Key Takeaways:
- H-1B denials often result from simple paperwork errors or failing to prove a job is a specialty occupation.
- After a rejection, a petitioner has three options to challenge the denial: appeal, file a motion, or refile.
- An experienced attorney is crucial for choosing the best path forward.
As a recognized and established immigration law firm, Luo & Associates understands how devastating an H-1B denial can be for both an employer and employee. Unfortunately, the H-1B rejection rate fluctuates from year to year and with ever-evolving administration policies, so there is really no good way to calculate odds.
That said, with a 99% success rate, the attorneys at Luo & Associates have a deep understanding of the entire H-1B process. This guide explains why an H-1B visa might get denied and the next steps you can take.
Common Reasons Why an H-1B Visa Gets Rejected
You (as the beneficiary) will not receive a denial letter from US Citizenship and Immigration Services (USCIS) directly. The original petitioner (your employer) will receive the official letter explaining the reasons behind the H-1B visa denial. Please keep in mind that denials are not a direct reflection of you personally. While it may relate to specific qualifications or history, several factors contribute to the decision.
Failure To Establish a Specialty Occupation
One of the most common causes for a denial occurs when an employer doesn’t establish the requirements for a specialty occupation. To qualify for an H-1B visa, a job must require a minimum of a bachelor’s degree or its equivalent in a specialized field. Failure to prove this prerequisite will lead to a denial.
Issues With the Employer-Employee Relationship
Another reason why an H-1B visa gets rejected is an issue with the employer-employee relationship. It’s an especially common problem for consulting or staffing companies that place workers at third-party work sites. See, part of the employer eligibility requirements for an H-1B visa is demonstrating sufficient control over the beneficiary’s work. A petitioner can use contracts, work assignments, and client letters to prove such a relationship exists.
Beneficiary Qualifications
Now, this is where a denial can start to feel personal (it’s not a reflection of personal character). A common issue affecting the H-1B rejection rate is beneficiary-related. While this can relate to past visa or immigration violations, criminal history, or other risks, it likely relates to academic qualifications or incomplete or inaccurate information.
These hiccups often occur because the petitioner didn’t adequately defend something that can be seen as incongruous. For example, maybe the beneficiary has a degree in an unrelated field, but has sufficient experience equivalent to the education requirement. The petitioner must provide evidence of that experience.
Inconsistent or Missing Documents
Often, the most common reason why an H-1B visa gets rejected is likely technical, meaning the petitioner provided unsigned forms, didn’t send the documents to the right location, or failed to pay filing fees. Any number of paperwork missteps can result in a rejection. That’s why working with qualified and experienced immigration attorneys is a must. These professionals make a living by making sure nothing slips through the cracks.
Options After an H-1B Denial
Any number of factors can result in an H-1B denial, but it’s important not to get too hung up on the denial and instead put your effort into challenging or seeking a new decision. Your petitioner has three options moving forward: appeal, file a motion, or refile. The best option depends on the situation.
Option 1: Filing an Appeal
Most people think the best course of action when an H-1B visa gets rejected is to file an appeal. While logical, appeals have limitations and low success rates. Also, appeals through the Administrative Appeals Office (AAO) are exceptionally slow processes that won’t work for most cap-subject cases. Ultimately, appeals are best reserved for cases where there is a clear error or law.
Option 2: Filing a Motion
It’s important to note that the H-1B denial rate will not directly affect the outcome of motions or appeals; it does, however, stand as a representation of the overall USCIS adjudication process. In other words, it can speak to the difficulty of a successful denial reversal.
With that in mind, motions may be a necessary or more viable option in specific situations. For instance, a motion to reopen (one of two options) should be filed when a petitioner wants to provide new, relevant evidence. Alternatively, a motion to reconsider is best when the denial was based on an incorrect application of law or policy.
Option 3: Refiling a New Petition
In most cases, when an H-1B visa gets denied and refiling is possible it’s best to refile. See, most denials stem from minor, correctable errors or inadequate evidence. Refiling is often faster and more straightforward than the other available methods. Also, refiling allows the petitioner to present a new, stronger case. However, for petitions subject to the H-1B cap, refiling is not an immediate option. They must wait for the next lottery.
Expertise on Your Side
Regardless of why an H-1B visa gets denied or rejected, post-denial actions are complex, and choosing the right pathway after rejection requires a sound legal strategy. An experienced immigration law firm can analyze your denial and recommend the best option. Luo & Associates has over a decade of experience with a 99% approval rating for H-1B visas. Contact our New York office for a free consultation.