Most Common Reasons for Denial of an H-1B Visa

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. We will also discuss what happens before a case is denied, how to deal with a Request for Evidence or 221(g) Request, and how to appeal your case if it is denied.

Denials Based on the Petitioner’s Failure to Meet the Requirements

An H-1B visa is often denied or refused because the petitioner, or employer sponsoring the H-1B visa, is not an established company, or has failed to show that it is. An established petitioner will provide financial documentation, such as tax returns or financial statements, which show it is able to pay the sponsored employee the offered wage listed in the H-1B visa application.

The offered wage must be paid at or above the prevailing wage for the employee’s offered employment in the county where the employee will work. This information can be found at the Foreign Labor Certification Data Center at http://www.flcdatacenter.com/, and can be thoroughly explained by your immigration attorney.

The petitioner should also be able to provide documentation of an established business with an established location. This can include website printouts, brochures, photographs of the employer’s premises, and any licenses or stock certificates if necessary. If the H-1B petition states that the employee will work offsite at a client location, the petitioner should provide a contract agreement, purchase order, and a clear statement that only the petitioner has control over the employee who is working at the client location. Failure to include any of these in the initial visa petition may result in a denial.

Denials Based on the Beneficiary’s Eligibility

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. This can be achieved by providing a thorough resume and, in some cases, experience letters from previous employers.

An H-1B visa can also be denied if the beneficiary is already in the U.S., but has failed to maintain lawful immigration status where there. The beneficiary should provide evidence of continued lawful status by including a copy of a current visa stamp or visa approval notice as well as the last three months' pay statements and most recent Form W-2. H-1B status may be dependent on the person working for the approved employer. If the beneficiary is not working, he or she could be considered "out of status" and therefore not eligible for the H-1B visa.

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 you have applied for an H-1B visa with USCIS, it will issue a Request for Evidence before a denial. If you applied for your H-1B visa at a consulate abroad, it will first issue a 221(g) Request.

A Request for Evidence comes on a blue sheet paper to the petitioner’s office or the attorney’s office, if applicable. The Request will 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 Request for Evidence, 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 and can be issued without a request for specific items. If the consular officer wishes to complete 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.

How to Appeal the Denial

You can appeal USCIS’s decision to deny your H-1B visa by filing Form I-290B, Notice to Appeal or Motion, available for free download on the USCIS website. The filing fee for this appeal was, as of early 2013, $630 (but check the website for the latest fee). Checks should be made out to The Department of Homeland Security.

Filing an I-290B does not guarantee that your case will be reopened, or once reopened, that it will be approved. If your case is reopened, the appeal process can take months -- often even a year. In the meantime, you would not be able to work in the U.S. in H-1B visa status. This is a delicate decision and process that should be reviewed by an immigration attorney.