Based on the data from USCIS, reports show that the denial rate for H-1B visa transfer petitions has increased in recent years, including in FY2023.
Opportunities can knock on anyone’s door at any time. It may so happen that you’re living your American dream and several other prospects are awaiting your response. Or, you’ve already experienced transfer denial.
In that case, you’re responsible for wielding your future wisely by transferring the job. However, in the worst situation, your transfer may be denied. We may help you to be ready for any circumstances.
Table of contents
What is H1B Visa Transfer?
Changing your employer while continuing to dwell on your H-1B status is known as an H-1B visa transfer.
You can switch to a new employer in the United States under the H-1B rule, but you must first meet the labor and immigration requirements through the H-1B transfer process before beginning your new job.
It’s a meticulous process that can take several months to complete, and it’s crucial to be informed of the H-1B visa transfer process to avoid any rejection.
Difference Between an H1B Denial and an H1B Rejection
Before getting into the pool of reasons for H-1B visa transfer denial, you must understand the thin line of difference between H-1B Denial and H1B Rejection.
H1B Rejection happens when your application doesn’t meet the minimum eligibility criteria for the H1B visa. Your application will be rejected if you don’t meet the basic requirements such as education, and work experience, or if you fail to provide the necessary documentation.
H1B Denial occurs when your application meets the basic eligibility criteria, but the USCIS has determined that you don’t qualify for the visa. This can happen when there is something wrong with your application, such as inconsistencies or inaccuracies, or if the USCIS determines that you don’t possess the necessary skills or qualifications for the position you’re applying for.
In the event of a rejection, the mistake is naturally just a technical one and can be fixed with ease. Once fixed, you’re able to resubmit your application. If your case is denied, it means that the officer doesn’t believe your case has the qualifications for an H1B transfer. In the case of a denial, you’ll need to dig into other options to work around it. Consulting an immigration attorney is recommended for guidance on what steps to take in the event of a denial.
But have you ever wondered why is a H1B transfer denied?
Seven Reasons Your H1B Transfer Was Denied
The following are the important reasons for the denial of the H-1B transfer that affects both the petitioner (employer) and the beneficiary (employee):
Requirements of the Petitioner’s (U.S. Employer)
Frequently, H-1B employee petitions get rejected because the submitted evidence is not enough to prove that the employer in the United States who is filing the petition is a functioning and established entity with the capacity to hire, compensate, and offer specialized job opportunities to the H-1B employee.
To guarantee an affirmative outcome, an employer must furnish tax records, financial statements, active contracts proving specialized work, as well as property lease and premises photos. This will confirm that the employer is a legitimate business with adequate space to carry out the required work.
The Employee’s Lack of Specialized Knowledge
One of the vital prerequisites for acquiring H-1B approval is submitting concrete evidence that the offered position is a “specialty occupation” that necessitates either a bachelor’s degree or expertise in a particular area. This is a two-part assessment that entails the candidate presenting proof of possessing a bachelor’s degree in the relevant field or possessing specialized knowledge.
Moreover, the employee needs to show that their specific expertise is pertinent to the position they are applying for. Besides, it is advisable to incorporate supporting documents such as resumes and recommendation letters from previous employers to lessen the probability of being rejected or asked to provide further evidence.
Insufficient Proof of Employer/Employee Relationship
When an employer sponsors an H-1B worker, they must choose a specific work site where the worker will be based. If the worker will be working at a location other than the designated work site, the employer must demonstrate that they will be responsible for managing and controlling the worker, while the third-party worksite has no authority over important aspects such as hiring, firing, or salary payment.
To ensure that your H-1B application is not denied due to insufficient proof of a valid employer/employee relationship, it’s important to include specific evidence in your application. This evidence should include work contract agreements between your employer and any third-party worksites involved in your employment. These contracts should clearly state that your employer has full control over your employment, including hiring, firing, and payment of salary. Additionally, you may want to submit information about the type of work you will be doing and pay statements that show a clear employer/employee relationship between you and your employer. This will help demonstrate the validity of your H-1B application.
Inadequate Fees Filed
Being aware of the latest laws and regulations can be critical in evading unanticipated filing fees and potential barriers that could cause delays or even result in denial of your H-1B transfer. To begin with, note that the I-129 petition has a primary filing cost of $460. Furthermore, there is a fee of $4,000 for specific H-1B petitions under Public Law 114-113, but only if you’ve over 50 employees, with more than half of them being H-1B visa holders.
H-1B Fees to be paid
USCIS Anti-Fraud Fee: $500 (disbursed by the employer)
Basic Filing Fee: $460 (disbursed by the employer)
ACWIA Education and Training Fee: $750 if less than 25 employees; $1,500 if more than 25 employees (disbursed by the employer)
Attorney Fee: Variable
Employer Unable to Pay Prevailing Wage
According to the Department of Labor, prevailing wage refers to the average pay that workers in a specific occupation receive in the area of intended employment. To determine the prevailing wage for your occupation in your county, employers often submit a request to the National Prevailing Wage Center or consult the Online Wage Library.
The prevailing wage is the average pay that workers in a particular occupation receive in the area where they work. It is essential to note that if your employer fails to pay this wage, your H-1B transfer may be rejected. This is to ensure that your wages do not negatively impact the wages and working conditions of other workers in your region.
Past Violations of Immigration Law
Any breaches of immigration laws by you or your employer can result in the denial of H-1B transfers or extensions, even if your original petition was approved. This can happen if you’re deemed “out of status,” if you’re no longer working in a specialty position related to your degree if you’ve committed a crime in the US that invalidates your immigration status, or if your employer has fraudulently exploited the immigration system or broken immigration laws.
Petitioners often make mistakes when filing for an H-1B transfer, such as sending the documents and payments to the incorrect service center or using an un-bonded delivery service.
To prevent these errors, it’s important to double-check all dates and signatures and confirm your assigned service center. Additionally, refrain from delivering the documents by hand or through any unofficial methods. Always use one of the officially bonded delivery services, such as UPS, FedEx, or USPS.
H-1B Transfer Procedure
When it comes to an H-1B visa, the application process is very similar to that of applying for an H-1B visa initially, with the only difference being that there is no visa cap or lottery to worry about. If you tally the numbers of one year, less than 85,000 H-1B visas are granted to cap-subject petitions, but an H-1B transfer has no such restriction.
The steps involved in applying for an H-1B transfer are mentioned below:
Receive a Job Offer
To apply for a transfer, you must have a current employer in the U.S. and a job offer from another U.S. employer. If you wish to accept the new job, you can initiate the H-1B visa process. Having a job offer is a mandatory requirement to transfer to another employer.
The Employer’s Responsibility to Complete the Labor Condition Application (LCA)
U.S. companies are strictly required to obtain a Labor Condition Application (LCA) before employing H-1B workers. To secure the LCA, the employer must apply to the U.S. Department of Labor by completing Form ETA 9035E. This form serves as evidence to the government that the employer engages legal workers and guarantees fair treatment of foreign workers by paying them the mandated wages and providing them with a safe work environment.
The Employer Filing I-129 Form
As the employer receives LCA authorization, they need to submit an I-129 form to the USCIS. After the petition is received, a receipt number will be sent to both the employer and employee, hence, they’ll be authorized to start working for the new employer. After the approval of the petition, both parties will obtain an I-797 form which serves as evidence that the employee is legally authorized to work for that specific employer.
Moreover, both the employer and employee must also submit an I-19 form, also known as the Employment Eligibility Verification form, to the USCIS. This form is essential to substantiate the identity and employment eligibility of individuals hired in the United States.
H-1B Transfer Documents to Submit to the USCIS
The documents to be submitted to the USCIS for H-1B transfer are cited below:
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
Copy of qualifications (i.e., degrees and certificates)
Copy of paystubs (2 or 3 previous paystubs)
Copy of tax returns, if applicable
Copy of updated resume
Copy of state license (for medical practitioners)
Please note that you’re not supposed to file another DS-160 form if you possess an H-1B visa. Also, may take around 10 days to complete the submission process and receive a response from USCIS after all documents have been submitted and fees have been paid.
To sum up, it’s essential to take into account all the aspects of H-1B visa transfer before making a decision or taking any decision. To ensure an easy transfer, consult an attorney who has experience and expertise in this field like ours. Contact us, at H1Bvisajobs.com, for more information.
Frequently Asked Questions
Can You Get Your H-1B Transfer Denied After LCA Approval?
It’s possible to have your H-1B transfer denied even after your LCA has been approved. The LCA approval only verifies that the job offer meets the prevailing wage and working conditions standards set by the Department of Labor (DOL).
However, USCIS may still deny your H-1B transfer if it discovers that you or your prospective employer don’t meet the eligibility criteria or that the job does not qualify as a specialty occupation. It’s inevitable to ensure that all the required documentation and information are provided with no errors made on your side to increase the probability of a smooth and successful H-1B transfer.
Can I Continue Working after H-1B Transfer Denial?
No. After the denial of your H-1B transfer, you cannot continue working for the new employer. You’ve to stop working immediately and leave the country unless you’ve a valid visa status that permits you to stay and work in the US. Your previous H-1B status may still be valid, but you’ll need to continue working for your previous employer unless you’re able to find another employer who is willing to sponsor your H-1B visa. It’s important to consult with an experienced immigration attorney to discuss your options and confine to the best course of action in your specific situation.
Do I need to get permission from my current employer to transfer?
Oftentimes, it’s recommended to inform your present employer about your intention to transfer to a new company. Nevertheless, whether you need to ask for permission or not depends on your current employment contract and company policies. It’s best to consult your HR or a supervisor to understand the process and requirements for transferring. It’s advisable to be transparent and professional throughout the process to maintain positive relationships and avoid any legal issues.
Can I submit the new H-1B transfer petition to USCIS myself (as the employee)?
No, the new employer is supposed to do it.
What date can I start working with the new employer?
You can start working with your new employer as soon as your H-1B transfer petition is approved by USCIS. However, if you’re currently employed by another company on an H-1B visa, you must wait until the transfer is approved before starting work with the new employer. Kindly note that you can’t work for the new employer until the transfer has been approved, even if you’ve already submitted your application.