Logo of Techfetch H1B services
All You Need to Know About H1B Rejection and Denial
March 25, 2022
9 mins
Vector illustration of H-1b Visa USA banner depicting visa rejection status. Background with American flag and text "H1-B - Rejected ".

Here's a gist of what you can take away from this article:

  1. H1B denial: An overview
  2. When or why you may get a denial
  3. What to do in case of an H1B visa denial

The H1B visa is a non-immigrant visa awarded to foreign nationals who qualify for specialty occupations in the U.S. There is an annual quota of 65,000 visas for applicants with a bachelor's degree or higher qualification and 20,000 visas for advanced degree holders (master's degree or higher).

According to U.S. law, applicants must face an H1B visa interview with a consulate officer at a U.S. Embassy or Consulate. Applications are approved, rejected, or denied at this stage after all the relevant information is carefully reviewed based on standards set by U.S. law.

Now, we need to distinguish between H1B 'rejections' and H1B 'denials'.

When an application is rejected, there is an error in the submitted documentation or the amount paid as filing fees. These cases can generally be corrected.

On the other hand, a denial means that either the employer or the worker are deemed 'unqualified' for an H1B visa.

Before we start reading in detail about the reasons for denial, let us know about the visa interview process.

H1B Denial: The Various Application Stages

There are three points at which your H1B visa application can be rejected:

  1. Obtaining a Labor Condition Application from the U.S. Department of Labor (DOL)
  2. Filing the I-129 Petition for Non-Immigrant Worker with the USCIS (Citizenship and Immigration Services)
  3. Filing the Non-Immigrant Visa Application with the Department of State (DOS).
According to the USCIS website, the H1B visa rejection rate fell from 24% in the fiscal year (F.Y.) 2018 to 21% in 2019, 13% in F.Y. 2020, and an astonishing 4% in F.Y. 2021, based on a new report from the NFAP (National Foundation for American Policy).

U.S. immigration authorities usually issue plenty of advance warnings and opportunities to correct discrepancies before proclaiming a denial. These might take the form of a Request For Evidence (RFE) from the USCIS in response to the H1B petition request your employer filed. You may have to provide additional documents or draft a response letter to a questionnaire. The RFE always carried a deadline. Failure to provide a satisfactory response within the stipulated deadline will result in an H1B visa denial.

Here are some H1B visa rejection reasons:

1. Specialty Occupation: If the USCIS receives an application for fulfilling a job requirement that does not qualify as a 'specialty occupation', the request is most often refused after clarification.

2. Employer-employee relationship: If there is no clear evidence of a legitimate employer-employee relationship, the visa application can be denied. This is one of the most common reasons for the denial.

3. Wage Issues
The U.S. Department of Labor (DOL) will need convincing proof that the employer is willing and capable of paying the beneficiary the prevailing job wage.

4. Availability of Work (Off-site)
Employers must prove that they can provide actual ongoing work in a specialty occupation for the period of employment stipulated in the petition.

5. Third-party worksite:
The employer must validate that if the beneficiary is working at a third-party worksite, the entire length of their employment will be in a specialty occupation.

6. Maintenance of Status
If the U.S. authorities find a reason to question the beneficiary's previous visa status for lack of clarity in maintaining visa status, it could result in an outright denial.

7. Fees
The USCIS also issues RFEs and H1B denials if employers fail to pay all the required H1B fees.

In 2017, President Trump added another point for denial of H1B visa petitions when he signed the "Buy American and Hire American" Executive Order. The USCIS issued some denials to promote job growth and protect U.S. workers and the integrity of the U.S. immigration system.

President Joe Biden revoked the same order when he came to office in 2021, reducing factors for the rejection of H1B visas.

Also read: Understanding H1B Visa Rejection Reasons

Analyzing Reasons for H1B ineligibility

Here are some of the most common reasons for H1B visa denial:

  • The application is incomplete, or the consular officer does not have all the documents required for a complete review of the filed petition.
  • The applicant does not qualify for the category they have applied for
  • The filed information indicates that the candidate falls within the inadmissibility or ineligibility clauses of the law. Here the candidate may have a current and/or past record of drug use, criminal activity, or other records that make them ineligible for a U.S. visa.

Quick Ways to Avoid H1B denial

The high rate of H1B visa denials may be discouraging to many, but there are many ways you and your employer can improve your chances of getting an approval. Here are the most important points to keep in mind:

Be thorough:

There should not be any inconsistency or inaccuracy in filing your petition. Make sure that your documents align correctly to show your eligibility for the position you are applying for. Don't miss anything!

Double-check that all the forms have been filled in strict adherence to the instructions provided and that every form has been signed. An unsigned petition will not be processed by the immigration agency.

1.Give clear explanations:
Be sure to provide precision, clarity, and consistency in your explanations when you need to provide supporting evidence or justify your claims.

2. Make sure to get it delivered correctly:
After thoroughly reviewing your documents, ensure that you get the documents and the correct filing fees delivered to the correct service center. The best way to do this is to choose an officially bonded courier service like the USPS, UPS, or FedEx. Avoid direct deliveries or the usage of unbounded courier services at all costs.

What to Do in Case of an H1B Visa Denial

If an application is denied, the applicant is informed about which section of law formed the basis for denial. The consulate officer may also advise applicants about the possibility of applying for a waiver of ineligibility. This makes it easier to determine the next steps to take, beginning with addressing the points that were raised in the denial letter.

Appealing an H1B Visa Denial

If you receive a denial notice on your I-195, your employer can try to file an appeal with the I-120B with additional supporting evidence within 30 days. Most appeals take several months or even years to process.

In addition, most denial notices state that an appeal will not be entertained. Filing a fresh petition will be the best course of action. Make sure to speak to your immigration lawyer to plan the best course of action.

Living and working in the USA remains a dream for thousands of people. Young and talented international students and qualified professionals in large numbers continue to try their luck with H1B visa applications. On the other hand, several US-based employers have run deceptive scams and forgery operations within this process, forcing the U.S. government to adopt stringent measures against forgery.

There are several other ways to enter the U.S. as an immigrant or foreign worker. A well-laid-out plan, help from the right professionals, and hard work will help you get what you want!

TechFetch H1B: The right website to checkout H1B information and updates

With so much uncertainty at every stage, TechFetch H1B will take you one step closer to your H1B visa by providing the correct H1B information.

**Disclaimer: H1B rules and regulations keep changing from time to time. For updated information, always refer the USCIS official website.**

1 Star2 Stars3 Stars4 Stars5 Stars (No Ratings Yet)
Share in: 

Article by Techfetch H1B team

Copyright © 2024 h1b.techfetch.com | All Rights Reserved.