H1B Transfer Denied? Your Next Steps

 

H1B petitions across the board are facing greater scrutiny from US authorities. H1B holders transferring to new employers in particular are seeing increasing numbers of denials.

Receiving an H1B transfer denial can be devastating news, so it will be important to understand your options and what the denial means for your status in the US.

Why are H1B transfers denied?

H1B transfer petitions can be denied for many reasons. There could be seemingly minor issues such as payment of an incorrect amount for processing fees or more complex grounds relating to the US employer, the employee or the conditions of employment.

Failure to convince the adjudicator of the working relationship for example 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 has been denied?

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

Refiling for example may be an option if the denial was by reason of an application error (such as sending the application to the wrong department) or an issue with the fee.

In the particular circumstances, it may be more sensible for your employer to file a completely new application which specifically addresses the grounds for denial through evidence.

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 (due to adjudicator error) or reopened (due to new evidence emerging).

Taking 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.
What is premium processing for H1B petitions?
The temporary suspension of H1B premium processing has been lifted. This means H1B transfer applicants can pay the additional fee for their transfer application to be expedited and processed within 15 days of submission, provided all information has been submitted.
Should an RFE be issued, the 15 days will start again on receipt of the RFE response.
In the event USCIS take longer than 15 days, they are required to refund the premium fee and continue with expedited processing.

What does an RFE mean for an H1B petition?

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.

Do you have a query about an H-1B petition denial? Book a fixed fee telephone consultation with a US immigration attorney >>

This article does not constitute direct legal advice and is for informational purposes only.

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