A better job opportunity appears for you when you already live the American dream on your H-1B visa; getting your H-1B transfer denied or your immigration status void can be quite devastating. To this end, the question for many has always been around why their transfer applications are always denied and what can be done to seek approval provided by the appropriate authorities.
H-1B cap subject petitions in the United States have gradually faced greater scrutiny from authorities, causing increased cases of transfer denial. As an H-1B visa holder, you certainly understand that an H-1B transfer option is available but as a petition employer, you are not sure you will be approved.
Interestingly, you may not be so conversant with the changes and reasons for the denial. Sometimes, it is due to insufficient submissions and other times it is the inability of providing sufficient proof that makes an employer unable to access H1B transfer for persons hired for a previous job.
This article gives you some of the common reasons your transfer request of an intended employment or a new job can be denied, a brief overview of H-1B transfers, the current laws governing a petitioning employer, and all the alternatives to consider after transfer denial.
The H-1B Transfer Process Simplified
Before getting into some of the top transfer denial reasons, let’s briefly go through an overview of the H-1B transfer process. The H-1B transfer process entails moving from one employer to another while still on the H-1B visa status with a need to provide tax documentation. The H-1B status provides an opportunity for employees to accept and receive job offers from other employers in the United States or in a different client location during their work stay.
However, employees cannot switch jobs without satisfying immigration and labor requirements, administered through H-1B transfer processing. Failure to satisfy every requirement does not only affect his or her decision to move, it also amounts to insufficient proof which is a valid ground for denial. The transfer process can take several months, and you need to pay attention while following each process to avoid denial.
Why Are H-1B Transfers Denied?
H-1B transfers are usually denied due to incorrect payments of processing fees and lack of proper documentation. It can also be as a result of inadequate employment authorization, previous transfer denial that have not been rectified, or the operating entity not being legally permitted to work in that region. Also, more complicated grounds like issues concerning the employer, employee, or the conditions of employment can be reasons for the denial.
Talking about the conditions for employment, a wrong service center, incomplete immigration requirements, invalid or illegal work contract agreements, no active contracts for specialty position related are all reasons that may defy appropriate work conditions.
If you do not make complete payments during the transfer application or take an incorrect payment option, your transfer denial will be a good basis.
Grounds of qualification and skills needed for the particular job transfer may be used to deny an H-1B transfer. Extensive documentation is usually required, and employers also have to prove they have the capacity and the correct wage structure to accommodate a new employee.
What Happens if H-1B is Denied?
After your H-1B transfer is denied, you would have to re-evaluate your working options. First, you can not work for your new employer since you have no transfer permission. It would be best to consider other employment options or return to your former employer if that opportunity still exists because you must work to keep your H-1B status valid.
You may also want to build a good attorney client relationship with an immigration law firm who is versed in immigration laws. That way, you can understand the immigration status, immigration system, and the un bonded delivery service before applying for an H1B transfer. Getting an immigration attorney before the process is commenced is great, but nothing stops you from getting it after it has been denied.
As the petitioning United States employer, your attorney can figure out an assigned service center and review insufficient submissions demonstrating lack of due diligence. You can also enjoy premium processing as the qualified immigration attorney as been doing so for many years
Can You Appeal if Your H1B Has Been Denied?
The exact action you will take after denial is largely dependent on the specific reason why your transfer was denied. If it was denied because the job falls below the prevailing wage request, then you must take the right step to rectify that. If it has to do with other reasons other than the prevailing wage, then you have to find out why. Is it because you have not paid the basic filing fee? Or because you have not met the requirements for officially bonded delivery services?
You could go for document refiling for premium processing if the basis for denial were an application error or payment mix-up. In some circumstances, if there is an existing employer employee relationship, your employer can file a new application that addresses the basis for denial through evidence of specialty occupation or specialized knowledge in a particular field.
Usually, your letter of denial may advise that there will be no use for an appeal by both the employer and the employee, but you can qualify for one under some specific cases. Typically it is best to consider your chances based on the labor and immigration requirements before initiating an appeal.
What to Do if Your H1B Transfer is Denied?
Usually, H1B transfer applicants may start working for their new employer as soon as their transfer application (which must in compliance with immigration law) has been sent to the USCIS. However, it is recommended that you wait until transfer status is granted before starting new employment in case of denial.
If you experience transfer denial, you will not have the H-1B status to be employed by your new employer and this can drastically affect the employer employee relationship. You will have to cease working as soon as you receive a denied notification. However, you may go to your previous employer if your valid H-1B status for them still holds and if they treat foreign workers fairly.
Can You Stay in The United States After an H1B Transfer Denial?
When your H-1B transfer application or petition is denied, you are allowed to remain in the United States until the expiry date on your I-94 visa card. Generally, staying in the U.S. after your given visa date can have major implications on any future visa applications.
However, with time remaining on your current H-1B visa, you have a 60-day grace period where you can regularize your working status. You may find new H-1B employment in this duration or return to your previous employer. If you fail to regularize your working status within that period, you must leave the U.S.
Does LCA Approval Confirm Your H1B Transfer?
Receiving your Labor Certification Application (LCA) approval does not guarantee your H1B transfer success. Essentially none of these two processes is dependent on the other. The USCIS handles your H1B transfer, while the department of labor controls the LCA. So your H1B transfer may still be denied if your LCA is accepted.
What Are the Chances of H-1B Transfer Getting Rejected By United States Citizenship and Immigration Services?
There has been a rising rate of denial on H-1B transfers due to the United States Citizenship and Immigration Services (USCIS). Although most people, especially those with a bachelor’s degree or those of a specialty application have their transfer approved, many others still get denied.
Essentially you have a good chance of getting your H-1B transfer rejected if you do not meet the requirements for your new employment or have issues with payments and documentation. If you tick all these boxes, your chances of getting denied are very low. Also, if an employer hires legal workers or any other sufficient specialty occupation work, you may not be denied. However, as an employer, if you are unable to pay the prevailing wage, your transfer will be denied.
How Common is RFE for H-1B Transfer?
During the H-1B Transfer process, further information could be needed from the employer, employee, or even both. Usually, there is a good chance that an applicant will receive an RFE document after an H-1B transfer application. An RFE means an additional request or requirement for evidence.
Generally speaking, there is a 30% chance that you will receive an RFE during your H-1B transfer process. There are different RFE types. Some focus on your qualification and education, while others focus on the relationship between you and your employer.
H-1B Transfer Denied: Rejection Reasons and Alternatives
Causes for denial affect both the petitioner (employer) and the beneficiary (employee). Some of these reasons are;
Sometimes, your H-1B transfer can be denied if your employer cannot show they can hire and accommodate wages for your new employment. They will have to provide documentation like company financial statements to prove their recruiting ability.
- Lack of Qualification or Specialized Knowledge
The H-1B visa possesses higher education requirements for qualification of similarly employed workers with an average wage paid over a period. However, some are higher than others, and you may not have the specialized knowledge required for your new position or expected from a particular employer. Lack of qualification shows there is no legitimate employer employee relationship or adequate knowledge of the third party worksite.
- No Proof of Employee and Employer Relationship
If there is no evidence of an existing relationship between the employee and employer, your H-1B transfer can be denied. An employer must show that the H-1B employee will be properly controlled and supervised.
If you do get your H-1B transfer denied, you can return to your old employment, appeal the denial, or seek other new employment opportunities before your visa expires.
H-1B Transfer Denial 101 – What Is the Best Way to Fix It?
There is no guaranteed way to fix your denial except you have evidence or documents that can be used to combat your grounds for denial. This can be in qualifications like a bachelor’s degree, evidence of employer and employee relationship, or proof of wrong filling or incomplete documentation. Alternatively, you can get an attorney and file a legal motion copying the right authorities like the national prevailing wage center.
If you have no grounds to file a legal motion or seek an appeal, you can fix the situation by searching for other employment avenues that accept a bachelor’s degree, re-evaluating your job prospects, or returning to old employment. You can also get an employment eligibility verification form for proper verification of identity and employment authorization.
Can H1B Transfer Be Denied for Foreign Workers?
Yes, an H-1B transfer can be denied for foreign workers or individuals who don’t engage in specialty occupation. If you don’t meet the documentation, can’t pay prevailing wage, don’t engage in specialty occupation, qualification, and job requirements, you can be denied a transfer.
H-1B Transfer Denied Example
A typical example of an H-1B transfer denial can come from incorrect fee payments. USCIS fees constantly change due to new regulations and can be confusing. In such a situation, you will receive a clear letter of notification stating your transfer denial and the reasons surrounding it.
In What Way Can We Be of Help?
Have you tried all you can and every time you keep having your H1B transfer request denied? Then, you need the services of experienced immigration attorneys available in Herman Legal Group. With over 26 years of experience, we can walk you through the process for better facilitation of the H1B transfer process.
You schedule a consultation to take place on Facetime, Google Meet, Skype, or Zoom. Alternatively, you can call us via +1-216-696-6170 or schedule an appointment with Richard Herman by filling the online form.
Having your H-1B transfer denied isn’t the end of your employment journey. Keep all the requirements mentioned in mind when applying. If you’ve already received an H1B denial, it would be best to get an immigration attorney to help you appeal your case. Remember that you can always make another job application when the opportunity arises.
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