Clear Explanations

Some aspects of the H-1B application require clear explanations in order to back up certain supporting evidence. You need to ensure you give convincing points that will justify your claims.

Work With Immigration Attorney

This is your best bet for improving your chances of H-1B approval. An experienced H-1B immigration lawyer will help you file your petition in accordance with the USCIS requirements and ensure you avoid the pitfalls that lead to H-1B visa denial.

What to Do If Your Petition Is Denied

There are several options for you to explore if your H-1B petition is denied. The denial letter should contain the reason for why the petition is denied. This will help determine the next step to take.

Firstly, there is a difference between “rejection” and “denial” in the immigration world. A rejection simply means that there was an error with your filing or fee payment that can be corrected. A denial occurs when either you or your employer are not considered qualified for an H-1B.

If the reasons are what can be corrected by you or your employer and your petition was rejected, your employer can file a new I-129 and ensure the previous mistake or issue is avoided completely. For instance, if your application was denied because your employer forgot to include an important document, you will need to ensure that the document is included this time around before submitting the petition.

Another factor will be your location, whether you are in the United States or you are applying from outside the U.S.

If You Are Outside the United States

As stated above, if the reason for the rejection is something that can be rectified, you can quickly do so after receiving the denial notice by filing another I-129. However, this must be done quickly due to the annual limit on the number of H-1B visas that can be issued in a year.

If the limit has not been reached, your case may still be adjudicated after correcting the error and resubmitting a new petition. However, if the limit has been reached, your option will be to wait until the following year.

But if you are dedicated on entering the U.S. so soon and cannot afford to wait, or the reason given for the denial is not as easily fixed, you may explore another nonimmigrant visa option. You can consult an expert immigration attorney to guide you on the best visa option.

If You Are In the United States

If you are already in the United States on a legal status, your employer may also file a new I-129 petition on your behalf, provided the initial rejection issues can be corrected. However, if the deficiencies not easily corrected, you may want to consider extending your current status or changing to another status. To achieve this, your employer will also need to file another I-129 petition requesting for either a change to a new status or an extension of your current status.

Can I Appeal the Decision?

If your I-129 petition is denied by the USCIS, your employer may be able to file an appeal by submitting an I-290B along with additional supporting evidence. However, many (if not all) H-1B denial notices state that an appeal is not possible. If you are an exception, the appeal must be filed not later than 30 days after receiving the denial notice. However, keep in mind that a visa denial appeal can take you several months or years to process.

In most cases, it is better to file a new petition than to spend a long time pursuing an appeal that doesn’t guarantee a favorable end. To be sure of the best option for you, you will need to speak with your immigration lawyer.

How Our Immigration Attorneys Can Help

The H-1B visa petition used to have a much lower denial rate. However, over the past several years, the rate has risen from 6% in FY 2015 to 33% through the second quarter of 2019. This is why it is essential to seek legal help from an experienced H-1B visa attorney.

At Immi-USA, we have a team of highly experienced H-1B attorneys who will help you file your petition and ensure all pitfalls that could lead to denial are avoided. Also, if you have already received a denial notice, our attorneys can help you overcome the decision. You can get in touch and schedule a consultation with one of our H-1B lawyers today by filling out this contact form.