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.
An established petitioner will provide documentation, such as a tax identification number, tax returns, or financial statements. 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 unless the employer can show that either:
If the H-1B petition states that the employee will work offsite at a client location, this may raise questions about whether the employee will truly be working for the petitioning employer, or whether the employer is trying to get around the rules by acting as a "job shop," placing employees on subcontracting assignments.
The petitioner will need to provide such evidence as a contract agreement, purchase order, and a clear statement that only the petitioner has control over the employee who will be working at the client location. Failure to include any of these in the initial visa petition may result in a denial. For more on this issue, see Inadmissibility: When the U.S. Can Keep You Out.
Following Trump's signing of the April 18, 2017 “Buy American and Hire American” Executive Order, USCIS has been searching high and low for reasons to deny H-1B petitions.
Some denials have 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 one or two years of experience, means that the job cannot possibly require a bachelor’s degree. That was the focus in 2017.
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.
Typically, 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 will first 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. If the consular officer wishes to conduct 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.