An unfortunate fact about the current H-1B climate is the historically high asking for evidence ("RFE") and denial rates for H-1B petitions.  Government information and research by many organizations (come across National Foundation for American Policy (NFAP) analysis) have shown historically high H-1B denial rates – with some get-go-time H-1B petitions having a denial charge per unit of 32% compared to half-dozen% just iv years agone.  Our firm has been very active in not only helping petitions prevent such denials but likewise in helping with executing post-denial strategies.  This article seeks to outline practical options and strategies for dealing with an H-1B denial and highlight the different strategies and options between cap denials and all other H-1B denials.

Agreement the Reason for Denial and Beneficiary Condition Options

One of the first key steps post-obit an H-1B denial is to understand the verbal reason for the denial.  USCIS adjudicators rely on boilerplate denial templates; unfortunately, and particularly over recent months, adjudicators have started to event denial decisions with niggling or no caption equally to the verbal and specific reasons for a denial.  In practical terms, a denial letter can be several pages long, with 99% of it beingness standard boilerplate language, including elaborate references to case precedent, just with only sentence or two of actual case-specific language.

The outcome is that petitioners and their attorneys are frequently left making educated guesses as to what may be the verbal reason for a denial based on reviewing the initial filing and whatsoever RFE responses.

Among the more common denial reasons are specialty occupation (see our alert on this topic), end customer documentation including right of control and/or availability of work at the end client worksite, and educational qualifications of the beneficiary including non-accredited/for-profit universities.

Another key aspect to clarify immediately after a denial (ideally this should have been considered prior to a denial being issued) is the beneficiary'due south status options for those who are in the U.South.  H-1B beneficiaries applying for their start H-1B under the annual "cap" are frequently on F-1 educatee, L-ane or Fifty-2/H-4 dependent status and may be able to independently continue to remain in the U.S. despite the denial only some may crave firsthand steps such every bit status extensions or similar.  Come across our article on alternative H-1B visa options.

Important Reminders about "Appeal"

We use the term "appeal" in the context of H-1B petitions to hateful filing an I-290B, Find of Appeal or Movement, seeking a Motion to Reopen or a Motion to Reconsider ("MTR") a denial decision past USCIS.  Most frequently this is the side by side footstep to be followed post-obit an H-1B petition denial and the term "appeal" used in this article refers to the I-290B process.

Filing of an MTR appeal does not grant condition or otherwise keep the H-1B "pending" while the entreatment is pending.  Just if the entreatment is successful and the MTR approved (denial reversed, H-1B petition approved), and then the H-1B beneficiary gets status blessing frequently with the validity dates noted in the actual H-1B petition.

Also, an MTR entreatment must be filed within 33 days of the denial decision (or thirty days if denial determination received by fax or electronic mail).  This makes for a very fourth dimension-sensitive procedure especially since an MTR appeal should ideally include a substantial brief to outline in particular why USCIS was wrong in denying the case or to provide new facts or data.

H-1B Cap Petitions – Appeal But Choice

For denied H-1B cap petitions filing an "appeal" is the only choice (other than giving up and perhaps waiting until the next H-1B cap "flavor") assuming the H-1B cap has been reached and closed for the fiscal year (which has been the example for the previous many years).

When nosotros counsel H-1B employers who have received a cap denial, after having analyzed the reasons for deprival, we oft emphasize that an appeal is the only viable selection to effort to get an H-1B cap petition approved within several months.  The alternative to wait until the following April to file a new H-1 cap petition, chance under the random lottery and so hope for an approval with a start date of the post-obit October 1st – this means having to await 12, perhaps more, months for a chance for an H-1B approval.

H-1B Extensions, Amendments or Transfers – Entreatment vs. Refiling

H-1B petitions seeking extension, subpoena or transfer certainly tin can and should consider filing an appeal.  Just in many cases in that location may be a faster alternative to resolving the problem caused by the denial.  In the vast majority of cases, the H-1B beneficiary has already been counted under the H-1B cap in the past and is, therefore, cap-exempt for subsequent filings.  This means that every bit an alternative (or in addition) to filing an appeal, the H-1B petitioner (or another employer) can consider re-submitting the H-1B petition to USCIS.

As a general matter, the fact that USCIS has denied a petition does not necessarily mean that they will deny a subsequent petition by the same employer for the same beneficiary and for the same position.  Unfortunately, adjudicators vary in their (oftentimes subjective) reading of a instance and a refilling should ideally be supported by more extensive, new, amend prepared or presented or otherwise improved documentation.

A refilling of an H-1B petition is a substantially faster mode to get a conclusion by USCIS compared to an entreatment.  An MTR appeal can accept hands between three-6 and sometimes upward to 12 months while a refilling of an H-1B petition tin can have 15 days for a decision when premium processing is elected and paid for.  Nosotros understand that it is tempting to appeal a case where in that location is a clear government fault, simply in terms of solving the immediate problem and getting the H-1B petition approved, a refilling is often the faster manner.

In some cases a denial conclusion leaves the H-1B casher without condition – for case, H-1B extension where the denial is issued after the beneficiary's petition and I-94 take expired.  In such cases it is possible to refile a petition and ask the government to issue an approval with retroactive effective date (nunc pro tunc) which, if successful, would put an H-1B worker back in status.  This works best for refilings done as event of extension with the same employer simply it is besides doable for H-1B transfer besides .  This arroyo allows the possibility of "fixing" an H-1B worker'south status without having to leave the U.S. but it has to be washed quickly and very carefully to avert problems such equally overstaying I-94 (unlawful presence of more 180 days ways ban on inbound the U.S.).  Delight see our commodity on this topic for more details.

Mechanics, Timeline and Chances of an "Entreatment"

As noted above, the MTR appeal must be filed very before long later on USCIS bug a denial – frequently within 30 or 33 days later the denial decision.  The MTR filing requires Class I-290B together with fee and should be ideally accompanied past a legal brief.

A motion to reconsider must state new facts to be supported by documentation and a motion to reopen must state specifically the reasons for reconsideration and be supported by relevant legal precedent decisions to establish that USCIS was wrong.  As a event, an entreatment must specifically address either or both of these points and provide clear explanations every bit to the new facts or the misapplication of the law.   Not doing and then will cause the MTR appeal to exist merely denied equally non coming together the MTR requirements.  This makes it of import to include a legal brief specifically explaining how and why the denial was wrong.

Once the MTR appeal is filed, the case is eventually transferred to the service center which issued the denial decision and the appeal is oft reviewed by the same officer (or unit of measurement) which issued the denial in the beginning identify.  Equally a consequence, information technology is important to set up the MTR appeal in the all-time possible way in social club to modify the adjudicator's mind and to convince them that they were incorrect.  This is ofttimes a fairly high bar.

Our contempo experience indicates that an MTR appeal takes 3-half dozen and sometimes upwards to 12 months to become a decision from USCIS.  As noted before in this article, the filing of MTR appeal does non normally grant status or continuing work authorization (as if H-1B is pending) while the MTR appeal is awaiting and then employers and beneficiaries should understand that.  Only in the event the MTR entreatment is successful and the H-1B petition granted, and then the candidate would normally be granted condition for the term requested in the H-1B petition.

Our clients always ask u.s.a. what are the chances of success during MTR appeal.  Unfortunately, this is an extremely example-specific question and fifty-fifty then, it is hard to predict whether the USCIS adjudicator will change their mind.  Still, by the fourth dimension an H-1B denial is issued, there is often substantial case documentation on record (H-1B petition, RFE notice, RFE response, denial decision) and we are mostly able to identify and focus on the cardinal factors for blessing.

No-obligation Quote and Case Analysis

We have been very securely involved in H-1B petitions and particularly we accept been paying very shut attention to H-1B denials over the last 12-24 months, as specialty occupation and third-party finish client denials accept skyrocketed and, having handled hundreds of such cases, we feel that we have been able to understand the facts and documents USCIS adjudicators expect  to encounter in order to result an approval.    Our office will be happy to provide consultations or assist with putting together an MTR entreatment.    If yous would like to schedule a consultation with an attorney to discuss a specific case (but possibly without engaging the states to assistance with an appeal), nosotros offer phone consultations.

Conclusion

The dramatic increase in denial rates for H-1B petitions without noun modify in the rules and regulations means that at that place are many (thousands) of H-1B deprival decisions which are incorrect and can or should be appealed.  The suitability of an MTR appeal varies between types of cases and personal situations but we have establish that many employers (especially for cap cases) should at least evaluate and consider the MTR appeal selection.

Our office volition continue monitoring related developments and provide updates.    Please practise not hesitate to contact u.s. if we tin can be of whatever help in preparing or otherwise assisting with H-1B petitions including MTR appeals.    As well, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.