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H1B Transfer Denied? Your Next Steps

H1B Transfer Denied? Your Next Steps

If you and your family are already settled in the US under the H1B visa, and you’ve found a new challenge with a new job for a new employer, you need to transfer your visa to your new employer to safeguard your immigration status and permission to stay in the US.

But if your H1B transfer is denied, given what’s at stake, it will be important to understand your options and what the denial means for your status in the US.

 

What is an H1B transfer denial?

H1B transfer petitions can be denied for many reasons.

It’s important to distinguish between an H1B transfer rejection and denial. While rejections tend to be minor and easily corrected, denials are merit-based and require specialist advice to understand your options and next steps.

A rejected transfer application will relate to an initial appraisal of the application by USCIS, whereby the application documents are reviewed to ensure everything is there for the adjudicator to make a decision and that the correct processing fees have been paid. If the application is missing anything, it will be rejected.

If your application is complete and then proceeds to being processed and evaluated, if the adjudicator considers the application does not meet the H1B requirements for the US employer, the employee or the conditions of employment, it can be denied.

For example, failure to convince the adjudicator of the working relationship 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 will be dependent on the grounds for the denial.

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

Taking professional advice will ensure you have considered all factors before deciding how to proceed.

For example, you may be able to correct and refile your original application if has been rejected because of an application error (such as sending the application to the wrong department) or an issue with the fee. If the adjudicator has held the visa requirements have not been met, it may be more sensible for your employer to file a completely new application which specifically addresses the grounds for denial through evidence.

 

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.

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

By Nita Nicole Upadhye

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