If you and your family are already settled in the US under the H1B visa, and you’ve found a new challenge with a new job for a new employer, you need to transfer your visa to your new employer to safeguard your immigration status and permission to stay in the US.

But if your H1B transfer is denied, given what’s at stake, it will be important to understand your options and what the denial means for your status in the US.

 

What is an H1B transfer denial?

 

H1B transfer petitions can be denied for many reasons.

It’s important to distinguish between an H1B transfer rejection and denial. While rejections tend to be minor and easily corrected, denials are merit-based and require specialist advice to understand your options and next steps.

A rejected transfer application will relate to an initial appraisal of the application by USCIS, whereby the application documents are reviewed to ensure everything is there for the adjudicator to make a decision and that the correct processing fees have been paid. If the application is missing anything, it will be rejected.

If your application is complete and then proceeds to being processed and evaluated, if the adjudicator considers the application does not meet the H1B requirements for the US employer, the employee or the conditions of employment, it can be denied.

For example, failure to convince the adjudicator of the working relationship can be damaging to your petition. Working location should be clearly stated and any off-site work detailed clearly to demonstrate sufficient ‘control’ by the employer over the employee’s work, and not any third party or subcontracting company.

If the adjudicator is not satisfied that the employee has both the required qualification (Bachelor’s degree in the field of work) and that the role on offer demands that specialized knowledge, it is likely the application will fail.

Or, if there are concerns from the evidence provided that the employer does not meet the H1B sponsor requirements, the petition may be denied. Extensive documentation is required to prove the employer’s ability to offer sufficient speciality occupation work at the proffered wage rate.

 

Can you appeal if your H1B transfer has been denied?

 

A number of options could be open to you if your H1B transfer has been denied, though your course of action will be dependent on the grounds for the denial.

The notification letter will typically advise that there is no recourse for appeal, however you could consider whether your case would qualify to be reconsidered (eg due to adjudicator error) or reopened (eg due to new evidence emerging).

For example, you may be able to correct and refile your original application if has been rejected because of an application error (such as sending the application to the wrong department) or an issue with the fee. If the adjudicator has held the visa requirements have not been met, it may be more sensible for your employer to file a completely new application which specifically addresses the grounds for denial through evidence.

Taking professional advice will ensure you have considered all factors before deciding how to proceed.

 

Can you continue working after your H1B transfer has been denied?

 

H1B transfer applicants can technically start working for their new employer as soon as USCIS receive the transfer application. However, it is usually advised to wait until the visa is granted before starting the new employment in case of any issues with the petition.

From the date of notification, you no longer have the H1B status to be employed lawfully. You must cease working as soon as you receive the notification of the H1B denial.

If you still hold valid H1B status from your previous application, you may consider going back to your previous H1B employer.

 

How long can you stay in the US after an H1B transfer denial?

 

If your H1B transfer is denied, you can only stay in the US lawfully until the expiry date on your I-94 card. Remaining in the US out of status and unlawfully will have serious implications on any future US immigration applications.

If you have time remaining on your current H1B visa, you will have either a 60 day grace period or the time remaining on the original approval in which to regularize your status, such as finding new H1B qualifying employment, or returning to your previous H1B employer, or you will have to leave the US.

 

H1B transfer denied: next steps

 

If your H-1B transfer has been denied, it’s important to act quickly and assess your next steps based on your current immigration status and circumstances.
First, if you are still working for your previous H-1B employer and their petition remains valid and unwithdrawn, you may be able to return to that position. Employers are not required to withdraw an H-1B petition immediately, so checking whether that option remains available is a priority.

If you had already started working for the new employer when the transfer was denied, you must stop working immediately. Continuing employment after a denial can result in unauthorized work, which may affect future immigration benefits.

You may remain in the United States for a short period to explore other options, but overstaying can have immigration consequences. Speak with an immigration attorney right away to determine how much time you have and whether you are eligible to apply for a change of status, file a new H-1B petition, or leave the country and reenter once a new petition is approved.

In some cases, it may be appropriate to file a motion to reopen or reconsider the denied petition if there was a legal or procedural error. A new employer may also file a fresh petition addressing the previous reasons for denial.

Taking professional advice will help you understand your options and appropriate next steps in your circumstances.

 

What does an RFE mean for an H1B transfer?

 

A Request for Evidence (RFE) is not a denial of your application. It indicates that the adjudicator has insufficient evidence to decide the application and as such, is requesting specific information or documentation in order to come to a decision on the case.

If you receive an RFE, it will be critical to act quickly and to compile and submit the required documents within the given timeframe. Failure to do so will see your application refused.

Applicants who are concerned about delayed processing due to an RFE should note that they can upgrade to premium processing to benefit from expedited adjudication.

 

Need assistance?

 

NNU Immigration are US visa specialists. For expert guidance with your application to transfer status and retain lawful status in the US, contact our attorneys.

 

H1B transfer denied FAQs

 

What happens if H-1B transfer gets denied?

If your H1B transfer is denied, and your lawful status depends on the new visa approval, you will need to consider your options to retain lawful status, such as applying for a new transfer or adjusting your status to a different classification. Alternatively, if your current H1B status remains valid, you may be able to remain in the US on this basis.

 

What are common reasons for an H-1B transfer denial?

Common reasons include lack of evidence showing the job qualifies as a specialty occupation, insufficient employer documentation, or failure to establish an employer-employee relationship.

 

Can I keep working for my new employer if the H-1B transfer is denied?

If the transfer is denied after you have started working for the new employer, you must stop work immediately as your work authorization ends with the denial.

 

Can I return to my previous employer after a transfer denial?

If your prior H-1B petition is still valid and the employer has not withdrawn it, you may be able to return to that job. Legal advice should be sought to confirm your options.

 

Do I have to leave the US immediately if the transfer is denied?

If you have remaining time on your previous H-1B approval and your prior employer is willing to rehire you, you may be able to remain in the US lawfully.

 

Can I apply for another H-1B transfer after a denial?

A new employer can file another H-1B petition on your behalf if they meet the eligibility requirements and address the reasons for the previous denial.

 

Does a denial affect my future immigration status?

A denial itself does not bar future applications, but repeated denials or unauthorized presence in the US could affect your immigration history.

 

Is there an appeal process for H-1B transfer denials?

USCIS decisions may be challenged through a motion to reopen, motion to reconsider, or by filing an appeal with the Administrative Appeals Office.

 

Can premium processing help avoid denials?

Premium processing only speeds up the adjudication timeline. It does not improve the chances of approval or reduce the risk of denial.

 

What documents are essential to avoid a transfer denial?

A detailed job description, proof of the employer’s business operations, and evidence that the role qualifies as a specialty occupation are all critical.

 

Should I consult an immigration attorney after a denial?

A qualified attorney can help assess your legal options, clarify your current status, and plan your next steps.

 

What is the failure rate of H-1B transfer?

H-1B transfers on average have around a 17% denial rate.

 

Is it difficult to transfer H-1B?

Transferring your H1B status can quickly become daunting without specialist support. The transfer process is complex, and taking professional advice can help ensure you meet the application requirements and avoid issues, errors or denials.

 

Glossary

 

Term	Definition
H-1B Transfer	The process of changing employers while maintaining valid H-1B status without being subject to the annual cap again.
Denial Notice	A written decision from USCIS explaining the reasons an H-1B petition was not approved.
Specialty Occupation	A job that requires a specific bachelor’s degree or higher and specialized knowledge to perform the duties.
Employer-Employee Relationship	A requirement showing the employer has the right to hire, fire, supervise, and control the H-1B worker’s duties.
Unauthorized Employment	Working for a US employer without valid work authorization, which can occur if a transfer is denied after work has started.
Motion to Reopen	A formal request to USCIS to reconsider a denied petition based on new facts or documentation.
Motion to Reconsider	A formal request asking USCIS to review a denial based on a claim that the decision was legally or factually incorrect.
Administrative Appeals Office (AAO)	A division within USCIS that handles appeals on denied immigration benefit requests, including H-1B petitions.
Out of Status	The condition of remaining in the US without valid immigration status, which may occur after a denied petition.
Reinstatement	A legal process to regain lawful immigration status after falling out of status, often requiring a new petition or departure and reentry.