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The H-1B visa is a highly sought-after immigration path so as you can imagine a high percentage results in denials. There are a number of reasons a denial may be issued related to either the position, beneficiary or the petitioning employer. In this post we’ll explore the top reasons for an H-1B denial, so you can preemptively prepare. If you have already received a denial letter, this article explains various options you can explore to overcome the denial.
There are a number of reasons an H-1B denial can be issued. It’s important to mention that there are instances where USCIS could approve your H-1B visa petition but deny your visa. The DOS consulate or embassy has the ultimate decision to approve the visa. Reasons could include lack of eligibility, provision of false information or documentation, security apprehensions, insufficient ties to the home country, and an inability to exhibit non-immigrant intent. Even if the visa obtains approval, entry into the United States can still be denied by a U.S. Customs and Border Protection (CBP) officer at the port of entry due to inadequate documentation, security concerns, or other factors.
Check out our Predictions for the H-1B Lottery.
An H-1B visa denial can occur at any of the three main application process stages, which are:
The rejection rate for H-1B visas in 2023 was 3.5%. Typically, one of the main reasons for the variation in rejection rates is due to the changes in the U.S. administration. With every new president and their administration, there are usually new perspectives on immigration that lead to changes in policies. Over the past decade, the average H-1B rejection rate has been 17.9%.
Below is a detailed breakdown of the denial rates based on each year.
A successful application involves compliance with H-1B visa requirements by the employer and the beneficiary employee. Therefore, errors or ineligibility from either party in any of the above three stages can lead to denial. The following are some of the top reasons:
Each of the above reasons for H-1B visa denial is explained in more detail below.
In order to apply for an H-1B visa, the petitioner must demonstrate that the position being applied for meets the criteria of a specialty occupation. To achieve this, the job description must fulfill one of the four requirements outlined by the USCIS. Failure to meet this requirement may result in a denial of the application.
It’s important to understand that USCIS view of what positions require a Bachelor’s degree is not always aligned with what the normal labor market requires. One must keep in mind that there must be sufficient connection between the job duties and the degree in a specialty field.
Your prospective employer must prove that you have the required education credentials for the job. Your academic qualifications and the field of study must specifically match the job requirements. If your degree is in an unrelated or loosely related field, but you have years of work experience in a related field, your employer will need to convince the USCIS that the years of experience plus the education is equivalent to the required qualifications for the job position.
It is also essential for the employer to provide a list of responsibilities, roles, as well as educational and experiential requirements to perform the job. There must be a link between the job description and the requirements for the position.
In some cases, degrees from universities outside the U.S. may not be equivalent to a U.S. degree so it is important that any degree has been properly and recently evaluated.
If an H-1B beneficiary is going to work at a third-party worksite, the petitioner must prove that the employee’s duty will be in a specialized role from the beginning to the end of the visa’s validity period. This may be established in part by providing sufficient client agreements including an itinerary that will detail his or her day-to-day tasks at the third-party site.
USCIS has thankfully understood remote and work from home worksites are far more common and aligned with the H-1B requirements. So it is important to clearly distinguish the physical worksites versus virtual worksites.
Difficulty maintaining your status is an issue for visa applications in general. If you (the beneficiary) have a previous visa that you didn’t maintain properly or there is any questionable activity in your current or previous stay in the United States, the petition could be outright denied. This can be prevented or resolved by providing copies of previous I-94 cards, employment verification letters, pay stubs, I-979 approval notices, travel itineraries, and other related documents. Simply put, it must be clear that there has been a clear continuity of visa status from the initial entry to the visa status at time of filing. Any break can not only mean a denial but also a finding that one has accrued unlawful status which can mean a bar towards U.S. presence for years.
Failure to establish a legitimate employer-employee relationship is another top reason for H-1B visa denial. H-1B petitioning employers are required to demonstrate to immigration officers that they will maintain the right to control their H-1B beneficiary’s work throughout the period of employment.
This is even more essential if your primary place of duty will be at a third-party worksite. Payroll by itself is insufficient. Failure to present documents to prove this, such as an employment contract agreement detailing the terms and conditions of the job offer, may lead to H-1B application denial.
The employer-employee relationship requirement is one of the main reasons why self-petitioning does not work for the H-1B. If you would like to be sponsored by your own business, you will need to set up a third party (such as a board of directors or chief executives) that has the ability to hire and fire you. Only this entity can sponsor you for an H-1B visa and you will need to show that an employer-employee relationship exists.
There are several factors that can make a visa beneficiary inadmissible to the United States. If the consular officers suspect that your presence in the United States will pose a threat to the safety or health of others, your visa application may be denied.
Inadmissibility in the context of immigration applies to both applicants who are outside the U.S. and those already in the U.S. This means that your H-1B visa application could be denied based on inadmissibility regardless of your location. The following are some of the significant factors that can make you inadmissible:
Note: Some of these inadmissibility factors can be waived if you work alongside an immigration attorney and provide enough supporting evidence.
This is one of the main aspects of the Dept. of Labor’s (DOL) LCA processing. The H-1B petitioning employer must be able to convince the DOL that he or she is willing and capable of paying the beneficiary the prevailing wage for the job position. The prevailing wage, according to DOL definition, is the “average wage paid to similarly employed workers in a specific occupation in the area of intended employment.”
If the employer fails to prove his or her willingness and capability as required by the DOL, then the LCA, and thereby the H-1B petition, will likely be denied. To be sure of the current prevailing wage for a particular position, a petitioning employer can check the Online Wage Library on the Foreign Labor Certification Data Center website.
Though the wage data is public, its application is not as straightforward as there must be sufficient alignment between the position, the wage and the classification approved on the LCA. Regrettably, even if the LCA is certified, the H-1B can still be denied if USCIS deems that the LCA does not match the position described in the H-1B. An error which will only arise after time and money have already been spent.
In some cases, before an H-1B visa denial, the immigration agency will provide an opportunity for petitioners to correct an issue with their applications. This warning usually comes in the form of a request for evidence (RFE), with a deadline by which the required item must be submitted. If your employer does not respond to the RFE by the deadline, a denial will be issued. It is regrettable how often a deadline is technically missed especially since the deadline is the date the response must be physically received by USCIS and not just postmarked.
This is another reason H-1B denials occur based on a technicality. An issue with the filing fee may arise if the petitioner does not submit the fee along with the petition or the fee submitted is insufficient. H-1B fees vary widely depending on certain factors such as opting for the premium processing service as well as the number of employees under the petitioner’s company. You must understand the exact fee required of you and ensure you pay accordingly. Currently, the H-1B visa filing fees are as follows:
Despite the high rate of H-1B visa application denials, both the petitioner and the beneficiary can boost their approval chances by being very thorough when filing their petition. Here are a few tips:
Before filing your petition, you need to go through the requirements for the particular position you are applying for and ensure you have all of the necessary documents ready.
After filling out each form, double-check and ensure that each input line adheres with the instructions. Also, you need to be sure that all the forms are signed before submission—the immigration agency will not process an unsigned petition.
After a thorough review of your documents, you need to ensure that they are sent to the correct service center along with the appropriate filing fees. The best way to ensure this is to always use an officially bonded delivery service such as USPS, UPS, or FedEx. Never deliver your documents by hand or use unbonded delivery services.
Some aspects of the H-1B application require clear explanations in order to back up certain supporting evidence. You need to ensure you give convincing points that will justify your claims.
This is your best bet for improving your chances of H-1B approval. An experienced H-1B immigration lawyer will help you file your petition in accordance with the USCIS requirements and ensure you avoid the pitfalls that lead to H-1B visa denial.
There are several options for you to explore if your H-1B petition is denied. The denial letter should contain the reason for why the petition is denied. This will help determine the next step to take.
Firstly, there is a difference between “rejection” and “denial” in the immigration world. A rejection simply means that there was an error with your filing or fee payment that can be corrected. A denial occurs when either you or your employer are not considered qualified for an H-1B.
If the reasons for denial or rejection can be corrected in time, your employer can file a new I-129 and ensure the previous mistake or issue is avoided completely. For instance, if your application was denied because your employer forgot to include an important document, you will need to ensure that the document is included this time around before submitting the petition.
Another factor will be your location, whether you are in the United States or you are applying from outside the U.S.
As stated above, if the reason for the rejection is something that can be rectified, you can quickly do so after receiving the denial notice by filing another I-129. However, this must be done quickly as the applicable filing window may close.
For instance, the annual H-1B lottery has locked filing windows due to the annual limit on the number of H-1B visas that can be issued in a year. If the limit has not been reached, your case may still be adjudicated after correcting the error and resubmitting a new petition. However, if the limit has been reached, your option will be to wait until the following year. But if you are dedicated on entering the U.S. so soon and cannot afford to wait, or the reason given for the denial is not as easily fixed, you may explore other nonimmigrant visa options. You can consult an expert immigration attorney to guide you on the best visa option.
If you are already in the United States on legal status, your employer may also file a new I-129 petition on your behalf, provided the initial rejection or denial issues can be corrected. However, if the deficiencies are not easily corrected, you may want to consider extending your current status or changing to another status. To achieve this, your employer will also need to file another I-129 petition requesting for either a change to a new status or an extension of your current status.
If your I-129 petition is denied by the USCIS based on legal or factual grounds, your employer may be able to file an appeal by submitting an I-290B along with additional supporting evidence. However, many (if not all) H-1B denial notices state that an appeal is not possible. If you are an exception, the appeal must be filed not later than 30 days after receiving the denial notice. However, keep in mind that a visa denial appeal can take you several months or years to process.
In some cases, filing a new petition may be advantageous to avoid the uncertain processing times of pursuing an appeal that may not guarantee a favorable end. To be sure of the best option for you, you will need to speak with your immigration lawyer as soon as possible within the applicable filing window.
H-1B visa rejection rates fluctuate dramatically year over year. While sometimes we see periods of lower denial rates, it does not necessarily mean that everyone has a better chance of receiving visa approval. The USCIS reviews each application individually, regardless of overall success or rejection rates. This is why it is essential to seek legal help from an experienced H-1B visa attorney.
VisaNation Law Group has a team of highly experienced H-1B attorneys who will help you file your petition and ensure all pitfalls that could lead to denial are avoided. Also, if you have already received a denial notice, their attorneys can help you overcome the decision. You can get in touch and schedule a consultation with one of their H-1B lawyers today by filling out this contact form.
