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Top ten reasons for H-1B denials

The Chicago immigration attorneys of Zneimer & Zneimer PC urge employers to seek sound legal advice from experienced H-1B attorneys to avoid denials of approvable H-1B petitions.  Many cases involve information technology or business positions in new and emerging occupations grouped under the “all other” categories that fail to meet USCIS’s idea of “Specialty Occupation” requirement due to poor communication of the job duties.   When drafting a petition, it is important  to understand the industry, requirements, and the technical terms in order to explain what tasks the job involves, what knowledge the job requires, and why such knowledge is beyond the ken of a person that does not have an academic degree in a specific specialty.  Failure to understand the job itself results in a poorly drafted H-1B petition even though the petition was approvable.  HR departments that used to prepare their own H-1Bs now turn more and more to experienced attorneys to avoid the avalanche of denials.  Some heavy users of H-1B visas saw denials jump from 4% in 2015 to 40% in FY 2019  for H-1Bs for initial employment.
According to USCIS’s the top ten reasons for Requests for Evidence and subsequent denials are:

  1. Specialty Occupation. The petitioner did not establish that the position qualifies as a specialty occupation
  2. Employer-Employee Relationship. The petitioner did not establish that they had a valid employer-employee relationship with the beneficiary, by having the right to control the beneficiary’s work, for the duration of the requested validity period.
  3. Availability of Work(Off-site). The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.
  4. Beneficiary Qualifications.The petitioner did not establish that the beneficiary was qualified to perform services in a specialty occupation.
  5.  Maintenance of Status.The petitioner did not establish that the beneficiary properly maintained their current status.
  6. Availability of Work (In-house). The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.
  7. LCA Corresponds to Petition.The petitioner did not establish that they obtained a properly certified Labor Condition Application (LCA) and that this LCA properly corresponds to the proffered position and terms of the petition.
  8. AC21 and Six Year Limit. The petitioner did not establish that the beneficiary was eligible for AC21 benefits or was  otherwise eligible for an H-1B extension as it appeared that H-1B had hit the six-year limit.
  9. Itinerary. The petitioner did not meet the itinerary requirement, which requires petitioners to submit an itinerary with a petition that requires services to be performed in more than one location. The itinerary must include the dates and locations of services to be provided.
  10. Fees.The petitioner did not establish that they paid all required H-1B filing fees.

 

National Foundation for American Policy analysis of USCIS data in the H-1B employer data hub, reveal that denial rates for initial H-1B petitions on average jumped from 6% to 32% since 2015.  The denial rate is significant also for people who already have H-1B and seek to extend status.  For extensions, the denial rate increased from 3% to  18% of H-1B since 2015 for petitions extensions for “continuing” employment.

We subscribe to technical magazine and follow a number of industries.  We have filed numerous successful H-1B petitions, and can advise you whether or not the occupation meets the statutory and regulatory H-1B requirements.  The core of our success is in our investigation and understanding of the industry and its requirements.  If you need experienced H-1B immigration attorney, contact our Chicago immigration law firm Zneimer & Zneimer PC.