You may already be living the American dream using your H-1b visa, but you have found another employer offering you an irresistible offer. You may be qualified to change jobs through an H-1b transfer but may be wondering what to do if it is denied. You can take options in this case or if your H-1b transfer is denied.

What is an H-1B Visa?

Holders of H-1B visas are permitted to change employers. The employer is not required to have complete control over an employee with an H-1B visa. The employee must, nevertheless, carry out their non-compete and contractual obligations.

Immigrants in the US looking for professional work are issued H-1b visa status. Employers can use it to hire foreign professionals in the US temporarily. To obtain it, both parties—the potential employee and the US employer—must abide by the rules set forth by the Department of Labor Standards.

Reasons Why Your H-1B Transfer May Be Denied

H-1B visa transfer

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There are many reasons why your H-1b transfer may be denied after going through the transfer process. Below are some common reasons why your H-1b transfer may be denied.

  1. Petitioner’s requirements

The petitioner in your H-1B transfer is your new employer. Your new employer must provide evidence demonstrating that it is a US-recognized organization. Additionally, it must demonstrate its capacity to recruit, compensate, and offer you enough specialty occupation work as an employee.

Your new employer has a long list of documents to submit, which include photographs of the office and a property lease. Your H-1B transfer will only be allowed if your petitioner can provide sufficient evidence.

  1. You need to gain specialized knowledge

H-1B approval requires specialized knowledge or a bachelor’s degree for the position to be considered a specialty occupation. You should demonstrate your specialized knowledge, which must be related to the job.

Also, you will have to provide a long list of proofs and evidence to show that you have specialized knowledge. Your experience letters from your former employers and your resume can be helpful. Your H-1B visa transfer will only be allowed if you demonstrate specialized knowledge.

  1. Insufficient proof of an employee-to-employer relationship

You must demonstrate that a good employee-to-employer relationship exists to avoid your H-1B being denied. Also, the petitioner must demonstrate that you will be under their management and control.

It is common for people who are subcontracted to another company to be denied an H-1B transfer if they cannot provide proof; this is often the case when people are subcontracted.

  1. Unpaid or insufficient fees

Having unpaid or insufficient fees is another reason why your H-1b transfer can be denied. You must pay the filing fees for your H-1B transfer to get approved.

The filing fees for an H-1b transfer are periodically updated, so ensure you have the most recent version.

  1. The inability of employers to pay the prevailing wage

Your petitioner or employer must be able to pay the prevailing wage for you to qualify for an H-1B transfer. The “prevailing wage” is the average wage given to similarly employed workers in the same occupation in the area where the job is intended.

If your employer is willing to pay or can meet your prevailing wage, then your H-1b transfer will be allowed.

  1. Previous violations of immigration law

You can also be denied your H-1B transfer if you or your petitioner have violated immigration laws in the past.

Immigration law violations include;

  • being out of status,
  • failing to maintain the necessary H-1b requirements for your existing H-1b visa, or
  • committing a crime while in the US.
  1. Improper delivery

Sending your payment and application to the incorrect USCIS service center is considered improper delivery. Using an unbounded delivery service is another possibility.

When filing, you have to do it through an official method. For example, it is not acceptable to have it delivered by hand. Ensure that you use bonded delivery services such as USPS, FedEx, or UPS.

What Are Your Options If Your H-1B Transfer Is Denied?

Immigration Visa in the USA

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There are steps you can take if your H-1b transfer is denied. Below are your options depending on the reason for your transfer being denied:

  • An alternative I-129 petition may be submitted on your behalf by your employer. It is recommended to seek the advice of an experienced immigration attorney to identify supporting evidence to challenge the prior transfer denial.
  • You should consider finding a new employer if yours won’t submit a petition on your behalf.
  • You can submit another transfer petition and request approval if your first one was rejected due to a payment issue or incorrect documentation, provided the error has been corrected.

Your denial letter likely contains a statement that makes it impossible for you to appeal your H-1b transfer denial. Nevertheless, you may still be able to file a legal motion for your case to be reconsidered or reopened.

  • Motion to reconsider: You can take up this option if you believe that the evaluating officer’s decision to deny your H-1b transfer was wrong.
  • Motion to reopen: This is another option you can choose in case you have new evidence. Taking it up this way means that you believe that the evaluating officer might make a different decision because of the new evidence.

Remember that without the assistance of a knowledgeable immigration attorney, you should not attempt the motion to reconsider or the motion to reopen.

Conclusion

If your H-1b transfer is denied, it does not mean there is nothing you can do. When applying for the transfer, ensure that you avoid making mistakes that could result in your application being denied. If you’ve already had your H-1b application denied, you should speak with an immigration lawyer to learn how to correct your errors or reopen your case.