There are ten main reasons that the U.S. Citizenship and Immigration Services (USCIS) has given for its denial of H-1B applications for workers. These reasons could involve either employees or employers.
To avoid potential issues when applying for an H-1B work visa and keep the application process smooth, understanding what the petition will require can make sure that any problems are avoided from start to finish.
The Importance of Drafting a Good H-1B Petition
To draft a good H-1B petition, applicants need to have a good understanding of the industry, specific job requirements in place, and the various technical terms used in the position when describing certain tasks and duties. If an applicant fails to understand the job and what it entails, this could culminate in a weak petition even if the petition has the potential of being approved.
To help draft a better petition, keep in mind the following common reasons for denials following USCIS evaluation. Staying aware of all of the potential reasons for denials can assist with the petition drafting process. Even if all other requirements are met when drafting a petition, one weak area could result in a denial that leads to a lengthier process and the need to submit another petition.
1. Specialty Occupation
USCIS may deny an H-1B application if the petitioner failed to identify a position as a specialty occupation. Oftentimes, issues in this area occur with business or information technology positions in lesser-known occupations that USCIS doesn’t consider “Specialty Occupations” because of inadequate communication of job duties.
2. Beneficiary Qualifications
Applicants may fail to prove that a beneficiary is qualified to perform tasks and services in a specific specialty occupation.
3. Employee-Employer Relationship
Petitioners may neglect to establish that they had built a valued employer-employee relationship with the designated beneficiary by having the right to control the beneficiary’s work for the specific validity period requested.
4. Availability of Off-Site Work
The petitioner may have failed to establish that he or she has non-speculative and specific qualifying off-site assignments for the beneficiary, which would last for the duration of the validity period requested in the specialty occupation.
5. Availability of In-House Work
The petitioner may also fail to establish that they have specific and non-speculative assignments for in-house work for the duration of the validity period.
6. Maintenance of Status
Petitioners may also fail to establish that beneficiaries properly kept their status up-to-date.
7. Itinerary
Petitioners may not meet the specific itinerary requirement in place, which makes it necessary for petitioners to submit itineraries with petitions that require services to be performed in multiple locations. All itineraries are required to include the locations and dates of services to be provided.
8. AC21 and Six-Year Limit
Petitioners failed to establish that the beneficiary is eligible for AC21 benefits or could otherwise receive an H-1B extension as the visa reaches the six-year limit.
9. LCA Corresponds to Petition
The petitioners may not establish that they obtained a Labor Condition Application (LCA) that’s been properly certified, and they may also neglect to show that this LCA properly adheres to the requirements of the designated position and the petition’s specific terms.
10. Fees
Petitioners may not establish that they fully paid all fees pertaining to the H-1B.
Any of these reasons may be grounds for denial upon USCIS review, which makes it crucial to have a good petition in place.
Good petitions are now more important than ever as denial rates continue to increase. In fact, National Foundation for American Policy analyses of data around USCIS denials for H-1B employer petitions found that the denial rate saw a drastic increase to 32 percent from 6 percent from 2015. The analyses also discovered that the denial rate rose from 3 percent to 18 percent for individuals who are seeking extensions for H-1Bs.
With such high denial rates, it’s important to draft a good petition that meets all of the USCIS requirements for approval. Creating a checklist including all of the necessary aspects can help make sure that every element is included in the final draft.
Getting Additional Help with Drafting H-1B Petitions
For more help with drafting a petition, working with an H-1B attorney can increase an applicant’s chances of success. With a high-quality H-1B petition that displays a comprehensive understanding of what the job entails, applicants can minimize the risk of denials.
Even if a business immigrant visa applicant takes the time to cover all of the necessary elements in a petition, there may be some aspects that they miss during the drafting process that could hinder their chances of approval. Having a professional with experience in these matters review the petition and ensure that it’s valid will help avoid denial.
