What to do if your H-1B Visa is Denied?

Introduction

H-1B denials can be devastating for both employers and employees, as they can result in job loss, financial difficulties, and the need to leave the country.

In this blog post, we will explore the common reasons for H-1B denials, the consequences of denials, and what you can do if your H-1B visa application is denied. This blog will guide you to understand what you must do if you face H-1B denial.

H-1B Overview

H-1B visa is a non-immigrant visa that allows U.S. employers to hire foreign workers in speciality occupations. To qualify for an H-1B visa, the foreign worker must have a job offer from a US employer in a speciality occupation that requires a bachelor’s degree or higher in a specific field. The H-1B visa is valid for up to three years and can be extended for up to six years. It is a popular visa for foreign workers who wish to work in the United States temporarily.

Different Application Stages Where H-1B Can get Denied

There are several stages in the H-1B visa application process where the visa can be denied:

1. Labor Condition Application (LCA): Before filing an H-1B petition with USCIS, the employer must obtain an approved LCA from the Department of Labor (DOL). If the DOL determines that the employer has not met the requirements of the LCA, such as paying the prevailing wage, the LCA may be denied.

2. H-1B Petition: The employer files the H-1B petition on behalf of the employee with USCIS. If the USCIS finds that the employer has not fulfilled the requirements, such as proving that the position is a specialty occupation or that the foreign worker is qualified for the position, the petition may be denied.

3. Request for Evidence (RFE): If USCIS requires more information to make a decision on the H-1B petition, they may issue an RFE. If the employer or foreign worker does not respond to the RFE or the response is insufficient, the H-1B petition may be denied.

4. Consular Interview: If the foreign worker is outside of the United States, they must attend a consular interview to obtain the H-1B visa. If the consular officer determines that the foreign worker is ineligible for the visa, the visa may be denied.

5. Border Inspection: If the foreign worker is already in the United States on a different visa or under the Visa Waiver Program, they must present their H-1B approval notice at the port of entry. If the border inspector determines that the foreign worker is inadmissible, they may deny entry and the H-1B visa may be effectively denied.

H-1B Visa Denied - Know Major H-1B Visa Rejection Reasons

1. Failing to meet the eligibility requirements

The USCIS may reject an H-1B visa application if the beneficiary does not meet the minimum requirements for education or work experience.

2. Incomplete or Inaccurate Information

If the application is incomplete or contains inaccurate information, the USCIS may reject the application.

3. Insufficient Documentation

The USCIS requires specific documents to support the H-1B visa application, such as educational certificates, letters of support, and other documents. If the required documents are missing or inadequate, the application may be rejected.

4. Employer-Employee Relationship

If the USCIS determines that the employer does not have a legitimate employer-employee relationship with the beneficiary or that the beneficiary will not be working in a specialized field, the application may be rejected.

5. Prevailing Wage Issues

If the employer fails to pay the beneficiary the prevailing wage for the job, the application may be rejected.

6. Negative Labor Condition Application (LCA)

If the LCA is found to be incomplete or contains inaccurate information, or if the DOL determines that the employer is not in compliance with the attestation requirements, the H-1B visa application may be denied.

7. Security Concerns

If the beneficiary has a criminal record or has been involved in activities that raise security concerns, the H-1B visa application may be rejected.

Note: It’s essential to note that each application is evaluated on a case-by-case basis, and the USCIS may reject an H-1B visa application for other reasons not listed above.

H-1B Denial Rate

Over the last decade, the average H-1B visa denial rate was 17.9%, but this rate has fluctuated significantly from year to year.

Year	Denial Rate
2022	5%
2021	4%
2020	13%
2019 & 2018	24%
2017	41%.
2016	12.7%
2015	15.5%
2014	20.3%
2013	22.4%
2012	22%

Note: The denial rate for H-1B visas has been influenced by various factors such as changes in immigration policies, economic conditions, and other factors.

How to Avoid an H-1B Visa Denial

If you are applying for an H-1B visa, here are some tips to increase your chances of approval and avoid a denial:

Work with an experienced immigration attorney: An experienced immigration attorney can help you understand the H-1B visa requirements, guide you through the application process, and provide assistance in case of any issues or questions.

Make sure you meet the eligibility criteria: Ensure that you meet all the eligibility criteria for the H-1B visa, such as having a job offer from a U.S. employer in a speciality occupation that requires a bachelor’s degree or higher.

Provide complete and accurate information: Ensure that all the information provided in your H-1B application is complete, accurate, and verifiable. Any inconsistencies or errors can lead to a denial.

Provide all necessary documentation: Submit all the required documents, such as educational and professional credentials, employment contracts, and evidence of work experience, to support your application.

Adhere to deadlines: Meet all the application deadlines, including the filing period and any deadlines for submitting additional documentation or responding to requests for further information.

Be prepared for a Request for Evidence (RFE): If you receive an RFE, respond promptly and thoroughly with all the requested information and documentation. An incomplete or insufficient response can result in a denial.

Can the H-1B Visa be denied even after USCIS approves the petition?

Although the USCIS (United States Citizenship and Immigration Services) may approve an H-1B visa petition, it is still possible for the visa to be denied. This is because the final decision to grant the visa rests with the U.S. Department of State (DOS) consulate or embassy where the applicant applies, and the consular officer has the authority to deny the visa based on various reasons such as eligibility, false information or documentation, security concerns, lack of ties to the home country, and inability to demonstrate non-immigrant intent. Even if the visa is approved, the applicant may still be denied entry into the United States by the U.S. Customs and Border Protection (CBP) officer at the port of entry based on lack of proper documentation, security concerns, or other reasons.

Reasons for rejection can include failure to demonstrate eligibility for the visa, concerns about ties to the home country or the United States, security-related issues, errors in the application, or changes in the applicant’s circumstances since the petition was filed.

What to Do if your H-1B is Rejected?

If your H-1B is denied, there are several steps you can take to comprehend the reason behind the denial and examine available options to proceed. The following are some steps you can consider taking:

⮞ Understand the reason for the rejection: The first step is to understand the specific reason for the rejection. If you received a letter or notice from the U.S. Citizenship and Immigration Services (USCIS) or the U.S. consulate or embassy explaining the reason for the rejection, review it carefully to understand the issues raised.

⮞ Consult with an experienced immigration attorney: It may be helpful to consult with an experienced immigration attorney to understand the reason for the rejection and explore your options for moving forward. An attorney can help you assess your eligibility for the H-1B visa, identify any issues with your application, and recommend strategies for addressing them.

⮞ Request a review of the decision: If you believe that your H-1B visa application was wrongly rejected, you may be able to request a review of the decision. This will generally involve submitting additional documentation or evidence to address the concerns raised in the rejection notice.

⮞ Consider alternative visa options: If your H-1B visa application is rejected, you may be able to explore alternative visa options that are better suited to your circumstances. For example, you may be eligible for an L-1 visa if you have worked for a foreign company that has a U.S. subsidiary, or an O visa if you have extraordinary abilities in your field.

⮞ Reapply for the H-1B visa: If your H-1B visa application is rejected, you may be able to reapply in the future after addressing the concerns raised in the rejection notice. It is important to work with an experienced immigration attorney to ensure that your application is strong and addresses any issues raised in the previous litigation.

H-1B Extension Denied

An H-1B extension denial means that the U.S. Citizenship and Immigration Services (USCIS) has decided not to approve your request for an extension of your H-1B visa. This means that you will not be able to continue working in the United States after the expiration of your current H-1B visa. The reasons for denial could vary, such as failure to meet the requirements, insufficient evidence, or violation of immigration regulations. It is important to understand the reason for the denial to decide the next steps to take, such as appealing the decision or exploring alternative visa options.

What does H-1B Transfer Denied mean?

H-1B transfer denied refers to the situation where a foreign worker who currently holds an H-1B visa and is seeking to transfer to a new employer, has had their transfer application rejected or denied by the U.S. Citizenship and Immigration Services (USCIS). This means that the worker may not be able to transfer their H-1B status to the new employer and may have to leave the country or find an alternative solution.

What to Do if Your H-1B Transfer is Denied While in the United States

If H-1B transfer is denied in the US, the employer can file a new I-129 petition addressing the issues and providing required documents. If not possible, consider other options like extending/changing current status by filing another I-129 petition.

While a new petition is being filed, you must maintain valid immigration status if you continue working for your current employer. Consult with an experienced immigration attorney to determine the best course of action and avoid any potential consequences.

What to Do If Your H-1B Transfer is Denied While Outside the United States

If you are outside the US and your H-1B transfer is denied, there are several things you can do:

Consider filing a new H-1B transfer petition.

Explore alternative visa options, such as O -1 or L-1 visas.

Consider other employment opportunities in a country where you have work authorization.

If you plan to reapply for the H-1B transfer, address the reasons for the initial denial and provide any additional documentation required.

Consult with an immigration attorney to understand your options and develop a strategy for moving forward.

Even if an H-1B transfer is rejected, there is no need to panic because you are still eligible to work for your current employer or return to your previous employer as long as your visa remains valid. A more detailed explanation can be found in the scenario provided below:

If your H-1B transfer is denied can you continue with your current employer?

If your H-1B transfer is denied, you may continue working for your current employer as long as your current status is still valid. However, if your current status is tied to the H-1B transfer that was denied, you may need to consider other options, such as changing your status or filing a new H-1B transfer petition. It’s important to consult with an experienced immigration attorney to determine the best course of action in your specific situation.

If your H-1B transfer is denied can you go back to the previous employer ?

Yes, you may be able to go back to your previous employer if your H-1B transfer is denied, as long as you still have valid status with your previous employer. It’s important to carefully review your previous employment contract and any applicable immigration regulations to ensure that you are following the correct procedures for returning to your previous employer. You may also want to consult with an experienced immigration attorney to understand your options and any potential risks.

Conclusion

If your H-1B visa is denied, you can explore options such as reapplying, appealing, changing visa categories, or seeking assistance from an immigration attorney. It’s important to carefully consider your next steps and to have a backup plan in case your visa application is not approved.

How Can Kodem Law Help?

Kodem Law can help by assessing your case, filing an appeal or pursuing other legal remedies, providing guidance on alternative visa options, navigating compliance issues, and providing ongoing support throughout the immigration process. With our expertise, you can work towards achieving your immigration goals, even if your H-1B visa is initially denied.