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The H1B Visa is a non-immigrant workers visa designed to fulfill specialty occupations that cannot be fulfilled from within the US citizen population. A certain quota is issued every year: 65,000 visas for workers with bachelor's degrees and 20,000 visas allotted for qualified workers with advanced degrees (master's or higher).
Before getting into why an H1B visa gets rejected, it helps to understand how to analyze your lottery chances.
According to US law, all visa applicants are usually required to face an interview with a consulate officer at the US Embassy or Consulate office. Applicants receive notification of approval, denial, or rejection after reviewing all relevant information within standards established by US law.
Let's now talk about why the H1B visa gets rejected.
US immigration authorities usually provide plenty of advanced warnings and opportunities for rectifying mistakes before they issue a rejection. Such notices and warnings are time-bound. If the applicant fails to act within the specified time, their application will be rejected.
1. Specialty occupation
Immigration officers will reject applications for jobs that do not fall under the "specialty occupation" category. Employers have to prove one or more of the following:
2. Employer-employee relationship
If the employer cannot establish a fully transparent employer-employee relationship, their H1B application will be denied. Employers need to prove that they will maintain the right to control the beneficiary's work throughout employment.
Proof of employer-employee bond becomes even more crucial if the employee works at a third-party worksite. The employer will have to produce a clearly defined contract agreement detailing the terms and conditions of the job and other such documents or face rejection of the H1B petition.
The employer-employee relationship mandate is one main reason why experts recommend against self-petitioning when applying for an H1B visa. If you plan to sponsor yourself through your own business, you will need to formulate a third-party body, such as a board of directors, who can hire or fire you. A board or party of this nature will be the only way to show an employer-employee relationship and a sponsoring entity for your H1B application.
3.Prevailing wage problems
The Department of Labor (DOL) defines 'prevailing wage' as the "average wage paid to similarly employed workers in a specific occupation in the area of intended employment." Prevailing wage is one of the most important aspects of the Labor Condition Application (LCA) application process. The petitioning employer must prove that they are willing and capable of providing the beneficiary the prevailing wage.
Failure on the employer's part to prove this willingness and capability to the satisfaction of the DOL will lead to a subsequent visa denial.
4. Proof of Work (off-site)
Employers petitioning for an H1B visa must be able to prove to the USCIS that beneficiaries will be engaged in ongoing, gainful employment in a specialty occupation for the duration of their stay in the US. Any form of ambiguity like anticipatory work based on prospective contracts will not be accepted. Solid proof of ongoing work like detailed work assignments, work orders signed by end-user clients, and other certified documentation can be convincing proof.
5. Third-party work-site
Suppose the employer is petitioning for a beneficiary who will be engaged at a third-party worksite. In that case, they must prove that they will be engaged in a specialized occupation for the full validity of the visa. An example of clear proof of engagement is a detailed itinerary showing the list of day-to-day activities at the worksite.
H1B rejection rates are usually very high as immigration officers are quick to find errors and discrepancies in applications. But President Donald Trump's signing of the 2017 "Buy American and Hire American" order sent the USCIS on a frantic search for reasons to reject H1B visas. Jobs like Computer Systems Analyst, Market Research Analyst, and Financial Analyst that were H1B jobs were removed from the eligibility list.
Some denials in 2017 asserted that certain jobs designated as specialty occupations could not possibly require a bachelor's degree and a minimum of two years' experience if they were at a Level 1 (entry-level) prevailing wage.
Thankfully, there has been a lot of relaxation since President Joe Biden revoked this Executive Order in 2021. But employers continue to sue USCIS over arbitrary H1B visa denials and are preparing for more surprises within the system.
1. Maintenance of status
Maintaining a clear status of your visa throughout its validity period is critical for subsequent visa applications for extensions, renewals, or other procedures involving your visa. Any question about clarity of status could be a reason for outright denial.
2. Failure of Payment
Many petitioning employers fail to pay the appropriate filing fee along with their application. This will earn them a RFE from the USCIS. Oversight in the fees to be paid will lead to unnecessary delays in processing.
There may be many factors why an immigration officer denies an H1B application:
Here are a few points to help you consider whether you fall under the ineligibility category. An applicant is considered ineligible for a visa if they:
This article might make you question the possibility of getting an H1B visa. But it is worth noting that most cases of denial come from a lack of diligence during the filing process. Both the petitioner and the beneficiary need to be meticulous about the documentation process and the fee payment.
Even though a denial can be disheartening, you may have a second chance if yours is an exceptional case - you may be eligible to appeal not less than 30 days after receiving a denial. In all cases, the right professional help will get you further, faster. Speak to an immigration attorney to understand your best options.
Also read: When your H1B Visa is Rejected - Next Steps
Visit TechFetch H1B to understand why your H1B visa gets rejected and how to go about it. Not just that, we are a one-stop site for all information you need onH1B and its related processes.
**Disclaimer: H1B rules and regulations keep changing from time to time. For updated information, always refer to the USCIS official website.**