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What to Do if Your H1B Transfer is Denied
At a Glance
- If your H1B transfer is denied, you might explore filing a different I-129 or correcting mistakes in your initial application.
- Review your denial letter, as it may contain crucial information impacting the appeal process or options for correction.
- Appealing the denial could be challenging based on the statement in the denial letter, but exploring alternative filings might be an option.
- Consider consulting with an immigration attorney for guidance on the best course of action based on the specifics of your situation.
You might be living the American dream on your H1B visa but have found a new, better employer that is offering you an opportunity you can’t resist. You’ve already established you can do an H1B transfer and change jobs, but perhaps you are wondering what the chances are of your H1B transfer being denied? Or maybe you’ve already received your denial, and now you’re wondering what to do next. Perhaps we can help.
Difference Between an H1B Denial and an H1B Rejection
Before we go into the possible reasons why your H1B transfer was denied, it is vital to understand the difference between rejection and denial.
When you submit your application to the United States Citizenship and Immigration Services (USCIS), a USCIS officer reviews your paperwork to make sure everything is there. They check that you supplied all the information and documents required and have paid the necessary fees. If anything is missing, your application is rejected.
After this, the USCIS officer evaluates your case to see whether you and your employer meet the requirements for the H1B transfer. This is done through the documents and information you’ve provided. If you don’t meet the requirements, your application will be denied.
With a rejection, the error is merely technical and can usually be corrected. Once corrected, you can refile your application. If your case is denied, however, the officer doesn’t believe your case merits the H1B transfer. You will need to follow other routes to work around a denial. An immigration attorney would be best to advise you on what you can do in case of a denial.
But why would your H1B transfer be denied?
7 Reasons Your H1B Transfer was Denied
Once you’ve gone through the H1B transfer process, there are many reasons why your H1B transfer can be denied. Let’s take a look at the most common reasons which relate to both you as an employee and your new H1B visa sponsor.
1. Petitioner’s Requirements
Your new employer is the petitioner in an H1B transfer. The petitioner has to show it is an established entity that is actively operating in the U.S. It also has to show it has the ability to hire, pay and provide sufficient specialty occupation work to you as an employee. There is a long list of documents your new employer can submit to prove this, including a property lease and photographs of the office. If the petitioner does not provide sufficient evidence, your H1B transfer will be denied.
2. You Lack Specialized Knowledge
One of the essential requirements for H1B approval is showing the position is a specialty occupation that requires you to have specialized knowledge or at least a bachelor’s degree. You have to show you have specialized knowledge which is directly related to the job. There is, again, a long list of documents you can provide to prove specialized knowledge. Your resume and experience letters from previous employers will help with this. If you can’t show specialized knowledge, you will have your H1B transfer denied.
3. Insufficient Proof of Employer/Employee Relationship
To avoid an H1B transfer denial, you also need to show there is a valid employer/employee relationship between you and your new employer. The petitioner has to show you will be managed and controlled by them. If you can’t show proof of this (which is often the case where you might be subcontracted to another company), they will have your H1B transfer denied.
4. Fees Not Paid or Insufficient
This is quite self-explanatory. You need to pay the required filing fees for your H1B transfer to be approved. Make sure you have the most recent updated filing fees for an H1B transfer on hand as these get updated from time to time.
5. Employer Unable to Pay Prevailing Wage
To qualify for an H1B transfer, your employer must pay you the prevailing wage. The prevailing wage is the “average wage paid to similarly employed workers in a specific occupation in the area of intended employment”. If your employer can’t or isn’t willing to pay the prevailing wage, your H1B transfer will be denied.
6. Prior Violations of Immigration Law
If you or your new employer has violated immigration laws at any stage, you could also see your H1B transfer denied.
Violations of immigration law include a situation where you were out of status, you didn’t maintain the requisite H1B qualifications for your current H1B visa, or you’ve committed a crime while in the U.S.
7. Improper Delivery
This is simply where you send your application and payments to the wrong USCIS service center or where you use an un-bonded delivery service. You have to file through one of the official methods. Delivering by hand is, for example, not acceptable. Make sure you use the officially bonded delivery services, which include UPS, FedEx, or USPS.
What to Do if Your H1B Transfer is Denied
What you do after you have your H1B transfer denied depends on why your case was denied. You might be able to file a different I-129 or fix any mistakes in your previous application or include any documents that were found lacking.
Your denial letter may contain a statement that makes appealing your H1B transfer denial difficult. But you might be able to file a legal motion for it to be reopened or reconsidered. Speak to a qualified immigration attorney if this is the case.
Check out Stilt’s new H1B database to find an H1B sponsor in your profession or city!
- 6 Ways to Find an H1B Visa Sponsorship
- How to Change Jobs on an H1B Visa
- The Non-ECR Category: A Guide
- H1B Visa Stamping: H1B Visa Interview Documents and More
- Complete Guide to the H1B to Green Card Process
- What Are My Options for Change of Status Visa Stamping If I Am Already in America?
- Guide to the H2B Visa
- H1B Transfer: How To Change Jobs on an H1B Visa
Having your H1B transfer denied doesn’t have to be the end of the road. Keep all the most common mistakes in mind and try and avoid them when applying. If you’ve already received an H1B denial, consider seeing an immigration attorney to help you fix your mistakes or reopen your case. Don’t’ let your H1B transfer denial stand in your way of greater heights and new exciting opportunities.
H1B Transfer Denial FAQ
You might still have a few questions relating to your H1B transfer denial. We answer some of the most frequently asked ones below.
Can I Continue Working after H1B Transfer Denial?
No, you can’t continue working for your new employer after your H1B transfer has been denied.
You can start working for your new employer as soon as your petition is filed with the USCIS (your receipt number is proof of this). You can also work for your new employer the whole time while your application is processing until a final decision is made. If your application for H1B transfer is approved, you can continue with your job. But if your H1B transfer is denied, you must stop working for your new employer as soon as you receive the notification of denial.
If your H1B transfer is denied, you no longer have a valid H1B status to be lawfully employed. If you continue working, you run the risk of being found “out of status“.
Can You Get Your H1B Transfer Denied After LCA Approval?
Just because your Labor Certification Application (LCA) is approved does not mean your H1B transfer will be approved as well. The one is not contingent on the other. The LCA is adjudicated by the Department of Labor while your H1B transfer is adjudicated by the USCIS. Your H1B transfer can still be denied if your LCA is approved.
Is there an H1B Denial Grace Period?
If your H1B transfer is denied, you will have a grace period to find alternative employment or transfer to another visa status. Once your transfer is denied, you can remain in the U.S. until the departure date listed on your I-94 arrival/departure card.
If your employment is terminated before your validity period of your H1B is over, there is also a 60-day grace period. You can look for new employment in this period our change your status to a new visa. If nothing else works, you have until the end of your grace period to leave the U.S.