In the first two quarters of 2020, denial rates for H-1B visas were 28.6%. Although that number dropped to 7.1% in the first two quarters of 2021, the overall trend since 2018 has been a rising number of H-1B visa rejection rates. This is a concern for both visa applicants and for the employers who use the program to attract top talent to the United States.
This begs the question: Why might an H-1B visa get denied, and what can the applicant do if they are rejected?
What is the H-1B visa and why might someone get denied?
The H-1B visa program is designed for specialty occupations, including those requiring at least a bachelor’s degree (or its equivalent) and specialized knowledge, as well as for Department of Defense (DOD) development project workers and researchers. Prominent fashion models can also apply for the non-immigrant H-1B visa. While all these types of workers can apply, there are many reasons why a petition may be denied as seen below.
- The employer may not have adequately shown that they are an established U.S. company with the resources to pay for an H-1B worker.
- The employer may be petitioning for a job that doesn’t normally require specialty knowledge, a bachelor’s, or an advanced degree.
- The employer may be seeking an H-1B worker for a position where the employer-employee relationship is vague. The USCIS will generally deny a petition if it appears the employer will subcontract the worker.
- The employee may be inadmissible to the U.S. or may have previously not been able to maintain their visa status.
- Documents and forms may have been sent to the incorrect service center or didn’t include all necessary paperwork and fees.
- The USCIS may allege a job description and duties do not qualify for an HB-1 visa.
- The employee may be working remotely or at a third-party site that may cause the USCIS to suspect the work is contract-based.
- The employer may not have submitted a clear description of the job and its duties, with a description of why an H-1B candidate qualifies for the job.
- The employee may not have offered adequate proof of their qualifications for a specialty occupation.
Usually, petitioners have a chance to submit additional documentation before a visa is denied outright. In many cases, employers will receive a request for evidence (RFE), asking for the specific documentation or evidence needed. The RFE will include a deadline for response. If the requested additional documentation is not sent by the deadline, the H-1B visa application will be denied. Instead of an RFE, the beneficiary or employee may sometimes receive a 221(g) request after their consular interview, which outlines which information or documentation is needed to avoid denial.
What options exist in the case of a visa denial?
There are two options if an employer or employee does not meet the requirements for the visa: an H-1B visa rejection or a denial. A denial means that the employee or the employer have been found ineligible for the visa. A rejection means that there was an error with the application. The denial letter explaining the decision will explain which of these issues occurred and will provide reasons why a visa was not granted.
If you have been rejected for an H-1B visa, you may be able to address the issue by submitting the correct documents, filing fees, or by offering supplementary paperwork or explanations if you have received an RFE. Or, you can file Form I-129 with the USCIS again on behalf of an employee already lawfully in the United States, this time ensuring that the reasons for rejection are addressed. If an employee is outside the U.S., he or she will need to file a new Form I-129 themselves.
What’s the appeals process like?
Some denial notices indicate that an appeal is not possible. If a denial letter does not state this, the employer can submit Form I-290B, with documentation, within 30 days of the denial. The type of documentation you will need will depend on why the application was denied, but in general, you may need to submit a range of business documents such as:
- Tax identification number
- Tax returns
- Financial statements
- Contract agreements
- Job descriptions
- Proof of education or professional experience
- Purchase orders
The appeals process can take months or years, which is why many employers decide to simply begin the process again, with Form I-129, using what they have learned to submit a better application. The challenge is that there is a cap of 65,000 H-1B visas per year, although not every applicant is subject to the cap. If there are not enough visas available after the new form has been submitted, the employer and employee may be waiting until the following year for a visa.
How can Farmer Law help?
If you’re an employer in need of an H-1B employee, you likely have a pressing need for someone with specialized knowledge — skills that may not be available in the local candidate pool. Any delays in the visa process could mean lost revenue, interruptions in operations or projects, and lost opportunity.
Farmer Law has a team of immigration attorneys who are here to help. Our legal team can help you put together a strong H-1B visa application the first time, reducing your risk of an H-1B visa denial. We can also help you find a more appropriate visa if another visa program would meet your needs more fully. Our team can help with the application, using our experience with immigration laws to save you time and frustration.
If you have already received an H-1B visa denial, our law team can help with an H-1B appeal or with submitting a new application. We understand a denial can be frustrating and we’ll work to help you recruit the workers you need.
Whatever your H-1B situation, contact Farmer Law today for a consultation with an attorney who can help with applications and appeals.