What to do if your H1B Extension is Denied

Updated on April 10, 2024

At a Glance

  • H1B extension allows extension beyond the initial 3 years, up to a total of 6 years.
  • Reasons for extension denial include employer not meeting requirements, lack of specialized knowledge, insufficient proof of employer/employee relationship, unpaid or insufficient fees, inability to pay prevailing wage, prior immigration law violations, improper delivery, and impact of the “Buy American, Hire American” executive order.
  • Options after denial include employer appeal, refiling with the same or new employer, and transitioning to an F1 or B2 visa during COVID-19.

You may have applied for an H1B extension, yet you’re not so confident that it will be a successful attempt. Many people from all over the world want to experience the American dream, so they are trying their best to obtain an H1B visa. However, the government of the U.S. wants to make sure there are fewer H1B visa workers and that abuse on the H1B visa is reduced. The extension process is affected by the recent changes too, so what can you do if you have your H1B extension denied?

What Is an H1B Extension?

An H1B extension refers to the process of extending your visa. As an H1B visa worker, you have a period of 3 years during which you can stay in the U.S. and work. Once this period’s end approaches, you can apply for an extension, and thus extend the visa to a total of 6 years. Only 3 years can be requested on a given H petition, though.

An extension can be asked when the person wants to keep working and living in the U.S., or if they are planning to find new jobs or work towards a green card.

Top 8 Reasons for an H1B Extension Denial

Did you have your H1B extension denied? Well, this can happen for a few reasons. So, if you apply for an extension and it gets denied, it’s essential to know the reason. Here are some possible situations when your extension request may be denied.

1. Petitioner’s Requirements

More often than not, an H1B extension application is denied because the employer responsible for petitioning doesn’t meet the requirements. The employer needs to provide some proper documentation when petitioning, such as company financial statements, property lease information, tax documentation, and active contracts that prove enough specialty occupation work. Not to mention that the employer should also provide documents that prove they have an established location. Website printouts, licenses, brochures, and anything of the sort can prove it.

Many employers don’t meet the requirements because they seem like they don’t have an established U.S. company, they don’t seem real and any other issues. This is why documentation is needed to prove that the employer is real and operating. Lacking them will ruin the whole application.

2. You Lack Specialized Knowledge

Another reason why an H1B extension could be denied is that the employment offered doesn’t have a “specialty occupation” qualification. The employer has to prove that they have a bachelor’s degree or higher or at least is equivalent to the minimum particular position requirement. Basically, the employee must be able to prove the knowledge or skill possessed in that particular field related to the job.

The applicant also needs to get evidence of the resume of the employee, as well as experience letters from previous employers. These are necessary to increase the chances of having the extension accepted, or else there’s a risk of denial

3. Insufficient Proof of Employer/Employee Relationship

In order to have an H1B extension accepted, the employer needs to bring some proof of the relationship with the employee. Basically, they will have to show a work site or location where the H1B owner is going to work. But if the petition says that the employee will work at the client location, there will be a few concerns. USIC may be wondering if the H1B worker will actually be working for the petitioning employer, or the employer is acting a certain way only to get by the rules.

So, your employer will have to bring evidence that you will work and be “controlled” by the petitioning employer. Also, there needs to be proof that the subcontracting company will have no authority over you. In addition, there must be an H1B application submitted, as well as work contract agreements between the third-party worksite and petitioner.

4. Fees Not Paid or Insufficient

There are fees associated with the H1B extension, so if you don’t pay them or if you pay an incomplete amount, the request will be, of course, denied. Make sure to always check the amount of cash required for the extension, as it may change over time. The filing fee for the I-129 petition, for instance, went from $325 to $460, while the additional fees grew from $2000 to $4000.

5. Employer Unable to Pay Prevailing Wage

The employer must be able to pay the prevailing wage. If they don’t have money for it or simply don’t pay it, your extension will be denied. The Department of Labor says that the “average wage paid to similarly employed workers in a specific occupation in the area of intended employment is called a prevailing wage.” So, your employer needs to file the prevailing wage request and figure out the wage for your occupation in the country you live in.

6. Prior Violations of Immigration Law

Are there any immigration laws that have been violated by you or your employer? If the answer is “yes”, then your H1B extension will be denied. You have to consider working with an immigration lawyer to decide what to do to prevent a denial. Common reasons for the visa extension denial could include failure to maintain the H1B visa qualifications, employer fraudulently taking advantage of the immigration system, or committing a crime in the U.S.

7. Improper Delivery

In some situations, petitioners don’t send the payments and documents to the right service center. They make the mistake of using an un-bonded delivery service when filing. As such, you have to make sure all dates and signatures are checked before sending the paperwork. You should also verify the service center that you use. You need to use services like UPS, FedEx, or USPS. Make sure you don’t deliver by hand or through any unofficial delivery method.

8. Resulting from “Buy American, Hire American”

There has been a signing by Donald Trump on April 18, 2017, which was the “Buy American and Hire American” executive order. After this happened, USCIS was basically looking for reasons to deny H1B visa petitions.

Options When Your H1B Extension Has Been Denied

If your H1B extension got denied, there are some things that can be done to try obtaining the extension again.

Employer Appeal

One of the things that could be done is having the employer appeal on your behalf. Simply put, the employer you’re working for can choose to apply for MTR or Appeal against the USCIS decision.

However, this doesn’t guarantee an extension, which is why there’s a need for another extension petition. Keep in mind that just because an appeal can be made, it doesn’t mean that it will change the decision made by USCIS. Not to mention that it may take a few months to get a response to the appeal in the first place.

Refiling the Application with the Same Employer

Another thing that can be done is having the employer file for you whether for the same position or a different one. The latter is possible in case the employer has another position available. In case they only have the initial position, it will be a little easier and less time consuming because the same LCA can be reused. In case the petition receives approval this time, you may still have to get a new visa stamping and go out of the country to get it.

New evidence pieces could be added to the new petition to increase the chances of acceptance. It’s also recommended to use Premium processing to have a faster filing process. The employer could also request for your stay in certain situations.

Refiling the Application with a New Employer

You can also refile a petition with a new employer while maintaining the same position. It’s essential to start looking for a new job with a known vendor and ask whether they could take you in for the same position.

Filing with a new employer for a different position is possible too, but it will be a little more challenging, as you may have to leave the U.S. and apply for a visa transfer and extension.

What to Do If Your H1B Extension Is Denied During COVID-19

In case your extension is denied during the coronavirus pandemic, here is what you can do:

Transition from an H1B to an F1 Visa

You can transition from an H1B visa to an F1 visa. This is a method you need to consider if you don’t have a job anymore due to so many jobs being closed down. This is possible if you intend to attend a college or university on such a visa, thus improving your skills in the field you work in while we’re going through these difficult times.

Transition from an H1B to a B2 Visa

Switching from an H1B to a B2 visa is possible as well. If your H1B visa expires, you will still have a period of stay, typically of 60 days, before the visa expires. During that period, you can move to a B2 visa, and stay in the U.S. even while the application is pending. You just have to prove that you intend to leave the U.S. once the temporary stay period is over and that you reside in a different country.

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Conclusion

Having an H1B extension denied can be annoying, but you must know why it could happen and what to do in such a situation. Hopefully, this article explained everything properly for you.

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Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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