H-1B Transfer Denied — What to Do Explained

Navigating the aftermath of an H-1B transfer denial requires a clear understanding of the reasons behind such decisions and the subsequent steps to uphold your legal status in the United States. When confronted with a denial, comprehending the legal basis and common reasons for rejection is essential for determining the appropriate response strategies. This guide delves into the intricacies of H-1B transfer denials, including the legal grounds, common rejection reasons, response strategies, and maintenance of legal status. Equipping yourself with this knowledge empowers you to navigate this challenging situation effectively, ensuring compliance with immigration laws and safeguarding your immigration status.

Understanding H-1B Transfer Denial

When your H-1B transfer is denied, it can be a significant setback. It’s crucial to comprehend the legal grounds for such denials and the common reasons behind them to navigate this situation effectively.

Legal Basis for Denial

The United States Citizenship and Immigration Services (USCIS) is responsible for the evaluation of H-1B transfer petitions. According to the law, if the requirements for the H-1B visa are not fully met, USCIS issues a denial letter. This may state the specific reasons for denial based on the stipulations outlined in the Immigration and Nationality Act (INA) and the Code of Federal Regulations (CFR).

• Errors on the petition
• Mistakes in documentation
• Failure to meet the requirements for a specialty occupation

Common Reasons for Transfer Denial

The denial rate for H-1B transfers has been subject to change over the years and knowing the common pitfalls can help you avoid them. Here are some of the predominant reasons for transfer denial:

• Lack of specialized knowledge: Your job must require specialized knowledge, and you must prove that you possess such qualifications.
• Inadequate employer-employee relationship: USCIS seeks an authentic employer-employee relationship. Insufficient proof could lead to denial.
• Wage issues: Your salary must meet or exceed the prevailing wage for the position in the given geographic location.

If your H-1B transfer is denied, you have the option to file an appeal or a legal motion. These are formal processes to contest the decision made by the USCIS. However, it is important to do so within the timelines and guidelines set by immigration law.

Navigating After a Denial

When your H-1B transfer is denied, it’s crucial to quickly understand your options for response and how to maintain your legal status in the United States. Time is of essence in taking corrective actions to ensure compliance with immigration laws.

Response Strategies to Denial

Upon receiving a denial, you should promptly review the denial notice, as it provides critical information regarding the reasons for denial and guidance on possible next steps. One common reason might be the insufficient evidence of an employer-employee relationship or issues with the Labor Condition Application (LCA). There might also be specificities in the paperwork that led to the denial, such as inconsistencies in the offer letter or job offer details.

• Appeal or Motion: You can file an appeal or a motion to reopen or reconsider the decision with United States Citizenship and Immigration Services (USCIS). Do this if you believe there has been an error in the decision or if you can provide new information.
• Refile Petition: Your petitioning employer may correct the deficiencies noted in the denial and submit a new H-1B transfer petition.

Maintaining Legal Status

To avoid being out of status, you must take immediate steps after a denial:

• Evaluate your I-94: Check if your I-94 record remains valid. A valid I-94 allows you to stay in the US legally, but not to work.
• Consult an Immigration Attorney: Legal guidance is crucial. An expert in immigration law can help you determine if you can file for an appeal, need to change your visa status, or must leave the country.

Note: If you continue to work without a valid H-1B status, you will be out of status, which can have negative implications on future immigration applications. Always ensure that your actions are in line with the immigration law and uphold the terms set by your visa.

H-1B Transfer Denial Case Study and Guidance

For H-1B workers looking to switch employers, having their transfer petition denied can be devastating and filled with uncertainty about next steps. One person outlined their difficult situation:

“My H-1B transfer petition from my original employer to a new company was denied. I was initially on OPT, then my H-1B was approved for a change of status effective October 1st. However, I was laid off before October 1st by my original H-1B sponsor. When my new employer filed for the transfer petition in September, it got denied.”

According to insights from the discussion, there are a few potential reasons this denial likely occurred:

H-1B Status Never Took Effect

“If you were laid off before October 1st, you were never actually on H-1B status,” one person noted. The original H-1B petition approval was essentially nullified by the termination pre-October 1 start date.

Lack of H-1B Employment Proof

“You need to file a brand new H-1B petition. For a transfer, you need paystubs and employment verification from the original H-1B employer, which you didn’t have,” another mentioned.

Overall, the crux of the issue is that H-1B transfers require proof the worker was actively employed under an approved H-1B petition. Getting terminated before that H-1B start date meant the petitioner lacked the necessary qualifying employment history.

So what are the options in this situation? A few suggestions that came up:

Apply for STEM OPT Extension

If the original change of status was approved but never took effect, going back on STEM OPT may be possible if the OPT period is still valid. However, some noted this may require the original H-1B sponsor to officially withdraw the approved petition.

Refile in This Year’s H-1B Lottery

With options like STEM OPT closed off, many felt the best path is likely to have the new employer re-enter the H-1B lottery this year and start fresh with a new petition filing if selected.

Consult an Immigration Lawyer

Above all else, the overwhelming advice was to speak to experienced immigration lawyers, either independently or through the new employer. They can fully assess the specific situation and legal options.

While immensely frustrating, an H-1B transfer denial doesn’t necessarily mean the end of the road for staying in the U.S. Carefully evaluating fallback plans like STEM OPT or playing the lottery again may identify the best available path forward until a new H-1B petition succeeds.

Frequently Asked Questions

Navigating the complexities of the H-1B visa transfer process can be challenging. Here are answers to some common queries that can help clarify your next steps after a denial.

What are common reasons for an H-1B transfer denial?

Your H-1B transfer may be denied for various reasons including incomplete documentation, the job not qualifying as a specialty occupation, or questions about employer-employee relationship. Understanding the top rejection reasons can help you avoid common pitfalls.

Can I return to my previous employer if my H-1B transfer is denied?

Yes, returning to your previous employer is a possibility if your H-1B status with that employer is still valid and has not been revoked. However, you need to ensure that they have not filled your position and are willing to take you back.

What are my options if my H-1B visa stamping is rejected?

If your H-1B visa stamping is rejected, you may review the reasons for denial, correct any issues, and reapply. Alternatively, you may explore other visa options based on your eligibility. Consulting an immigration attorney is often beneficial in such cases.

What is the typical approval rate for H-1B visa transfers?

The approval rate for H-1B visa transfers varies by year. Recent trends show that the approval rate has seen improvements compared to past years.

In case of an H-1B visa denial by the consulate, can I reapply?

Yes, if your H-1B visa application is denied by the consulate, you can reapply. Before reapplying, it’s important to address the reasons for the previous denial to increase the likelihood of approval in your subsequent attempt.

What is the grace period allowed after an H-1B transfer has been denied?

Following a denied H-1B transfer, you may have a 60-day grace period or the time until your I-94 expiration, whichever is shorter, to change your status or make preparations to leave the United States.

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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