H-1B visa denial rates for immigration applications have skyrocketed in the past decade, making it harder for foreign applicants and U.S. employers to get this temporary work visa classification.
Causes for denial can be tied to either the foreign national or the petitioning employer. It is important to know the major reasons for H-1B visa denial to avoid these common mistakes.
This article provides options to explore if you have already received a denial letter. It focuses on how to file an appeal and other routes you can take to prevent H-1B denial.
H-1B Visa Overview
The H-1B visa status is a non-immigrant employment visa for foreign nationals who qualify for academic or specialty positions in the U.S. It has an annual quota of 65,000 for applicants with at least a bachelor’s degree every year. However, there are an additional 20,000 visas for qualified applicants with an advanced degree.
The H-1B visa can be applied for under any of these three subcategories:
- H-1B1: Specialty Occupations;
- H-1B2: Department of Defense (DOD) Cooperative Research and Development Project
- H-1B3: Fashion Models
Denial Stages of the H-1B Visa
An H-1B visa application can be denied only at any of the three major application process stages, and they are:
Stage 1: Getting a Labor Condition Application from the U.S. Department of Labor
Stage 2: Filing an I-129 Petition for Nonimmigrant Worker with the United States Citizenship and ices.
Stage 3: Going through the Non-immigrant Visa Application process with the Department of Homeland Security.
Reasons for H-1B Visa Denial?
The USCIS denies H-1-B Visa applications for several reasons. Since the H-1B visa application involves both the employer and the beneficiary employee, mistakes or ineligibility from either party in the three main stages can cause a denial. Below are some of the top reasons for H-1B visa denial.
1#Not Presenting Qualified Academic Documents
Your employer must show that you have the needed academic qualifications. Your credentials and the field of study must fit the job requirements. However, if your degree is in an unrelated or loosely related field, you can only get the H-1B status if you have years of work experience in a related field.
For an H-1B beneficiary to work at a third-party worksite, the employer must show that the employee’s duty will be specialized from the start to finish the visa’s validity period. This can be established by providing a schedule that will detail their day-to-day activities at the third-party site. If this can’t be proven, your H-1B application process will be denied and terminated.
Inability to establish a solid employer-employee relationship is a major reason for H-1B visa denial. H-1B employers seeking employees must convince immigration officials that they can maintain the right relationship to control their H-1B beneficiary’s work through employment.
This is even more imperative if your primary place of occupation will be at a third-party worksite. Failure to present documents to prove this may lead to H-1B application denial.
4#Maintenance of Status
Difficulty maintaining your status is a major issue for visa applications. If the beneficiary has a previous visa that they didn’t use properly or there is a questionable activity in your current stay in the United States, the petition could be denied. However, this can be prevented by providing employment verification letters, pay stubs, travel itineraries, and other related documents.
5#Specialty Occupation Requirements
An H-1B visa petitioner must show that the position meets the criterion for a specialty occupation. The job option must meet one of the four requirements concerning specialized knowledge stated by the USCIS. If the USCIS can’t establish this through the petition filed by the employer, your application can be denied.
6#Prevailing Wage Issues
This is another major aspect of LCA processing. The H-1B petitioning employer must convince the DOL that they are capable of paying the beneficiary the prevailing wage for the job position.
If the U.S. employer fails to prove this as required by the DOL, the H-1B petition will be denied. To get information on the current prevailing wage for a position, an employer can check the Online Wage Library on the Foreign Labor Certification Data Center website.
7#Failed Response to a Request for Evidence Notice
Before an H-1B visa denial notice is issued, the immigration agency will likely issue a warning for petitioners to correct an error with their applications. This warning mainly comes from a request for evidence (RFE), with a deadline by which the required item must be submitted. Your visa will be denied if your petitioner fails to respond to the RFE before the deadline.
This is another major reason for H-1B denials. An error with the filing fee as prescribed in the administrative procedure act may arise if the petitioner does not submit the fee along with the petition or pays the wrong fees. H-1B fees vary depending on factors and are prone to updates or changes. You must understand the proper filing fee required and ensure accurate payment.
How to Limit an H-1B Visa Denial?
Despite the high rate of H-1B visa application denials, both the employer and the beneficiary can increase their approval chances by being very thorough during petition filing. Here are a few tips:
1#Thoroughly Check Your Documents and Forms
Before filing your petition, you should go through the requirements for the particular position and ensure you have all of the additional documentation ready. This can help prevent incorrect applications. After filling out each form, cross-check and ensure that each input corresponds to the instructions. Also, you need to ensure all forms are signed before submission — the immigration agency cannot process an unsigned petition.
2#Work with Immigration Attorneys
This is the best way of improving your chances of H-1B approval. An experienced immigration attorney will help you file your petition following the USCIS requirements and ensure you avoid the setbacks that cause H-1B visa denial.
3#Avoid Improper Delivery
You need to ensure that your documents are sent to the correct service center with the appropriate filing fees. Always use an officially bonded delivery service such as USPS or FedEx.
What to Do After Petition Denial or Rejection?
There are some options for you to explore after the H-1B petition denial. Your denial letter usually contains reasons for the denial, determining the appropriate steps to take.
There is a difference between rejection and denial. A rejection means an error with your filing or fee payment that can be resolved. Denial is a complete dismissal of your petition.
If rejection occurs, your employer can file a new I-129 to rectify the previous mistake. However, if your H1B petition is rejected, you’ll need to file an AAO appeal.
How to Appeal the Decision?
If the USCIS denies your petition, your employer may be able to file an appeal by submitting an I-290B form with convincing and supporting evidence. However, most H1B denial notices cases state that an appeal is impossible.
If that’s not the case on your denial letter, the appeal must be filed within 30 days after the denial notice issued is received. However, a visa denial appeal or visa petition can take several months to process.
It is advisable to file a new petition than to spend time pursuing an appeal that goes either way. To be sure of your best course of action, speak with a legal authority familiar with immigration appeals.
Refiling vs. Appeal
With the new USCIS trend of denying H1B at alarming rates, you need a concrete basis to file an appeal or a motion. However, the chances of approval of most appeals are not as good as if you refile the H1B application rather than an appeal.
In recent cases, when the USCIS rejects a petition, refiling an H1B application processed by a different service center has resulted in approval. This occurs even though most of the case details remain the same.
Can a Federal District Court Case Help Change H1B Denial?
In several precedent decisions, a federal district court case has been used to get approval when USCIS cannot prove the basis of denial. The federal lawsuit has a better chance of reversing the H1B denial as a judge is not part of the same organization as USCIS or DHS. The judge is bound to look at the case more objectively.
After you file in the federal court system, possible litigation will happen after the federal court sends a summons to USCIS based on precedent decisions, to which they have 60 days to respond. The appellate review you get is what determines the response the citizenship and immigration services will give.
Does Filing a Court Case Against USCIS Complicate Future H1B Extension?
The federal court case filing against USCIS does not affect your future H1B petitions or extensions in the USA. Under U.S. law, you have a right to sue the government.
Questions and Answers: Immigration Appeals and Motions
Here are some frequently asked questions on H1B denial and their answers.
Q: What can I do about an unfavorable decision regarding AAO issued by the USCIS office?
A: You may be eligible to file an AAO appeal or a motion to change the unfavorable decision.
Q: What is an appeal?
A: An appeal is a request to review a decision based on the existence of new facts or a perceived misinterpretation of the law.
Q: What happens after filing an appeal to the AAO?
A: The USCIS office that made the original decision will review the appeal and then, if convincing, grant the immigration benefit request. If not, it can modify the immigration benefits presented.
Appeal H-1B Denial, Refile, or Federal Court Case? Stay in the U.S. While MTR is Pending?
If you are already in the U.S. on legal status, your employer can file a new I-129 petition on your behalf, provided the rejection issues can be rectified. However, if the issues are not easily corrected, you can extend your current status or change to another status.
Your employer must also file another I-129 petition asking for either a change to a new status or the extension of your current status.
If the filling date or filing period falls after the total petitions for the fiscal year are exhausted, you would have to wait for the next year.
H-1B Visas: Appeals and Motions
Form I-290B, for Notice of Appeal or Motion, can be used to file either in the administrative appeals office or any other relevant office:
- An appeal with the Administrative Appeals Office (AAO) (get details from the AAO website)
- A motion with the USCIS office that issued the decision in your case
- Certain appeals of the denial of an Immigration and Customs Enforcement (ICE), Form I-17, and the Petition for Approval of School for Attendance by Nonimmigrant Student.
Generally, appeals and motions are used in the case of H-1B visa petition denials to overturn any visa petitions decision taken by immigration officials.
Alternatives to Appeal Your H1B Denial Outside the Administrative Appeals Office
There are two major alternatives to appeal your H-1B denial with an underlying petition, and they are:
- Motion to reconsider
- Motion to reopen
Either of these alternatives will help you request expedited processing which facilitates the appeal of an unfavorable AAO decision. However, an initial field review of facts previously submitted is essential before you file motions. This review can be done in the USCIS field office or other departments that deal with immigration matters.
No New Evidence: Appeal vs. Motion to Reconsider
A motion to reconsider involves persuading the immigration officials who denied your H1B petition that they were wrong.
This will rarely be a successful course of action with the usual tendency to avoid errors. It may be successful if you have some new argument or authority to provide additional evidence that was not earlier presented.
New Evidence: A Motion to Reopen
The motion to reopen is usually the most common response to a denied H1B petition or an incorrect application on a complete case record.
It involves providing the USCIS with the documentary evidence and any supplemental evidence that your petition was said to be lacking, which is the best strategy when applicable. However, most of the additional evidence submitted for a motion to reopen must not have been available when the initial petition was filed and you must provide a supplemental argument and a written statement attached to it.
Please note that you can not file a motion to reopen or an appeal on a final decision during any legal holiday.
What Does the Appeals and Motions Process with USCIS and AAO Seem Like?
The appeals and motions process with the USCIS and AAO may require a petitioner to submit a Notice of Appeal or Motion (Form I-290B). The AAO determines appeal before it based on the filing date before deciding on the favorable action to take. With the appropriate filing fee or a fee waiver request, the motion process involves:
- An appeal via a motion with the Administrative Appeals Office (AAO);
- A motion to reconsider a USCIS decision.
- A motion to reopen a USCIS decision.
Get the Services of Herman Legal Group
Whether you are looking to file an appeal for an H1B denial or want to sort out any other issues relating to immigration or previously unavailable data, your best bet will be to hire immigration attorneys. Attorneys at Herman Legal Group have been handling immigration matters for over 26 years, and they can help you get it all sorted.
You can schedule a consultation today that can be held in the office or via other comfortable platforms like Zoom, Google Meet, Skype, or Facetime by calling +1-800-808-4013 or +1-216-696-6170. If you want to speak to Richard Herman who is a veteran immigration advocate, you can fill this online form.
Appeals to the USCIS and administrative appeals office must be strategically prepared with convincing evidence to have any chance of reversal. You must understand the various immigration categories that exist, why AAO approves or denials an application, and all other AAO issues.
This is not the best time to seek free consultation; getting an attorney to help you file a motion will help you get expedited review and a decision date that can go in your favor. An attorney will also help you get to the attorney general if you want to appeal directly or take an agency action.