Having your H-1B Visa application [1] denied can be extremely worrisome, but what will happen to your immigration status, will depend on the particular circumstances of your case.
For example, a denial of an H-1B Visa application, of which you were the Beneficiary, may negatively affect your immigration status, if you are in the United States, and you do not have a non-immigrant visa that is independently valid.
There are other instances, in which the denial of an H-1B Visa petition, may have bad consequences for you as the Beneficiary. If your non-immigrant visa status expired while the H-1B application was pending, an H-1B visa denial may leave you without lawful status in the United States ( “illegal”) and you could even have Removal/Deportation proceedings initiated against you, although that would be relatively rare.
The reasons for the denial of the H-1B Visa application will be included in the denial letter which is issued to the business entity that filed it, the Petitioner. The Petitioner, and not the Beneficiary, is allowed to fight the denial by filing a Motion to Reopen or Reconsider or an Appeal, with a Form I-290B. The Administrative Appeals Office (AAO) of USCIS (United States Citizenship and Immigration Services Agency) will review the denial and make a determination as to whether or not the denial was appropriate. In the event the AAO rules that the application should not have been denied, then an approval will be issued or the case will be returned to the Service Center for a new decision, and if the Beneficiary had lost their status, it would be restored.
If your H-1B Visa application was denied, our business immigration lawyers in Boston [2] can help determine what impact that denial has on your immigration status. For a case consultation, contact FitzGerald Law Company at (617) 303-2600.
Why is an H-1B Visa Application denied?
There are a large variety of reasons that could result in the denial of an H-1B Visa Application but they generally fall into one of three categories:
- Improper, insufficient or inadequate documentation; or
- The position at the Petitioner’s business is non-professional (does not require a University degree or its equivalent) ; or
- The Beneficiary does not have the required qualifications for the position.
Documents You Must File to Support Your H-1B Visa Application
If your H-1B application was denied, it is possible that one of the many documents required by the USCIS to prove the Petitioner and the Beneficiary are eligible for the visa was not submitted or filed as directed by USCIS. Thus, it is critical to understand what documentation is required and appropriate for the submission of an H-1B Visa application to the United States Citizenship and Immigration Services (USCIS).
The following documents, along with their English translation, usually must be presented to USCIS to so that the H-1B Visa petition [1] is approved and not denied:
- Copy of the Beneficiary’s passport
- Copy of the Beneficiary’s current H-1B visa, if applicable
- Copy of the Beneficiary’s most recent I-94 Form, if they are present in the U.S.
- Copy of the Beneficiary’s university transcript(s)
- Copy of the Beneficiary’s Curriculum Vitae /Resume
- Copies of any relevant educational certificates or diplomas
- Copies of letter(s) of Recommendation from the Beneficiary’s previous employer(s), and/or from previous instructors/professors, if required
- Letter from the Petitioner with detailed job description
- Records or Itinerary of job site locations for any anticipated off-site duties
- Employer tax ID number
- Name and title of the employee’s new direct supervisor
- Description of the Petitioner’s business and the business date of inception
- Copy of the Petitioner’s Articles of Organization, issued by a state government
- Number of employees currently working with the Petitioner
- Number of H-1B employees currently working with the Petitioner
- Copies of relevant marketing material describing the Petitioner and its business
- Copy of approved LCA, Form ETA-9035 for the relevant time period of the H-1B Visa
Failure to file sufficient and appropriate documentation can result in a denial of your H-1B visa application. Our business immigration attorneys [2] have years of experience obtaining and reviewing the documentation necessary for H-1B application approvals and they can provide an analysis of this documentation if your H-1B Visa application is denied.
Position Requires a Bachelor Degree or Higher
In order for an H-1B Visa to be issued, the Petitioner must provide evidence that the position is “professional,” meaning the position requires a minimum of a Bachelor’s Degree from a University, or its equivalent, for its performance (See 8 C.F.R. § 214.2(h)(4) [“an occupation which requires theoretical and practical application of a body of highly specialized knowledge in field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts; and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”].) As such, there must be evidence to show that a bachelor’s degree or higher degree, or its equivalent is normally the minimum required for the position; the bachelor degree requirement is common to the industry; the employer normally requires a degree or its equivalent for the position; or the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or a higher degree.
Beneficiary’s Qualifications for a U.S. H-1B Visa
The Beneficiary must have as a minimum a university degree and the degree, or the course of study of the Beneficiary must be specifically related to the position that is offered by the Petitioner. If there is not a sufficient relation between the Beneficiary’s educational and/or professional background of the specialized duties of the position, then USCIS may not be convinced that the Beneficiary’s qualifies for the H-1B visa.
Eligibility Requirements for an H-1B Visa in the U.S.
An Employer (Petitioner) can sponsor an H-1B Visa application for a an Employee (Beneficiary) if the Beneficiary meets the following conditions:
- They were admitted lawfully into the United States with a nonimmigrant visa, if they are present in the U.S.;
- Their Nonimmigrant visa status remains valid at the time of filing for the H-1B visa, if they are present in the U.S.;
- They are not ineligible for a visa due the commission of a disqualifying criminal offense or security issue;
- They have not committed any disqualifying violations of presence in the U.S. or prior admissions to the U.S.
- They (generally) have a passport valid for the duration the H-1B Visa
- They possess a qualifying University degree or its equivalent.
If the beneficiary failed to meet any one of the listed requirements or they did not provide sufficient documentation, it could be the reason for an H-1B visa application denial.
What Options Do I Have If My H-1B Visa Application Is Denied?
If your H-1B Visa application is denied, the Petitioner has options to fight the decision. What steps you should take will depend the basis of the denial, which will be set forth in the denial letter issued to the Petitioner.
The Beneficiary generally has no right to file for a review of a denial of an H-1B Visa Petition..
Filing a Motion to Reconsider
If your application was denied and it appears that it was a legal error in the USCIS decision, then the Petitioner can file a Form I-290B, Motion to Reconsider, and ask USCIS to review the application again based on the information and documentation contained in the Record of Proceeding (the records in the file at the time of the decision).
Filing a Motion to Reopen
If your application was denied and it appears from the USCIS decision that it was missing some evidence, then the Petitioner can file a Form I-290B, Motion to Reopen. The Motion to Reopen allows the Petitioner to supplement the prior filing to include the missing material, and ask USCIS to adjudicate the application again with the new information.
Appealing the Denial
If your application was “denied,” you may need to appeal the decision to the USCIS Administrative Appeals Office (AAO), with a Form I-290B, within 30-33 days of issuance of the denial, along with a legal brief at that time or within the next 30 days.
When you appeal a decision to the AAO, the USCIS office that made the original decision will first review the appeal to determine whether to take favorable action and grant the H-1B Visa. During this “initial review,” the reviewing office may treat the timely appeal, as a motion to reopen or a motion to reconsider, and approve the H-1B.
If the reviewing office does not approve the case, it will then forward the appeal and the related record of proceedings to the Administrative Appeals Office for a decision.
Generally, you will need to specifically identify the erroneous conclusions of law, or incorrect statements of fact in the unfavorable decision. In visa petition proceedings, it is the Petitioner’s burden to establish eligibility for the immigration benefit sought, in this case an H-1B Visa. If the appeal does not demonstrate that the Petitioner presented sufficient evidence under the appropriate legal standard, then the appeal may be denied as well. Our experienced employment immigration lawyers [2] can help you prepare a brief that concisely explains your position and why your application should be approved.
Our Boston Business Immigration Attorneys Can Help
If your H-1B Visa application was denied and you are worried about your immigration status, our employment and work visa immigration lawyers can help by providing you with an evaluation of your case. Call FitzGerald Law Company today and schedule a consultation at (617) 303-2600 of fill out our online appointment request [3].