There are several likely reasons for an H-1B visa denial by either United States Citizenship and Immigration Services (USCIS) or the U.S. consulate abroad. Below we will go over some common reasons having to do with both the petitioner and the beneficiary.
Denials Based on the Petitioning Employer’s Failure to Meet Requirements
An H-1B visa is often denied or refused because the petitioner, or employer sponsoring the H-1B visa, does not appear to be a real, established, operating U.S. company with the capacity to hire and pay an H-1B worker. An established petitioner will provide documentation, such as a tax identification number, tax returns or financial statements. Insufficient documentation can sink the application right there.
The petitioning employer should also be able to provide documentation of having an established location. This can include website printouts, brochures, photographs of the employer’s premises, and any licenses or stock certificates if necessary.
Denials Based on Inadequate Showing of Employer/Employee Relationship
If the H-1B petition states that the employee will work offsite at a client location, this may raise questions about whether the employee will truly be working for the petitioning employer, or whether the employer is trying to get around the rules by acting as a "job shop," placing employees on subcontracting assignments. The petitioner will need to provide such evidence as a contract agreement, purchase order, and a clear statement that only the petitioner has control over the employee who will be working at the client location. Failure to include any of these in the initial visa petition may result in a denial. For more on this issue, see "Employer's Obligations When Placing H-1B Workers at Third-Party Site."
Denials Based on the Worker-Beneficiary’s Lack of Specialized Knowledge or Skills
An H-1B visa is often denied or refused because the worker/beneficiary does not have the required education, or the offered employment does not meet the "specialized knowledge" requirement. The beneficiary is required to have at a minimum a bachelor’s degree, preferably in the field of offered employment. The beneficiary should also establish, with assistance from the employer, that he or she has specialized knowledge related to the job that has been offered. Although evidence of the B.A. is sometimes enough by itself, in other cases the employee may need to provide such evidence as a thorough resume and experience letters from previous employers.
Denials Based on Employee's Inadmissibility
No matter what type of visa (or green card) a noncitizen applies for, he or she will need to show admissibility to the United States. For more information, see "Inadmissibility: When the U.S. Can Keep You Out."
Dealing With a Request for Evidence or 221(g) Request
Typically, the U.S. immigration authorities will not deny a case without plenty of advance warning and a chance to correct the problems. If your employer has submitted an H-1B visa petition with USCIS, the agency will likely issue a Request for Evidence (RFE) before a denial. If you applied for your H-1B visa at a consulate abroad, it will first issue a 221(g) Request.
USCIS requests will ordinarily either state a list of documentation that must be provided or a list of questions to explain in a letter response. The request will give a deadline by which the response is due. If the recipient does not respond by the deadline, USCIS will deny the case.
A 221(g) Request is similar to the RFE, but depending on the consulate, will be given to the beneficiary after the consular interview, on any color of paper. It will contain specific instructions for documentation needed and instructions on how to return these items to the U.S. consulate for further processing. The 221(g) Request typically does not contain a deadline. If the consular officer wishes to conduct a more thorough background check on the beneficiary or the petitioner, it may issue a 221(g) for further administrative processing, in which case you would wait to hear from the U.S. consulate.