USCIS denied your H-1B petition?
An H-1B denial may involve the specialty occupation, the required degree and job duties, the beneficiary's qualifications, whether a bona fide position exists, the Labor Condition Application, the actual work arrangement, maintenance of status, or another petition requirement. The next step may be an AAO appeal, a motion to reopen or reconsider, or a new H-1B filing.
Send Us Your H-1B DenialSeparate the petition denial from any status decision.
Why did USCIS conclude the H-1B requirements were not satisfied?
An H-1B petition can contain several distinct eligibility questions. The employer must establish the petitioning requirements, a qualifying H-1B position and the beneficiary's eligibility to perform the specialty occupation.
A filing requesting employment classification may also ask USCIS to extend the beneficiary's stay or change the beneficiary from another nonimmigrant status to H-1B.
A denial should therefore be divided into each substantive petition finding and each separate status determination before deciding whether to appeal, move to reopen or reconsider, or file a new petition.
Which H-1B requirement did USCIS find missing?
Degree Requirement Does Not Match the Duties
USCIS may conclude that the position does not require highly specialized knowledge and at least a bachelor's degree or higher in a directly related specific specialty, or its equivalent, as required for entry into the occupation.
The Proposed Job Is Not Sufficiently Established
USCIS may question whether the petitioner has a real specialty occupation position available for the beneficiary as of the requested start date.
Education or Experience Does Not Qualify
USCIS may dispute whether the beneficiary possesses the required U.S. degree, qualifying foreign equivalent, license, or combination of education, specialized training and progressively responsible experience.
LCA Does Not Properly Support the Petition
The certified LCA must properly correspond to the H-1B petition. Occupation, work locations, requested period and other filing facts may be relevant to the denial.
Job Duties Are Not Sufficiently Documented
USCIS may conclude that generalized duties, project descriptions, contracts, statements of work, organizational records or other evidence do not establish the actual specialty occupation work.
Maintenance or Extension Issue
An extension or change of status request may be denied because of prior status, employment, timing or maintenance concerns even where the H-1B classification issues require separate analysis.
The degree requirement must be logically connected to the actual job duties.
Focus on what the position actually requires—not merely the occupational title.
Current H-1B regulations require theoretical and practical application of highly specialized knowledge and attainment of a bachelor's or higher degree in a directly related specific specialty, or its equivalent, as the minimum requirement for entry into the occupation in the United States.
“Directly related” means there must be a logical connection between the required degree field and the duties of the position.
A position does not necessarily fail simply because more than one degree field can qualify. The analysis is whether each accepted field has the required direct relationship to the duties.
After denial, compare USCIS's description of the duties with the actual petition, employer evidence, industry evidence, organizational record and degree requirements.
A qualifying position and a qualified beneficiary are two separate requirements.
Was USCIS denying H-1B classification, extension of stay, change of status—or more than one?
This distinction can change both appellate rights and the beneficiary's immediate options.
USCIS may approve or deny the H-1B petition classification and separately adjudicate a request to extend or change the beneficiary's nonimmigrant status in the United States.
Current USCIS rules generally allow an appeal from an appealable H-1B petition denial. A denial of an extension or amendment of stay is not appealable, and change-of-status determinations have separate limitations.
If the beneficiary had been continuing same-employer employment based on a timely extension filing after the prior authorized period expired, review immediately whether that employment authorization ended when the denial was issued.
The beneficiary's current Form I-94, other status, travel history, employment authorization and any later filings should be reviewed before assuming that an I-290B filing itself resolves the status issue.
An eligible H-1B petition denial can be appealed through Form I-290B.
Reopening and reconsideration serve different purposes.
New Facts Supported by Evidence
A motion to reopen should present new facts supported by affidavits or other documentary evidence.
It may be useful when additional employer, project, credential, organizational or status evidence directly resolves the factual basis of the denial.
Incorrect Application of Law or Policy
A motion to reconsider argues that USCIS incorrectly applied law or policy and that the decision was incorrect based on the record when the decision was issued.
Identify the particular specialty occupation, evidentiary, procedural or other legal error rather than simply asking USCIS to reach a different conclusion.
Sometimes a materially stronger new filing is the better solution.
Refiling does not erase the denial.
A new petition may be appropriate where the position remains available and the employer can correct an evidentiary weakness involving duties, projects, degree requirements, beneficiary qualifications, the LCA, or another curable issue.
Before refiling, determine whether the case is cap subject, whether a new registration or other filing requirement applies, whether the beneficiary remains eligible for the requested U.S. status, and whether consular processing is necessary.
If the previous denial contains an adverse factual finding, the new petition should address that finding rather than simply submitting a different set of exhibits without explanation.
Review the complete H-1B record before selecting the remedy.
Six principles after USCIS denies an H-1B.
Separate Petition From Status
Identify which parts of the decision address H-1B classification and which address extension or change of status.
Break Down Every Denial Ground
Specialty occupation, beneficiary qualifications, LCA, bona fide position and status findings should be analyzed separately.
Use the Current H-1B Standard
Apply the current directly-related-degree framework and actual specialty occupation requirements rather than outdated H-1B formulations.
Match the Remedy to the Defect
Use appeal for appellate review, reopening for qualifying new facts, reconsideration for legal error, and refiling when a new petition can correct the problem more effectively.
Review Employment Authorization Immediately
If the beneficiary was working while an extension request was pending, determine what effect the denial has on continued employment.
Do Not Miss the Deadline
The I-290B filing period is short, while rebuilding a specialty occupation record can require significant employer and third-party evidence.
Review the denial immediately.
Current I-290B guidance generally uses a 30-day filing period.
USCIS generally requires an appeal or motion within 30 calendar days after service of the adverse decision, or within 33 calendar days when USCIS mailed the decision, unless a specialized rule applies.
The denial notice should identify the petition's appeal and motion rights. Read those instructions carefully, especially where the same decision also denies an extension or change of status.
Do not send an AAO appeal directly to the AAO. File Form I-290B using the current USCIS filing instructions.