H-1B Transfer Denied: Top Rejection Reasons & Alternatives
If you have submitted a petition for H-1B visa transfer, you may be worried that it will be denied. While working alongside a qualified attorney can help alleviate these fears, it helps to know the possibilities. There are numerous contributing factors for getting your H-1B transfer denied by the United States Citizenship and Immigration Services (USCIS).
A. The Department of Homeland Security (DHS) has posted a final rule (on 01/30/2019) amending regulations governing H-1B cap-subject petitions, including those eligible for the master’s degree exemption. It reverses the order by which the USCIS selects H-1B petitions under the H-1B regular cap and the master’s cap (advanced degree exemption).
B. The premium processing suspension ended on January 28, 2019. This means that premium processing will only be available to H-1B petitions filed for the FY 2019 cap. There is no announcement regarding premium processing for the 2020 cap so far except that the suspension will continue for all H-1B petitions except those for the 2019 season.
Some of the common reasons for denials that affect both the petitioner (employer) and the beneficiary (employee) are as follows:
1. The Petitioner’s (U.S. Employer) Requirements
Often times, petitions for an H-1B employee are denied based on insufficient submissions demonstrating that the petitioning United States employer is an established and operating entity in the United States with the ability to hire, pay and provide sufficient specialty occupation work to the H-1B employer. For H1B Visa Process Visit UT Evaluators
In order to avoid a negative adjudication, it is important for an employer to provide tax documentation, company financial statements, active contracts that demonstrate sufficient specialty occupation work, property lease information and photographs of the premises.
A property lease and photographs will demonstrate that the U.S. employer is an established operating entity and that there is sufficient work space to accommodate and complete the specialty occupation.
2. The Employee’s Lack of Specialized Knowledge
A key requirement for H-1B approval is providing sufficient proof that the proffered position is a “specialty occupation” that requires a bachelor’s degree or an employee to have “specialized knowledge.” This is a two-prong test that requires the beneficiary to provide evidence that he or she possesses a bachelor’s degree in the field of employment (specialized knowledge).
In addition, the employee must demonstrate that the specialized knowledge he/she possesses is directly related to the job offered.
Furthermore, in addition to providing proof that the employee is the recipient of a bachelor’s degree, it is recommended that applications be supplemented with evidence of the employee’s resume and experience letters from previous employers to avoid unnecessary denials or requests for evidence.
3. Insufficient Proof of Employer/Employee Relationship
An H-1B employer is required to designate a work site or location where the H-1B beneficiary will work. If an employee will be working at an off-site location, USCIS requires the employer to provide proof that the H-1B employee will be managed and “controlled” by the Petitioning Employer and the subcontracting company (third party worksite) shall have no authority over (hire, fire, payment of salary) the H-1B beneficiary.
In order to avoid a denial based on a lack of proof demonstrating a valid employer/employee relationship, you should submit an H-1B application with the following proof/evidence: Work contract agreements between the H-1B petitioner and third-party worksite.
These contractual agreements must clearly articulate that the petitioning employer shall have sole control (hire, fire, payment of salary) of the H-1B beneficiary. Additional evidence can include but not be limited to: information about the type of work to be completed and pay statements directly from the petitioning employer to the beneficiary – establishing a clear chain of command and employer/employee relationship.
4. Insufficient Fees Filed
While this may seem self-explanatory, recent changes to the filing fees can easily catch you off guard and result in getting your H-1B transfer denied. Keeping up-to-date with the current laws and regulations can help you prevent any unnecessary delays or roadblocks.
Firstly, it is important to note that the basic filing fee for the I-129 petition has increased from $325 to $460. Any transfer petition filed after December 23, 2016 without sufficient payment will be denied.
It is also very important to note that the relatively recent Consolidated Appropriations Act of 2016 (Public Law 114-113) has increased the additional H-1B fee from $2,000 to $4,000. This fee only applies if you employ more than 50 employees where more than half are H-1B visa holders.
5. Employer Unable to Pay Prevailing Wage
The Department of Labor defines the prevailing wage as the “average wage paid to similarly employed workers in a specific occupation in the area of intended employment.” Employers usually file a prevailing wage request to the National Prevailing Wage Center or use the Online Wage Library to find out what the prevailing wage is for your occupation in your county.
If your employer is unable or unwilling to pay this wage, then you will get your H-1B transfer denied. This is because your wages must not be detrimental to the wages and working conditions of other workers in your area. For H1B Visa Process Check here
6. Past Violations of Immigration Law
It goes without saying that, while your original H-1B petition may have been approved, any violations of immigration law on the part of either you or your employer can cause any transfers or extensions to be denied.
This can be because :
A. You have been considered “out of status”
B. You have not maintained the qualifications for an H-1B visa (e.g. no longer working in specialty position related to your degree)
C. You have committed a crime in the United States that makes your immigration status void.
D. Your employer has fraudulently taken advantage of the immigration system or has otherwise violated immigration law.
If you believe that this may be an issue concerning your case, it is very important to work closely with your immigration attorney to determine the best steps to take to help prevent getting your H-1B transfer denied.
7. Improper Delivery
Some of the more common mistakes that petitioners make when filing for an H-1B transfer is sending the documents and payments to the wrong service center or using an un-bonded delivery service.
To avoid this, be sure to check all dates and signatures as well as your assigned service center. You should also refrain from delivering the documents by hand or through any other unofficial method. Always use one of the officially bonded delivery services such as UPS, FedEx, or USPS.Tags: H1B Visa