The US Citizenship and Immigration Services receive tens of thousands of H-1B visa applications per year. However, many of those applications get denied for several reasons, some of which include not providing evidence notice of detailed work assignments or improper delivery, inability to pay the required filing fees, and the transfer being of a questionable nature, among others.
The H-1B visa rejection rate tripled between 2017 and 2019 for the same position; several industries have ideas for why this is so. The visa application process for every job shop and change is challenging, and having to go through it more than once is something you want to avoid.
What Happens if H-1B Is Denied for a Legitimate Employer-Employee Relationship?
If your H-1B application is denied, you can stay in the US until the departure date on your arrival or departure card provided you are in compliance with all the tax returns based on your tax identification number.
However, if you lose your employment before your H-1B validity period ends, you have sixty days to find alternative employment. If there is a substantive legitimate employer-employee relationship, you may also change your status and job title or leave the country within that time frame. You can also inform your current employer to inform your new employer of the denial and its legal status.
Remaining in the US after the expiration of your departure date will put you at serious risk, especially if your employer fails to acknowledge that you possess highly specialized knowledge. The system will consider you “out of status,” which can lead to you being barred from ever returning to the country.
How Many H-1B Visas Are Denied By Immigration Services?
As of 2019, the United States denied one in five H-1B visa applications or experience letters; this is higher for Indian IT companies. Technology industries use the H1B visa to hire thousands of employees from China and India who meet the academic qualification for the job. The number of denials is much higher for Indian IT companies like Wipro and very low for American companies like Google because of the employer’s premises being larger.
Worthy of mention is that the United States Citizenship and Immigration Services doesn’t deny H1B applications because it wants to. No, it first carries out background checks to determine client location, employer location, feedback from previous employers, and whether or not proper documentation has been done at the established location.
What Percentage of H-1B Is Approved for Specialty Occupation?
The approval percentage of H-1B visa petitions was 97.3% from October 2020 to September 2021, the highest recorded in a decade. Interestingly, most of these approvals that enjoyed premium processing were for individuals of a specialty occupation and those who perform a core task.
The USCIS received close to 400,000 petitions for initial and continuing employment or renewals in this time frame. A recent report said that the US has already received enough petitions to reach the mandated 65,000 H1B visa cap for 2022 and that is why many petitioners received denials.
The congressionally mandated cap for an H1B visa has been 65,000, with an additional 20,000 for foreign professionals with a master’s degree who are vying for a particular position provided they don’t have insufficient documentation. The lottery results for 2022 will be announced on 31st March 2022, and those eligible for the entire duration will be known and their financial statements will be reviewed.
To be approved for a specialty occupation you must possess at least a bachelor’s degree in that field, have your employment verification letters to show there is pending labor certification, and have a contract agreement.
The contract agreement should contain the employer’s educational background or academic qualification like a bachelor’s degree, the prevailing wage, and the average wage paid for the job description. Similarly, previous visa applications for any third-party work site should be reviewed and the employer’s primary worksite should be ascertained.
What Is the Rejection Rate of H-1B?
Reports from recent studies show a steady rise in the rate of H1B petition denials. From past studies, the denial rate of the H1B petitions has never been more than 6%, but it increased by double to a 12 percent rate in 2018 and 18% in 2019.
Another study established that about 30% of H1B visa petitions filed in 2018 received requests for evidence (RFEs), which is 16% less in previous years. Meanwhile, the approval rates of visa petitions subjected to RFEs fell from 2015’s 80 percent to 60 percent in 2018.
Avoid These 3 Reasons for H-1B Denials
Many things constitute the denial for H1B petitions; avoid these three at all costs:
- Not having a good relationship with your employee for the duration of the requested employment period. Agencies want to ascertain whether or not the employer has sufficient control over the employee.
- Failure to establish that the job you’re currently doing is a specialty occupation – is the most frequent reason for H1B denials. For your H-1B to be approved, your employer and similarly employed workers need to show that the position you’re in is a specialty occupation and that you have the specialized knowledge for any current and continuous project.
- Failure to provide the required credentials for working in a particular job; your education must match the job requirements based on the employer-employee relationship USCIS provides for. For example, if you have a bachelor’s degree, the third-party site you want to work for as a foreign worker must need that qualification. “Close enough” used to be enough to gain approval, but that is no longer the case for intended employment.
What Are 5 Major Reasons H-1B Visas Get Denied?
Below are some common reasons for H-1B visa application denial that you want to avoid at all costs:
- Insufficient submissions by the petitioning employer to show that the employer is an established entity in the country and has the power to provide specialty occupation work to the H1b employee.
- H-1B beneficiaries don’t have real ties to their home country.
- Beneficiaries have previously been away long-term from their native countries or stayed in the US.
- Sending documents and payments of the prevailing wage using an un-bonded delivery service or the wrong service center.
- Past discrepancies of employee or employer with or violations of immigration law, including being considered “out of status” or committing a crime.
USCIS Rolls Out the Top 10 Reasons Why H1B Visas Get Denied
Below is a list of top USCIS issues that warrant an H1B denial, ranging from the most common to the least common.
- Failure to establish in the initial petition that the position being filled qualifies as a specialty occupation as provided for by immigration laws.
- Failure to establish proof of valid employer-employee relationship with the H1B beneficiary.
- Failure to establish that the H1B employee will be engaged in a specific assignment for the requested employment period that aligns with the beneficiary’s qualifications.
- Petitioning employer’s failure to supply proof that the H1B employee fulfilled the requirements for the specific specialty occupation.
- Failure to show that the H1B beneficiary properly maintained their current visa status.
- Failure to provide sufficient proof or firmly establish that the employers had specific work assignments for H1B employees to be placed in-house for the employment period.
- Failure to show proof that employers have a properly certified LCA (Labor Condition Application) from the Department of Labor corresponding to the said position.
- Failure to establish that the H-1B employee was eligible for AC21 benefits or, alternately, an H-1B extension.
- Employers’ failure to provide a detailed itinerary with a petition requiring services to be performed in two or more locations.
- Employees’ failure to pay all the required H-1B filing fees, including the Workforce Improvement Act of 1998 and American Competitiveness fees.
The Top Reasons for H1-B Denials & RFEs – What Should You Expect this Year?
Following past trends, here are the top ten reasons to expect this year for RFE issuances or outright H-1B visa denial:
- Specialty occupation – inability to establish that the said role was a specialty occupation.
- Issues with the H-1B beneficiary’s background or academic qualifications for the specialty occupation position.
- Failure to establish that the beneficiary will be working at a third-party worksite in the requested employment period.
- No legitimate relationship was formed between the H1B employees and their employers.
- When an H-1B beneficiary doesn’t apply for an extension before the visa expires, they will get an RFE.
- A beneficiary will be issued an RFE or outrightly denied if he doesn’t maintain his visa status.
- If employers fail to establish that the employee will also be working at the former’s primary worksite, it can lead to an RFE or denial.
- If job duties span different locations, the itinerary of services should provide the details – or there’ll be an RFE or outright denial.
- Not supplying a detailed description of the skills, education, and experience requirements can result in a denial or an RFE.
- Failure to submit the requisite H1-B filing fees along with the petition can mean an RFE or straight-up denial.
Can You Continue Working After H-1B Visa Denial?
You cannot continue working for a new employer if your visa petition has been denied. However, you can begin work immediately after the USCIS receives and confirms your petition. You may continue working while your visa is still under consideration, but you have to stop once you get a denial notification.
Steps You Can Take To Rectify H-1B Denial
If your H-1B application is denied, there are several steps you can take, depending on why the application was denied:
- Have your employer file a separate 1-129 petition on your behalf; you may need to seek a qualified immigration attorney’s counsel.
- File a legal motion to reopen or reconsider your case by seeking the services of an experienced immigration lawyer or law firm.
- If the issue was improper documentation or filing fee, you can refile and seek approval after fixing the mistake.
What Other Likely Reasons Can Result in H-1B Denial?
- Close affiliation with a bag profile in the country;
- Foreign workers have relatives currently residing in the US;
- Previously denied or pending H-1B visa petition;
- Economic recession in the country or unemployment for USA citizens;
- Applicants’ poor presentation during H-1B visa interview.
Can You Re-apply for H-1B After Denial?
You can re-apply for an H-1B visa the next year, but you must be ready to follow the process all over again. The process is a daunting process that includes many stages, including convincing the company that you are eligible for the visa application.
Also, you want to avoid making the same mistakes that attracted a denial in the first place, and that is why you need to build a healthy attorney-client relationship.
How Can Richard Herman Help You?
We understand that having your H1B application denied can be frustrating as we have worked with many other clients like you. Truth be told, you don’t just need an immigration attorney, you need the best you can get, and that is where Richard Herman Group comes in.
We have been handling immigration matters for over 26 years and you can be confident in our abilities, especially as it relates to H1B being denied.
Richard Herman Group can provide you with the best immigration attorney to help prevent H1B denial and guide you through the process of rectification if yours has been denied. You can schedule a consultation to hold on Facetime, Zoom, Google Meet, or Skype or call us via +1-216-696-6170. To schedule a personal consultation with Richard Herman, you can book by filling the online form.
Due to the increasing rate at which H-1B visas are denied, you need to familiarize yourself with the common causes. This way, you can avoid having your H-1B application denied and, also, what you can do if it is. You will understand the factors the USCIS uses in judging visa eligibility and save yourself the torture of facing an RFE or outright denial.
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