Having your work visa denied after your employer files it on your behalf is one of the most concerning things that can happen in someone’s immigration process. Read on to learn more about the H-1B visa, why someone may be denied, and what you can do if this is your situation. Contact an employment visa attorney in New York City ASAP, and we’ll help you navigate the tricky United States immigration system.
What Is an H-1B?
An H-1B is a nonimmigrant visa sometimes referred to as a work visa. Prospective employers looking to sponsor a foreign national for an H-1B visa will file Form I-129 from United States Citizenship and Immigration Services (USCIS). The H-1B visa is specifically for specialty occupation workers, and the job that the prospective employee will be carrying out must require at least a specific bachelor’s degree. Many H-1B qualifying jobs have a quota of only 85,000 approved each federal fiscal year.
Why Did USCIS Deny My H-1B Petition?
These are the most common reasons why an H-1B petition might be denied:
- The prospective employee did not meet the necessary criteria
- The prospective employer wasn’t controlling the prospective employee’s work
- There was no real job position and the applicant would not be working.
What Can I Do if USCIS Denied My H-1B Petition?
If your H-1B petition is denied while you are outside the country, but you would still like to work in the United States, you have a few options. You can ask your employer to start the process again by filing a new I-129. This is especially useful if your employer can speak to whatever issue the USCIS took with the original petition. For example, Form I-129 requires proof of your bachelor’s degree, foreign equivalent degree, or equivalent experience. If your employer forgot to mail a copy of your degree, then just filing a new I-129 may be all you need.
However, it isn’t always possible to file another I-129. H-1B’s are subject to an annual cap. If your petition was selected and then rejected, you may need to wait one year before filing again, and even once the petition is filed, you might not be selected again.
You may want to look for a job that is exempt from the annual cap. Employers exempt from the limit include institutions of higher learning, nonprofits associated with institutions of higher learning, nonprofit or governmental research organizations, or organizations that require an H-1B employee to work at any of the first three categories.
If your employer can’t or won’t file any I-129 petition and you wish to come to the United States, you can also try entering via a different kind of visa. There’s no annual cap on visas for foreign students, though you would need to submit different documents and meet different criteria for a student visa.
If you are inside the country, your options are very similar, but with one major difference. You will first need to find a legal way to extend your stay. If your employer can correct the problems with the first I-129, they may do so and request that USCIS extend your stay. If the USCIS does not, you’ll have a 60-day grace period to leave, before you are subject to heavy immigrant consequences.
Contact the Law Office of Cheryl David Soon
If your H-1B visa has recently been denied, know that our firm has extensive experience dealing with cases that involve employment visas. Please get in touch quickly so we can help you.