Common Reasons for Denial of an H-1B Visa

Learn about the most common reasons USCIS or a consulate abroad would deny a request for an H-1B visa or status.

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.

Denials Based on Petitioning Employer’s Failure to Meet Requirements

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.

Denials Because Job Does Not Require Specialized Knowledge or Skills

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:

  • 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,
  • the degree requirement is common for the position among other employers that are similar in size and in the same industry as compared to 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, 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.

Denials 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 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 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.

Denials Based on the “Buy American and Hire American” Executive Order

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. And, employers continue to sue USCIS over arbitrary denials of H-1B petitions.

Dealing 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 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.

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