H-1B Transfer Denial 101, and How to Fix IT?

Background

President Trump and his allies have been a critic of the H-1B visa, claiming it has been abused by employers and resulted in lower wages for American workers. His Administration has now imposed a temporary ban on visas for foreign workers in an attempt to boost employment for U.S. workers laid off over the COVID-19 pandemic. In reality, Trump has exploited the situation to clamp down on legal immigration. A National Foundation for American Policy analysis of USCIS data found that the denial rate for H-1B visas stood at 6 percent halfway through Obama’s second term. Since Trump took office, it increased steadily, reaching 24 percent FY 2018 and 30 percent by FY 2020.

What is H1B Transfer?

• An H-1B visa transfer is a process of changing from one employer to another while still on current H-1B status
• The H-1B rule allows employees to accept a job offer from another employer in the United States during their stay
• However, you cannot start the new employment without first satisfying the labor and immigration requirements through H-1B transfer processing
• The procedure can take several months, and you need to complete it carefully to avoid denial
• The fundamental difference between an extension and new H1B is the extension is cap exempt and new H1B is not
• As many people as are qualified can transfer their H-1B visas every year

When Can You Get an H-1B Visa Transfer?

• When you get a new employment offer from a US-based employer
• At the time of transfer, you should have current employment in the USA
• if you wish to take the new job, you can then initiate the H-1B visa process
• You cannot transfer to another employer without having a job offer

Do I Need a New Labor Condition Application (LCA)?

• Yes, your employer needs to file a new LCA for your job
• To get the LCA, the employer needs to send an application to the U.S. Department of Labor by filling form ETA 9035E.
• This document shows the U.S. government that the employer hires legal workers
• It also guarantees that the employer treats the foreign workers fairly by paying them the required wages and providing them a suitable working environment

When Can I Start Working for the New Employer?

• After getting LCA authorization, the employer should submit an I-129to the USCIS
• Once the USCIS receives the petition, a receipt number will be sent to both the employer and employee
• After receiving the number, the employee can start working for the new employer
• Both parties will get the I-797 form when the petition is approved
• I-797 is proof that the employee is legally permitted to work for that particular employer
• The employer and employee have to file an I-19—also called the Employment Eligibility Verification form—to the USCIS
• This form is to verify the identity and employment authorization of persons hired in the U.S.

What are the Required Documents for H-1B Transfer?

The applicant should submit the following documents to the USCIS:

• Copy of the offer letter issued by the employer
• Copy of passport
• Copy of your current H-1B visa
• Copy of form I-94
• Copy of I-797
• Copy of social security card
• Copies degrees and certificates
• Copy of paystubs (2 or 3 previous paystubs)
• Copy of tax returns, if applicable
• Copy of updated resume
• If you are a medical practitioner, you will also need a copy of state license

What are the Common Reasons for H-1B transfer Denials?

There could be various reasons, your H-1B transfer can be denied by the United States Citizenship and Immigration Services (USCIS)

Some of the common reasons for denials that affect both the petitioner (employer) and the beneficiary (employee) are as follows:

1. The Petitioner’s (U.S. Employer) Requirements

   • Petitions for an H-1B employee are denied based on insufficient submissions demonstrating that the petitioning United States employer is an established and operating entity in the United States
   • It has the ability to hire, pay and provide sufficient specialty occupation work to the H-1B employer
   • It is important for an employer to provide tax documentation, company financial statements, active contracts that demonstrate sufficient specialty occupation work, property lease information, and photographs of the premises

 

2. The Employee’s Lack of Specialized Knowledge

• A key requirement for H-1B approval is providing sufficient proof that the offered position is a “specialty occupation” that requires a bachelor’s degree or an employee to have “specialized knowledge.”
• This is a two-prong test that requires the beneficiary to provide evidence that he or she possesses a bachelor’s degree in the field of employment (specialized knowledge)
• In addition, the employee must demonstrate that the specialized knowledge he/she possesses is directly related to the job offered

3. Insufficient Proof of Employer/Employee Relationship

• As per the new H1B policy memo, USCIS will consider an H1B Sponsor to have an employer-employee relationship, if they meet one of the four things – Hire, Pay, Fire, Supervise or Control the work
• Now, with the new guidance, there is no need to submit detail client letters and documentation
• You will only need to submit the LCA
• Job offer letter or written agreement of the job offer between H1B sponsor and the employee

4. Insufficient Fees Filed

   • Recent changes to the filing fees can easily catch you off guard and result in getting your H-1B transfer denied
   • Keeping up to date with the current laws and regulations can help you prevent any unnecessary delays or roadblocks.
   • Firstly, it is important to note that the basic filing fee for the I-129 petition is still $460 until October 2nd, 2020
   • The current edition of Form I-129, dated 01/27/20
   • USCIS will accept the 01/27/20 edition of this form if it is postmarked before Oct. 2, 2020.
   • USCIS will not accept the 01/27/20 edition if it is postmarked on or after Oct. 2, 2020.
   • There is has been numerous proposed changes to the I-29 form, you can get all the changes listed here

5. Employer Unable to Pay Prevailing Wage

   • If your employer is unable or unwilling to pay this wage, then you will get your H-1B transfer denied
   • Your wages must not be detrimental to the wages and working conditions of other workers in your area
   • Employers usually file a prevailing wage request to the National Prevailing Wage Center or use theOnline Wage Libraryto find out what the prevailing wage is for your occupation in your county

Past Violations of Immigration Law                                                                                                                                                                       

Any violations of immigration law on the part of either you or your employer can cause any transfers or extensions to be denied. Examples of Violation of Immigration Laws Could be:

• You have been considered “out of status”
• You have not maintained the qualifications for an H-1B visa (e.g. no longer working in a specialty position related to your degree)
• You have committed a crime in the United States that makes your immigration status void.
• Your employer has fraudulently taken advantage of the immigration system or has otherwise violated immigration law

7. Improper Delivery

   • Some of the more common mistakes that petitioners make when filing for an H-1B transfer is sending the documents and payments to the wrong service center or using an un-bonded delivery service
   • Be sure to check all dates and signatures as well as your assigned service center
   • Always use one of the officially bonded delivery services such as UPS, FedEx, or USPS.

What To Do After Denial?

If your petition for H-1B transfer is denied, there are several steps that can be taken to fix this issue, it depends on the reason for the denial

• Your employer can file a different I-129 petition on your behalf
• In order to find supporting evidence to subvert the previous transfer denial, it is best to seek the counsel of a reliable immigration attorney.
• If your transfer petition was denied because of improper documentation or a payment problem, you may be able to refile and seek approval provided that the mistake has been fixed
• If your employer will not file another petition on your behalf, you may want to consider seeking an employer who will file.

You May Also be Able to File a Legal Motion to Have Your Case Reopened or Reconsidered.

1. Motion to reopen– this is used when new evidence has come to light and you believe that, if the evaluating officer were to reopen your case with this new evidence, a different decision might be made.
2. Motion to reconsider– this is only used if you believe that the evaluating officer was wrong in his or her decision to deny your H-1B transfer

Is there a Grace Period for Denial of Transfer?

• If you are attempting to transfer your petition and your transfer is denied, you will have until the departure date on your I-94 arrival/departure card
• If your employment is terminated before your H-1B validity period is over, you will have a 60-day grace period with which to find new employment, change your status to a new visa, or leave the country
• Avoid being “Out of Status”, as it has long term implication to your future VISA approvals

How Can We Help?

• In most cases, USCIS will provide a request for evidence (RFE) prior to adjudicating an application for H-1B transfer
• This allows the employer to correct the problems or provide the evidence requested by USCIS.
• RFE will contain a list of requested documents in addition to a deadline for submission
• Failure to provide the requested evidence or failure to respond within the allotted time-frame will result in a denial of the H-1B transfer application.
• It is important that applicants and petitioners for H-1B transfers consult with a reliable prior to filing an application for transfer or responding to a Request for Evidence.

our office will be happy to analyze your case’s specifics and provide some suggestions, as every situation is different.

Schedule a call at 469-994-9407  or contact us using the form.