After all the hard work by both the employer and foreign-born employee in applying for an H-1B visa or status, it can be frustrating to have U.S. Citizenship and Immigration Services (USCIS) or a U.S. consulate abroad say 'no,' and deny the application. This typically happens for one of the reasons described below. These 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 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 coworking space.
The U.S. government might also deny an application for an H-1B visa or status because the offered employment does not qualify as a "specialty occupation." The petition will be denied unless the employer can show that either:
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.
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 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 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 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.
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 it largely had faded in 2020 as an automatic ground to question whether the job can qualify for an H-1B petition. And even though the Biden Administration withdrew the Buy American and Hire American Executive Order, there's no stopping a future, anti-immigration president from resurrecting it or its intent.
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.
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.
Another potential delay at the consulate is "Administrative Processing," which 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. The 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 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 whether or when you'll get your visa.