What Are the Reasons That the USCIS Might Deny Your H1B Visa Petition?

If you have located a sponsor for an H1B visa and they have a position that seems to match your skills and education, then you still have to go through the approval process for the petition.  As you will see, many denials result from lack of evidence that the sponsor is a valid US business entity.  This places importance on the process of selecting a sponsor from a database of credible companies, to avoid disappointment.

Denials Based on the Sponsoring Company

H1B visa denials are often not the fault of the foreign worker, since there are many requirements that the sponsor must meet to show they qualify.  The sponsor requirements are designed to prevent abuse of the program by ‘shell’ companies or ‘consulting’ firms that take advantage of foreign workers.

Some reasons for denial include:

• No established office premises, and using a commercial mailing address 
• No evidence of a real business such as registrations, incorporation documents, websites and photographs of the office 
• No tax identification number, recent tax returns or financial statements 
• The job offered will be located ‘off-site’ from the sponsor, which begins to appear like it is being sub-contracted in violation of USCIS rules 
• No formal contract or employment offer with the sponsor 
• The offered employment is not for a ‘specialty occupation’ because it:
  • Does not require a bachelor’s degree or higher
  • The industry does not typically require a degree
  • The job is not complex or unique to degree level education

This was the chief complaint of recent US workers displaced by H1B workers, since some of the positions were obviously unskilled, and companies like Disney were using the program to hire cheaper labor for unspecialized positions.

Denials Based on the Applicant’s Background or Education

The other primary area of H1B visa denials is the background and degree of the foreign worker.  The H1B visa rules are clear in that the job in the ‘specialty occupation’ must match the degree of the worker, and cannot be in an unrelated field.  Also, the information in the petition must be consistent with all documentation, so resumes that are falsified or embellished could lead to a denial.

What Happens if The Petition is Denied?

One reason that we recommend getting an early start on the 2017 H1B visa season is that it is not uncommon for the USCIS to initially delay approving a petition pending more information.  They will issue and request for evidence (RFE) to give you or the sponsor a chance to clear up any issues or lack of evidence.  This will take the form of simple questions to answer, or additional documents that need to be submitted.  You will have a deadline to meet in responding, or the petition will be denied.

You can appeal the denial of course, but this takes more time and it is much easier to just give the information asked for in the RFE.  If your sponsor won’t respond or give the information to USCIS, then likely they are not a viable company, and you will have to start over again.

If you would like to avoid the stress and time of dealing with unreliable or sham sponsors, please contact us so that we can guide you in the process of finding the best sponsor and position for your background.

• January 24th, 2017
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