What Are Options In Case Work Visa Petition Is Denied By USCIS?

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An unfortunate fact about the current H-1B climate is the historically high request for evidence (“RFE”) and denial rates for H-1B petitions. Government data and research by many organizations (see National Foundation for American Policy (NFAP) analysis) have shown historically high H-1B denial rates – with some first-time H-1B petitions having a denial rate of 32% compared to 6% just four years ago.

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.

Understanding the Reason for Denial and Beneficiary Status Options

One of the first key steps following an H-1B denial is to understand the exact reason for the denial. USCIS adjudicators rely on boilerplate denial templates; unfortunately, and especially over recent months, adjudicators have started to issue denial decisions with little or no explanation as to the exact and specific reasons for a denial. In practical terms, a denial letter can be several pages long, with 99% of it being standard boilerplate language, including elaborate references to case precedent, but with only sentence or two of actual case-specific language.

The result is that petitioners and their attorneys are often left making educated guesses as to what may be the exact reason for a denial based on reviewing the initial filing and any RFE responses.For more information on h1b sponsorship check Orphosys Corp.

Among the more common denial reasons are specialty occupation (see our alert on this topic), end client 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 analyze immediately after a denial (ideally this should have been considered prior to a denial being issued) is the beneficiary’s status options for those who are in the U.S. H-1B beneficiaries applying for their first H-1B under the annual “cap” are often on F-1 student, L-1 or L-2/H-4 dependent status and may be able to independently continue to remain in the U.S. despite the denial but some may require immediate steps such as status extensions or similar. See 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 mean filing an I-290B, Notice of Appeal or Motion, seeking a Motion to Reopen or a Motion to Reconsider (“MTR”) a denial decision by USCIS. Most often this is the next step to be followed following 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 status or otherwise keep the H-1B “pending” while the appeal is pending. Only if the appeal is successful and the MTR approved (denial reversed, H-1B petition approved), then the H-1B beneficiary gets status approval often with the validity dates noted in the actual H-1B petition.

Also, an MTR appeal must be filed within 33 days of the denial decision (or 30 days if denial decision received by fax or email). This makes for a very time-sensitive process especially since an MTR appeal should ideally include a substantial brief to outline in detail why USCIS was wrong in denying the case or to provide new facts or information.

H-1B Cap Petitions – Appeal Only Choice

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

When we counsel H-1B employers who have received a cap denial, after having analyzed the reasons for denial, we often emphasize that an appeal is the only viable option to try 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, take chances under the random lottery and then hope for an approval with a start date of the following October 1st – this means having to wait 12, perhaps more, months for a chance for an H-1B approval.

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

H-1B petitions seeking extension, amendment or transfer certainly can and should consider filing an appeal. But in many cases there 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 as 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 (often subjective) reading of a case and a refilling should ideally be supported by more extensive, new, better prepared or presented or otherwise improved documentation.

A refilling of an H-1B petition is a substantially faster way to get a decision by USCIS compared to an appeal. An MTR appeal can take easily between 3-6 and sometimes upward to 12 months while a refilling of an H-1B petition can take 15 days for a decision when premium processing is elected and paid for.To know more details on  jobs for h1b visa holders visit Planetm

We understand that it is tempting to appeal a case where there is a clear government error, but in terms of solving the immediate problem and getting the H-1B petition approved, a refilling is often the faster way.

In some cases a denial decision leaves the H-1B beneficiary without status – for example, H-1B extension where the denial is issued after the beneficiary’s petition and I-94 have 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 result of extension with the same employer but it is also doable for H-1B transfer as well . This approach allows the possibility of “fixing” an H-1B worker’s status without having to leave the U.S. but it has to be done quickly and very carefully to avoid issues such as overstaying I-94 (unlawful presence of more than 180 days means ban on entering the U.S.). Please see our article on this topic for more details.

Mechanics, Timeline and Chances of an “Appeal”

As noted above, the MTR appeal must be filed very soon after USCIS issues a denial – often within 30 or 33 days after the denial decision. The MTR filing requires Form I-290B together with fee and should be ideally accompanied by 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 result, an appeal must specifically address either or both of these points and provide clear explanations as to the new facts or the misapplication of the law. Not doing so will cause the MTR appeal to be simply denied as not meeting the MTR requirements. This makes it important to include a legal brief specifically explaining how and why the denial was incorrect.

Once the MTR appeal is filed, the case is eventually transferred to the service center which issued the denial decision and the appeal is often reviewed by the same officer (or unit) which issued the denial in the first place.

As a result, it is important to prepare the MTR appeal in the best possible way in order to change the adjudicator’s mind and to convince them that they were wrong. This is often a fairly high bar.

Our recent experience indicates that an MTR appeal takes 3-6 and sometimes up to 12 months to get a decision from USCIS. As noted earlier in this article, the filing of MTR appeal does not normally grant status or continuing work authorization (as if H-1B is pending) while the MTR appeal is pending so employers and beneficiaries should understand that.

Only in the event the MTR appeal is successful and the H-1B petition granted, then the candidate would normally be granted status for the term requested in the H-1B petition.

Our clients always ask us what are the chances of success during MTR appeal. Unfortunately, this is an extremely case-specific question and even then, it is hard to predict whether the USCIS adjudicator will change their mind.

However, by the time 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 generally able to identify and focus on the key factors for approval.

No-obligation Quote and Case Analysis

We have been very deeply involved in H-1B petitions and especially we have been paying very close attention to H-1B denials over the last 12-24 months, as specialty occupation and third-party end client denials have 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 see in order to issue an approval.

Our office will be happy to provide consultations or assistance with putting together an MTR appeal. If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with an appeal), we offer phone consultations.

We are also happy and available to assist with a more comprehensive MTR appeal filing and representation. Please feel free to complete this MTR appeal inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

Final Thought

The dramatic increase in denial rates for H-1B petitions without substantive change in the rules and regulations means that there are many (thousands) of H-1B denial 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 found that many employers (especially for cap cases) should at least evaluate and consider the MTR appeal option.

Our office will continue monitoring related developments and provide updates. Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with H-1B petitions including MTR appeals. Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

H-1B Visa Requirements For Doctors & Physicians

H1B Visa

Foreign medical graduates often desire to leave their country to further their careers in the United States. The H-1B is highly sought after by foreign professionals seeking employment in specialty occupations within the U.S. However, obtaining an H-1B visa for doctors and physicians comes with its own set of requirements.

IMPORTANT UPDATE: Premium processing has been suspended for all cap-subject petitions for the 2019 fiscal year. The suspension will take place April 2, 2018 and continue until September 10, 2018. To read more about this suspension and how it affects your case, read our premium processing suspension update.

Because of the high demand for this class of visa, having your application approved for an H-1B visa or getting H-1B status is not always easy. Having a thorough understanding of the visa requirements and heeding legal counsel can help you avoid common delays and pitfalls.For H1B Visa Process Visit Orphosyscorp

In the past, physicians have been using the J-1 visa to practice in the U.S. This option, however, came with a two-year foreign residency requirement after medical training that was often hard to fulfill. Now, under the Immigration and Nationality Act of 1990, medical professionals were able to apply for the H-1B visa for doctors to avoid the residency requirement.

U.S. employers are allowed to legally hire qualified foreign professionals on a temporary basis based on their acquired skills. In order to be eligible for the H-1B visa, the U.S. employer as well as the potential employee must follow the USCIS conditions and regulations. The visa requirements strive to ensure that the U.S. employer and foreign professional comply with the Department of Labor standards.

An H-1B visa for doctors can be obtained by applicants who aim to:

A. To teach or conduct research at a public or nonprofit private educational institution

B. To participate in a residency program

C. For employment for a U.S. company that complies with USCIS conditions and regulations as a physician or doctor

Application Process

The U.S. Department of Labor sums up the H-1B application process in three steps:

A. Submit a labor condition application (LCA) to the Office of Foreign Labor Certification (OFLC).

B. Once the LCA has been certified by the OFLC, submit it to the USCIS along with the “Petition for Nonimmigrant Worker,” Form I-129. While the petition includes some of the same information as the LCA, the USCIS reviews information on both documents to determine whether the job meets the requirements of a specialty occupation.

It also decides whether the prospective H-1B worker meets the statutory requirements in that occupation. USCIS approval is provided by Form I-797. To know more information on  H1B Visa check Pdagreen

C. Any foreign workers located outside the U.S. should go to the Department of State (DOS) to obtain a visa to work in the U.S. with a specific employer for a designated calendar period of time.

If the foreign worker is already in the United States, USCIS provides the nonimmigrant an I-797 approval notice which gives the individual the ability to work pursuant to the approved H-1B petition.

Once an employer obtains the certified LCA and the approved petition, the Wage and Hour Division (WHD) enforces the attestations within the LCA. This includes the material facts and labor condition statements.

What Is The H-1B Visa?

H1B Sponsorship

The H-1B visa is a non-immigrant visa which permits U.S. companies and employers to enlist professionals from specialty occupations overseas. With the H-1B visa, a foreign professional could work with the designated employer in the United States for a total of six years.

Requirements

As usual, we predict that the H-1B requirements will remain the same as previous years. However, as you will see later on, these requirements could very well change in the upcoming years. For Employment Visa Process Visit UT Evaluators.

As of now, the requirements are as follows. You must:

1. Have a job offer from a U.S. employer for a specialty position requiring a bachelor’s degree

2. Possess at least the required bachelor’s degree

3. Not be the sole proprietor of the sponsoring company

Your employer must also be able to pay you the prevailing wage and show that hiring you is a business necessity. Additionally, even though the rules have been relaxed a bit surrounding self-employment, you still cannot self-petition.

To be able to use your own business as your H-1B employer in 2020, you will still need to set up a CEO or board of directors with the power to control your salary, duties, and employment status. For more information on H1B Visa check Thebigtrak

Your employer will also need to obtain a Labor Certification Application for you. This means that your employer must make four attestations to the Department of Labor:

1. Your employment must not have a detrimental impact on the workers currently employed.

2. The current employees must be notified of your employer’s intent to hire you.

3. You must be paid the prevailing wage as a minimum. This is a wage that is calculated based on your position and geographic location.

4. The job location must not be experiencing a lock-out or strike.

These measures are put in place to protect the current workers and to prevent employers from using foreign labor as an alternative or replacement for domestic workers. Therefore, getting an LCA should be your employer’s first step along the H-1B journey for 2020.

H-1B Visa 2020 Masters Cap/Quota

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Based on the guidelines set by USCIS, 20,000 petitions are exempt from the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher. This is what’s referred to as the advanced degree exemption.

IMPORTANT UPDATE: H1B 2019-2020 Master’s Quota Lottery Reordering

We are going to discuss some changes that are in the works for the H-1B visa cap this year and in years to come. On January 30, 2019, the DHS announced a final rule, which makes two significant changes to the H-1B visa lottery process. The final rule will become effective on April 1, 2019. For H1B Visa Process Visit UT Evaluators

(1) New Master’s Cap Order

Under guidance from the Buy American and Hire American executive order, the USCIS is in the process of implementing some changes to the H-1B process to give preference and priority to highly-skilled and highly-paid workers. One such change involves the order in which the lotteries take place.

As we stated earlier, the USCIS has, in years past, conducted the master’s lottery first, then entered the unselected petitions into the regular cap. This proposed change involves a complete reversal of that order. Instead, the regular lottery will be conducted first, including all cap-subject petitions. Then, all unselected master’s petitions will be entered into the master’s lottery.

The USCIS is anticipating that this will increase the chances of master’s petitions being selected by 16%. Here is how that works.

Previously, the master’s cap would be conducted first, meaning that all cap-subject master’s petitions would be entered into the master’s lottery. If your petition was not selected, then it would be entered into the regular cap to compete with tens of thousands of petitions.

Under this new rule, the regular cap would be conducted first. Because it includes all cap-subject petitions (including master’s petitions), some master’s petitions will inevitably be selected in the regular cap without ever entering the master’s lottery. After that, all unselected master’s petitions will be entered into the master’s lottery, which will be smaller than it would be under the normal order since some master’s petitions have already been selected, shrinking the pool of potential petitions. Per DHS Final rule, this new policy will be in effect for H1B cap 2019-2020 season, starting April 1, 2019.

(2) Online Pre-registration

The USCIS is in the process of building and testing an online pre-registration system to make the H-1B lottery a more manageable process. Rather than submit a petition to enter a beneficiary into the lottery, employers will register their beneficiary with the USCIS database before the start of the filing window. To know more details on H1B Visa  check Trauma2011

Petitions will still be used, but only once a beneficiary has been selected in the lottery. However, the electronic registration requirement will be suspended for the fiscal year (FY) 2019-2020 H1B cap season. Here is how this system is expected to work in the future:

A. Employers will pre-register their alien workers with the USCIS several weeks before April 1st (they will announce the exact times if this rule is implemented this year). This will involve inputting the information about the workers into the database.

B. The USCIS will conduct the lottery and choose the beneficiaries that will go onto processing (still 65,000 for the regular cap and 20,000 for the master’s cap).

C. The employers of those that were selected will then file their petitions with the USCIS for processing along with the appropriate filing fees and supporting documents.

D. If the petition is approved, then the H-1B visa will be issued and the beneficiary’s start date will be October 1st of that same year.

Therefore, employers wishing to file petitions for H-1B workers would no longer need to file petitions in order to enter the cap. The USCIS states that this new system will help them expedite the H-1B process and avoid having to handle and sift through hundreds of thousands of petitions. This also prevents them from having to return the packets and fees to all unselected petitioners.

The USCIS memo states that this registration system is still being tested, and will not completed in time for the 2020 filing season. The USCIS also reserves the right to suspend the registration system any year that they encounter technical difficulties. Check back with this post later on to see what the status is on the new system.

Options After H1B Visa Denial When You Are In The United States

 H1B Visa

If you are in the U.S. and your employer files an I-129 petition, your employer is requesting any of the two things from the petition. First, your employer is requesting USCIS to change your immigration status from current status to a new, employment-based status. Second, your employer is requesting USCIS to extend your legal status in the United States. For H1B Visa Process Visit UT Evaluators

For example, F-1 visa student in US upon completing the study program wants to remain in the U.S. and work for a U.S. employer. To do so, the students can get approval for OPT and work under OPT status but what after the OPT validity expires.

Now the U.S. employer must file the I-129 petition to change the foreign national’s status from F-1 to H-1B (or other work visa status) and extend legal status.

If USCIS denies the I-129, employer can file a second I-129 petition on your behalf, and attempt to correct any flaws that USCIS found in the first petition.For more info on  H1B Visa  visit Icadl2013

Or, if the shortcomings cannot be corrected at this time, it may be possible to extend your F-1 status in order to remain in the U.S. legally (by opting a master’s program or another degree program).

H-1B Documents For A Green Card

Check for H1B Visa Process in UT Evaluators

If you are planning on using your H-1B visa to make the transition to lawful permanent resident status through a green card, there is another list of documents to take into account.

A. You will need to have your employer submit an I-140 Immigrant Petition for Alien Worker along with all supporting evidence for the green card you are pursuing.

B. If you would like to use premium processing, you will need to file a new I-907 that is separate from any form filed as an H-1B document.

C. Once your petition has been approved and your priority date is current, you will need to submit an I-485 Application to Register Permanent Resident or Adjust Status. For H1B Visa Evaluation Visit here

Alternatively, if you go through consular processing, you will need the following documents:

A. Your passport and any expired passports

B A photo of you

C. Comprehensive evidence of your green card eligibility

D. Your resume

You will also need to complete a DS-260 online immigrant visa application and print out the confirmation page and the receipt before attending your consular interview.

US : No change in H1B visa system

Amid the H1B visa row in India, the US government on Friday said there has been no change in law regarding the H1B regime and the system continued to be as before.Acting Deputy Assistant Secretary for State for South Asia Thomas Vajda said no legislation has been passed so far on the particular category of visa. Check for H1B Visa Evaluation in UT Evaluators

“(There is) no change in the law today for H1B (visa) regime or system in the United States… President (Donald) Trump asked for review of the H1B system…but no steps have been taken. Many changes in law, so many cases, require changes of legislation. But so far no legislation has been passed on H1B. For the moment, the system remains as it has in the past,” Vajda told reporters after an interactive session with members of the Bengal Chamber of Commerce and Industry.

Following Trump’s election as US president on a protectionist platform, the US has announced stricter norms for issuing the H1B and L1 visas.India’s Commerce Minister Suresh Prabhu said in October that the issue of H1B and L1 visas, which have facilitated the entry of Indian IT professionals, has been raised strongly with Washington.Responding to a query regarding reducing pet coke imports from the US, Vajda said the US sees energy as the most potential area for increasing economic activities.

“The US is committed to increase energy export and support for India’s economic development,” he said.

Vajda said both the governments of India and the US have been hopeful and supportive for completion of contract between the Westinghouse Electric Company and the Nuclear Power Corporation of India to build six nuclear reactors in India.On the Rohingya refugee crisis, he said the US has been providing financial support for humanitarian purposes to the Bangladesh government through international organisations to help out over 600,000 Rohingyas who have fled to Bangladesh from Myanmar since August. H1B Visa Process Check here

“We also continue to urge the governments of Myanmar and Bangladesh to have conversations and discussions that will facilitate the safe, voluntary and dignified return of Rohingyas to Myanmar,” he added.

The US Citizenship and Immigration Services today said that it has returned all the petitions of H1-B visas

The US Citizenship and Immigration Services today said that it has returned all the petitions of H1-B visas, popular among Indian IT professionals, that were not selected in the computer-generated lottery system in April.

The US Citizenship and Immigration Services today said that it has returned all the petitions of H1-B visas, popular among Indian IT professionals, that were not selected in the computer-generated lottery system in April. The H1-B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China. H1B Visa Process Check UT Evaluators

The US Citizenship and Immigration Services (USCIS) said that it has returned all the unselected H-1B petitions for the fiscal year 2019, beginning October 1 which were submitted to the agency in April. The Congressional-mandated cap of 65,000 H-1B visas and another 20,000 in the advanced degree categories were reached within the first five days after the USCIS started accepting H-1B applications.

As an H-1B non-immigrant, the applicant may be admitted for a period of up to three years. The time period may be extended, but generally cannot go beyond a total of six years. However, there are some exceptions to it. On April 6, around 94,213 H-1B petitions were received in the general category and 95,885 in the advanced degree category, as a result of which the federal agency resorted to a computerised draw of lots to select the successful applicants. Petitions of those not selected have now been returned, the USCIS said. For H1B Visa Evaluation Visit UT Evaluators

The H-1B application process began from April 2 as the top federal agency temporarily suspended the premium processing of all such work visas subject to fiscal cap. The suspension of premium processing of all the H-1B petitions which are subject to the annual caps is expected to last until September 10, 2018.

During this time, the USCIS said it will continue to accept premium processing requests for the H-1B petitions that are not subject to the fiscal 2019 cap. According to the USCIS, between 2007 and 2017, it received the maximum number of 2.2 million H-1B petitions from high-skilled Indians. India was followed by China with 301,000 H-1B petitions during the same period.