Common Reasons for Denial of an H-1B Visa

After all the hard work by both the U.S. employer and foreign-born employee in applying for an H-1B visa or status, it can be frustrating to get a "No" from U.S. Citizenship and Immigration Services (USCIS) or a U.S. consulate abroad. The usual reasons for the U.S. government to deny an H-1B application include:

• the employer doesn't meet the legal requirements to hire an H-1B
• the job itself doesn't require specialized knowledge or skills
• no direct work relationship between employer and employee has been proven
• the hire goes against current presidential priorities, or
• although no outright denial is issued, the case gets stuck in "Administrative Processing."

These reasons can involve either the employer or the employee. We'll describe them further below.

H-1B Denial Based on Petitioning Employer's Failure to Meet Legal Requirements

An H-1B visa or status is often denied or refused because the petitioner—that is, the employer sponsoring the foreign national for an H-1B visa—does not appear to be a real, established, operating U.S. company with the capacity to hire and pay.

A relatively new petitioning employer that has been in business just a few years will need to be prepared to provide the U.S. government with documentation, such as a tax identification number, tax returns, or financial statements, to prove its existence and revenue. Insufficient documentation can sink the application right there.

The petitioning employer should also be able to provide documentation of having an established location in the United States. This can include website printouts, brochures, photographs of the employer's premises, and any licenses or stock certificates, if necessary. In the ever-growing virtual workplace of today, there still has to be at least one physical location somewhere, even if it's just a co-working space.

H-1B Denial Because Job Does Not Require Specialized Knowledge or Skills

The U.S. government might also deny an petition for an H-1B visa or status because the offered employment does not qualify as a "specialty occupation." The employer must show that either:

• a bachelor's degree or higher degree in a specific field related to the job or the equivalent is normally the minimum requirement for the particular position in that particular industry
• the degree requirement is common for the position among other employers that are similar in size and in the same industry as the employer submitting the H-1B petition
• the job is so complex or unique that it can be performed only by someone with at least a bachelor's degree in a field related to the position
• the employer normally requires a degree or its equivalent in a field related to the position and can show a history of hiring only persons with relevant degrees, or
• the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree in a field related to the job.

If some of the above categories sound confusingly similar to each other, you're not alone in thinking that. Nevertheless, these are the categories the U.S. government regulations lay out. They'll be looking for one of these bulleted points to be clearly met when they assess the applicant's case.

H-1B Denial Based on Inadequate Showing of Employer-Employee Relationship

USCIS often takes a close look at the employer-employee relationship between H-1B workers and their employers.

In past years, this became a particular problem in cases where the H-1B petition stated that the employee would work offsite at a client location. USCIS wanted to know whether the employee would truly be working for the petitioning employer, or whether the employer was trying to get around the rules by acting as a "job shop," placing employees on subcontracting assignments.

As a result, it required petitioners to provide such evidence as a contract for services, purchase order, and a clear statement that only the petitioner had control over the employee who would be working at the client location. Failure to include any of these in the initial petition often resulted in H-1B denials.

This contentious ground of denying H-1B petitions came to a head in the ITServe Alliance, Inc. v. United States Citizenship and Immigration Services litigation, which began in October 2018 and settled in May 2020. Recognizing the unstable ground of the so-called 2010 Neufeld Memo, which later became part of the 2018 USCIS Policy Memo PM-602-0157, "Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites," USCIS agreed to rescind the Policy Memo, and did so in June 2020.

The good news going forward is that USCIS no longer should deny H-1B petitions solely because the employee will work at a client location. For a previously denied petition, employers either can file a new petition or go to court to overturn the denial.

H-1B Denial Based on Presidential or Agency Priorities

Shifts in presidential or agency priorities can mean that the same application might not be treated the same way during a different time period.

For example, following Trump's signing of the April 18, 2017 "Buy American and Hire American" Executive Order, USCIS began searching high and low for reasons to deny H-1B petitions. Some denials asserted that using an entry-level prevailing wage (Level 1 in the Department of Labor's system), which is appropriate for many jobs that require a bachelor's degree and up to two years of experience, means that the job couldn't possibly require a bachelor's degree. Such concerns had largely faded by 2020, and the Biden Administration withdrew the Buy American and Hire American Executive Order. Nevertheless, there's no stopping a future, anti-immigration president from resurrecting it or its intent.

As another example, in 2018, USCIS began denying H-1B petitions for Computer Systems Analyst, Market Research Analyst, and Financial Analyst jobs, which previously had qualified as H-1B specialty occupations. A policy memo rescission in early 2021 restored Computer Systems Analyst as eligible for H-1B petitions, and litigation resolved the Market Research Analyst occupation as of late 2021.

Setting aside the illogical reasoning of the prior decisions, employers need to be prepared for shifting adjudication standards under different administrations.

H-1B Denial Due to Failure to Adequately Deal With a Request for Evidence or 221(g) Request

In most cases, U.S. immigration authorities will not deny a case without providing plenty of advance warning and a chance to correct the problems. If your employer has submitted an H-1B petition to 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 first will issue a 221(g) request.

USCIS requests will ordinarily either state a list of documents 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 an RFE, but depending on the consulate, will likely be given to the beneficiary (the visa applicant) after the consular interview. 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. You simply need to wait to hear from the U.S. consulate after providing the requested information or documents.

Instead of Outright Denial, H-1B Applicants Might Face Long Delays

A potential source of seemingly infinite delay at the U.S. consulate is something called "Administrative Processing." This is an additional level of review the consular officer sometimes conducts before approving or denying a visa application. Administrative Processing can happen before or after a 221(g) request. U.S. State Department guidance (as of 2022) requires visa applicants to wait at least 180 days before inquiring into the status of their applications.

The frustrating thing is that the consular officer often does not say why further review is needed. Although Administrative Processing is frequently wrapped up within a week or two, it can drag on for months and become a frustrating black hole of not knowing whether or when you'll get your H-1B visa.

Getting Legal Help

For personalized assistance with applying for an H-1B visa, consult an experienced attorney. Even if your employer has hired an attorney, there might be situations in which you want to separately consult one; for example, if you have a criminal conviction on record or something else you feel hesitant about discussing with your employer.