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April 6, 2022April 6, 2022April 6, 2022

How To Appeal an H-1B Visa Rejection

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 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.

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Immigration Law

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
  • Licenses
  • 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.

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    How To Appeal An H-1B Visa Rejection
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    How To Appeal An H-1B Visa Rejection
    Get the talent you need at your organization by avoiding or addressing H-1B denials. Farmer Law can help with your visa petitions.
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