H-1B Denial: Important things to know

The H-1B visa is one of the many U.S. issued work visas that allows the U.S. employers to temporarily employ (sponsor) foreign national workers in specialty occupations. A specialty occupation requires the application of specialized knowledge and a minimum of a bachelor's degree or the equivalent of work experience. The duration of stay for an H-1B employee is six years. The visa is generally given out for a period of three years after which the employer needs to reapply for an extension.

There are three ways to file an H-1B petition - New H-1B (lottery), Transfer H-1B (move to a new employer/client), and H-1B renewal/extension. Apart from an added step to register for a lottery for getting a new H-1B, all H-1B cases go through essentially the same steps and have to meet the same criteria.

Difference between an H-1B Rejection and an H-1B Denial

Though the terms might seem interchangeable to you, there is a vital difference between a rejection and a denial.

An application may be rejected for the lack of required documents or fees that need to be submitted with the petition or if the petition is sent to the wrong USCIS service center. With a rejection, the error is merely technical and can usually be corrected. You can refile your application with the correct documents, fees and service center.

In case of a denial, however, the officer does not believe that your case merits the H-1B visa and might issue a Request for Further Evidence (RFE) or Notice of Intend to Deny (NOID). In either of these cases, your legal counsel can best draw out the path to the next steps.

Reasons for H-1B denial

Let's look at some of the top reasons that might result in a denial:

(1) Petitioner's Inability to sponsor

The employer is the petitioner in the H-1B petition and has to prove the following -

• Employer is an established entity, actively operating in the U.S.

• The position is a speciality occupation, which requires specialized knowledge or at least a bachelor's degree

• Employer's ability to hire, pay and provide speciality occupation work to the employee

Work with your legal counsel to determine the tools and the list of documents that you could use to establish sufficient evidence for the above requirements.

(2) Employee's lack of Specialized Knowledge

After you prove that the position is a speciality occupation, you now have to prove that the speciality knowledge required to do the job is directly related to employee's or candidate's academic or work experience. You cannot make the case, for example, for someone with an MBA in marketing to work as a data analyst.

(3) Insufficient Proof of Employer/Employee Relationship

For a direct hire employee, the petitioner (employer) needs to prove an established relationship with the employee by showing that the employee would be managed by them and will work at one of the company's worksites. In case of a client hire, the petitioner (staffing company), in addition to showing an employee/employer relationship, have to also show a documented relationship with the client that they are filling the position for.

(4) Failing to pay Prevailing Wage

The prevailing wage rate is the "average wage paid to similarly employed workers in a specific occupation in the area of intended employment". The Department of Labor asks employers to either match or pay over the suggested prevailing wage. If an employer can't or isn't willing to pay the prevailing wage, the H-1B case may be denied.

(5) Prior Immigration Violations

If the employer or the employee has violated immigration laws at any stage, the H-1B petition could be denied. Violations for employees include, overstaying a visa, not maintaining the requisite H-1B qualifications for past H-1B's, or committing a crime while in the U.S.. Employers could violate immigration rules by not fulfilling their responsibilities.

What to do if the H-1B is Denied

What steps you can take after the denial decision depends on why your case was denied. You might be able to file a different petition altogether or fix issues with your current application. Your denial letter may contain reasons that may make appealing the H-1B petition difficult. Your legal counsel can suggest the best way forward if you are facing a denial.

Can an employee continue to work after H-1B Denial?

This depends on employee's current status:

OPT → New H-1B* - According to the guidance issued by the U.S. Immigration and Customs Enforcement (ICE), if an employee's petition is denied, or if the petition was withdrawn by the employer, the employee (student on OPT) normally would have ten days of work authorization and 60 days of grace period after the date of the decision. However, USCIS has been silent on the issue of whether a student in this situation would be entitled to ten days of work authorization following the denial. Therefore, it is possible that working during that ten-day period could present some level of risk.

H-1B → H-1B Extension* - Generally speaking, an H1B extension or change of employer denial would have no impact on the validity of an existing H1B petition. So, ordinarily, a person in this situation may continue to work pursuant to the existing H1B petition until it expires.

H-1B → H-1B Transfer - An employee may start working for the new employer as soon as the petition is filed with the USCIS & receipt number is obtained. The employee may also work for the employer the whole time while the petition is under review and until a final decision is made. If the H-1B transfer is denied, the employee must stop working for the new employer as soon as notification of denial is received. As a result of the denial, the employee no longer has a valid H-1B status to be lawfully employed. If they continue working, they may run the risk of being “out of status“. 

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*Murthy Law Firm

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.