U.S. Citizenship and Immigration Services (USCIS) or a U.S. consulate abroad will deny an H-1B visa or status for one of several likely reasons. The reasons can involve either the employer or the employee.
An H-1B visa or status is often denied or refused because the petitioner—that is, the 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.
A relatively new petitioner that has been in business just a few nears will need to be prepared to provide 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. This can include website printouts, brochures, photographs of the employer’s premises, and any licenses or stock certificates, if necessary.
An H-1B visa or status can be denied or refused because the offered employment does not qualify as a “specialty occupation.” USCIS will deny a petition unless the employer can show that either:
Following the January 8, 2010 so-called “Neufeld Memo,” named after the USCIS official who issued it, USCIS started taking a close look at the employer-employee relationship between H-1B workers and their employers. If the H-1B petition stated that the employee would work offsite at a client location, this raised questions about 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, the petitioner needed to provide such evidence as a contract agreement, 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 visa 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 that began in October 2018 and settled in May 2020. Recognizing the unstable ground of the 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 within 90 days of May 16, 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.
The USCIS Policy Memo PM-602-0157 noted in the previous section also emphasized a previously overlooked provision in the H-1B regulations that requires employers of H-1B workers to provide an itinerary if the H-1B worker will work in more than one location.
Before the 2018 Policy Memo, petitioners could provide a projected or estimated itinerary. Following release of the Policy Memo, USCIS began denying petitions if petitioners did not provide detailed locations and dates for where the H-1B worker will provide services during the entire period requested on the petition.
The ITServe Alliance, Inc. settlement temporarily prohibits USCIS from requiring detailed itineraries for H-1B workers until USCIS issues new guidance or regulations concerning locations for H-1B workers.
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 cannot possibly require a bachelor’s degree. That was the focus in 2017, but appears as of 2020 no longer to be an automatic ground to question whether the job can qualify for an H-1B petition.
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. Setting aside the illogical reasoning of these decisions, employers need to be prepared for yet more surprising reasons for H-1B denials under the current administration. As noted above under the employer-employee relationship and itinerary issues, employers continue to sue USCIS over arbitrary denials of H-1B petitions.
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 the RFE, but depending on the consulate, will be given to the beneficiary 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, and you simply need to wait to hear from the U.S. consulate after providing the requested information or documents.
Another potential delay at the consulate is “Administrative Processing,” which is an additional level of review the consular officer conducts before approving or denying a visa application. Administrative Processing can happen before or after a 221(g) request. The U.S. State Department guidance as of 2020 requires visa applicants to wait at least 180 days before inquiring into the status of their applications if they have not heard from the consulate sooner. The frustrating thing about Administrative Processing is that the consular officer often does not say why further review is needed. It’s frequently resolved in a week or two but can drag on for months and become a frustrating black hole of not knowing if or when you’ll get your visa.