H1B Visa denial can be a major setback for individuals seeking to immigrate to the US from India. Despite the potential advantages and new experiences that come with immigration, the H1B visa is necessary for temporary work in the US. Many people in India dream of working in the US and making a mark in the world’s largest economy. However, H1B Visa denial can prevent them from achieving this dream. Therefore, this article will provide guidance on how to avoid such denials.
What is an H1B visa
An H1B visa is a temporary nonimmigrant visa that allows US employers to hire especially skilled individuals to work in the US for a specific period.
The educational requirement for an H1B visa is ideally a bachelor’s degree or equivalent and the field of skills in engineering, technology, finance architecture, or other such permitted areas. However, facing any challenge while applying for an H1 B visa or if your H1B visa is denied can be disheartening.
This article will explore the H1B visa for Indians and what to do if you have an H1B visa denial.
Qualification for H1B visa
As every visa has a qualification procedure, so does H1B. To qualify for an H-1B visa, you must meet several procedural requirements, including
A job offer from a U.S. employer: You must have a job offer from a U.S. employer willing to sponsor you for the H-1B visa.
Specialized knowledge or skills: The job must require specialized knowledge or skills that you possess, and you must have at least a bachelor’s degree or equivalent work experience in your skills.
Labor Condition Application (LCA): Your employer must file a Labor Condition Application (LCA) with the Department of Labor (DOL), certifying that they will pay you at least the prevailing wage for your occupation and location.
Valid Passport: You must have a valid passport that will remain valid for at least six months beyond your intended period of stay in the United States.
Intent to return to your country: You must demonstrate that you intend to return to your home country once your H-1B status expires.
No criminal record: You must be admissible to the United States, which means you must not have any criminal convictions or other immigration violations.
Where to file an H1B visa in India
Indians typically apply for an H1B visa through the US embassy or the nearest US consulate. Furthermore, it depends upon the circumstances and conditions of the case.
Documents required for H1B visa for Indians
To apply for an H1B visa, an Indian applicant needs to provide several documents listed below:
- A valid passport
- A copy of the approved Labor Condition Application (LCA)
- Educational certificates and transcripts
- Relevant work experience certificates and reference letters
- Resume/CV
- Proof of financial support for the duration of the stay in the US
- Any other documents required by the US Embassy or Consulate
Suppose you are already working in the US and applying for a renewal of your H1B visa. In that case, you must also provide a copy of your I-797 Approval Notice and other required documents that demonstrate you are already working in the US under the established valid criteria.
If you are making a fresh H1B visa application from India, you need to find an employer in the US willing to sponsor your H1B visa. The employer will file an H1B petition on your behalf, and this application will contain all your employment details, job offer qualification, etc.
It is always advisable to consult a professional attorney and seek guidance to obtain an H1B visa.
Steps to apply for an H1B visa in India
When filing for an H1B visa application, you should keep the following steps in your mind to make it easy for you:
- You must contact an employer willing to file an H1B application on your behalf and sponsor your visa to the US. Your employer must also apply with the Department of Labour, file a Labor Condition Application (LCA) with the Department of Labor, and obtain an approved LCA.
- After obtaining LCA, your employer has to file your H1B visa application to USCIS.
- If USCIS approves your H1B petition, they will send you Form 1-797A, which serves as notice of approval.
- After receiving the I-797A, you need to schedule an appointment with the US consulate or Embassy in India to apply for an H1B visa in India.
- You need to pay the applicable visa fees
- An Indian H1B visa applicant has to file form DS-160
- An Indian H1B visa holder also has to give evidence of education qualification, skills, and required work experience.
The US consulate or embassy will notify you of the H1B visa approval within a few days after your interview. If your visa is denied, you will receive the reasons for the US visa denial.
Expenditures incurred in H1B visa application
The total expenditures incurred in an H1B visa application can vary depending on several and circumstances, such as the employer’s policies, location, and other expenses that may arise during the visa application process. The cost of an H1B visa application can vary significantly, but you can expect to pay several thousand dollars, depending on your circumstances. Here are some of the common expenditures you can expect to have:
- Visa Application Fees.
- Premium Processing Fees.
- Attorney Fees.
- Medical Examination Fees.
- Travel Expenses.
- Insurance.
What is the H1B lottery system?
The United States Citizenship and Immigration Services (USCIS) uses the H1B lottery system, also known as the H1B visa lottery, to select a specific number of H1B visa petitions for processing each year.
Each year, USCIS accepts applications for new H1B visas starting from April 1st for the upcoming fiscal year, which starts on October 1st.
If the number of H1B petitions received by USCIS exceeds the annual quota, a computer-generated lottery system randomly selects the petitions for processing. The first lottery selects 20,000 petitions for advanced degree holders. The USCIS adds any petitions not selected in the H1B lottery to the bachelor’s degree petitions pool, and then conducts a second lottery to select the remaining 65,000 petitions.
The lottery system ensures a fair and impartial distribution of H1B visas among eligible applicants. However, the limited number of available visas means that the lottery system may not select many qualified applicants. This leads to frustration and disappointment for many applicants and their potential employers.
How and Where to Check your H1B Visa Updates
After you have filed your H1B visa application, you Follow these methods to check your H1B visa status and updates:
Check the number on your H1B visa application receipt: Form I-797, Notice of Action, contains your H1B visa application receipt number. This receipt number is a one-of-a-kind 13-character code that begins with three letters: EAC, WAC, LIN, or SRC.
Visit the USCIS Case Status Online Tool by clicking here: Enter your H1B visa application receipt number into the USCIS Case Status Online tool at https://egov.uscis.gov/casestatus/landing.do
Check Your H1B Visa Status: Using the USCIS Case Status Online service, you may see the current status of your H1B visa application and any modifications or revisions. You can also sign up for email or text message alerts to stay up to speed on your H1B visa status.
What is the estimated time for the visa process?
According to historical data, the current processing time for standard H1B visa applications can range from several months to several years, with an average processing time of 6 to 8 months. On the other hand, Premium processing can reduce the processing time to 15 calendar days for an additional price of $2,500. Remembering processing times can vary depending on the reasons listed above is crucial. There is no guarantee that USCIS will process your H1B visa application within a certain timeframe.
The processing time for an H1B visa might vary depending on several factors, including
The workload at USCIS: The USCIS gets many H1B visa petitions each year, and processing time can vary depending on their workload.
Application completeness: If your H1B visa application is incomplete or lacks needed documentation, it may create processing delays.
Require for extra proof: The USCIS may occasionally require additional evidence to support your H1B visa application, which can cause the processing time to be extended.
Premium processing: If your company pays for premium processing, which guarantees a 15-day processing period, the processing time can be shortened.
How long can you stay in the US after getting an H1B visa?
If USCIS grants you an H1B visa, you can stay in the United States for the entire validity period of the visa. An H1B visa normally has a three-year initial validity period, possibly extending it for another three years, for six years.
When your H1B visa expires, you must leave the country or get another valid visa status. The six-year maximum stay limit, however, has several exceptions.
If you seek permanent residency (green card) while in the United States on an H1B visa, you may be eligible for an H1B visa extension beyond the six-year maximum stay limit. This is an H1B extension beyond the six-year restriction and is permitted under specific conditions. For example, suppose your company has submitted an approved I-140 petition on your behalf, but you cannot file an adjustment of status application owing to visa retrogression. In that case, you may be eligible for an H1B extension beyond the six-year restriction.
Process for Extending your H1B Visa
Before filing an H1B extension petition, your company must file a new Labor Condition Application (LCA) with the US Department of Labor (DOL). The LCA guarantees that your company will pay you the prevailing salary and offer working conditions comparable to those in the United States.
After the LCA is accepted, your employer can file an H1B extension petition on your behalf with U.S. Citizenship and Immigration Services (USCIS). This petition must be filed six months before your H1B visa expires.
To support the H1B extension petition, you need to provide supporting materials such as a copy of your most recent resume, a current H1B approval notice, and other relevant paperwork.
Your employer is responsible for paying the necessary costs for the H1B extension petition. The ACWIA fee, the Public Law 114-113 cost, and the regular filing fee are some examples of these fees, depending on the situation.
Following submitting the H1B extension petition, the USCIS will review the case and render a ruling. You can monitor the status of your application online, though processing times can vary.
If your petition for an extension of your H1B visa is approved, you may continue doing so until the new H1B expiration date.
Commonly asked questions about the H1B visa
Since H1B is the most commonly sought-after visa, there are many questions and queries in the mind of the applicants. Some commonly asked questions are below
Who can Immigrate on your H1B Visa?
Your spouse and unmarried children under the age of 21 may be able to accompany you to the US or join you later on an H4 dependent visa. An H4 visa is a nonimmigrant visa that allows you to bring your dependents to the United States for the duration of your H1B visa.
As an H4 dependant, your partner and children cannot work in the United States, but they may be able to attend school or college. If an H4 visa holder meets specific qualifying criteria, they may be able to file for an Employment Authorization Document (EAD) and work in the United States.
It’s important to know that the H4 dependent visa is linked to the validity of the H1B visa; thus, if your H1B visa expires or is canceled, so will your dependents’ H4 visa. If you intend to bring your dependents to the United States on an H4 visa, be sure you have enough time remaining on your H1B visa to cover their stay.
It’s also worth noting that if you seek permanent residency (green card) while on an H1B visa, your spouse and unmarried children under 21 may be eligible as dependents.
What is H1B Stamping?
It’s important to know that the H4 dependent visa is linked to the validity of the H1B visa; thus, if your H1B visa expires or is canceled, so will your dependents’ H4 visa. If you intend to bring your dependents to the United States on an H4 visa, be sure you have enough time remaining on your H1B visa to cover their stay.
It’s also worth noting that if you seek permanent residency (green card) while on an H1B visa, your spouse and unmarried children under 21 may be eligible as dependents.
Where You Can Get Your H1B Visa Stamped in India.
After USCIS approves your H1B visa petition, you must schedule an appointment with the US Embassy or Consulate in India to obtain the H1B visa stamp in your passport.
Common reasons for Denial.
An H1B visa denial is a decision by US Citizenship and Immigration Services (USCIS) to reject an individual’s H1B visa application. The applicant cannot work in the US under the H1B visa category.
The following are some of the most common reasons for an H1B visa denial:
- Failure to meet the eligibility requirements
- Insufficient evidence supporting the application
- Failure to demonstrate that the offered employment qualifies as a specialized occupation
- Inability to show that the employer will pay the prevailing salary
- Technical flaws in the application or accompanying documentation
Recently, the number of Indians denied H1B visas has climbed. According to USCIS data, The denial rate for H1B visa petitions for initial employment increased from 6% in FY 2015 to 24% in FY 2019. The denial rate for H1B visa extension petitions increased from 3% in the fiscal year 2015 to 12% in the fiscal year 2019.
The consequences of an H1B visa denial might be severe. You will not be permitted to work in the United States under the H1B visa category if your H1B visa application is denied. If you are denied an H1B visa, you may be able to file an appeal or a move to reopen or review the decision. These choices, however, can be complicated and necessitate the advice of an experienced immigration attorney. It is important to realize that the overall success percentage for appeals and motions is low.
Modes of Avoiding H1B Visa Denial
Ensure your application is complete and correct: Check that your application is comprehensive, correct, and contains all essential documentation. Examine your application thoroughly to ensure all the information is accurate and consistent.
Submit strong supporting paperwork: Submit strong and appropriate supporting documentation demonstrating that you meet the H1B visa category eligibility standards.
Prepare for the interview: If an interview is required, ensure you are prepared to answer questions concerning your application, qualifications, and job offer.
Seek legal counsel: Consult with an expert immigration attorney to assist you in preparing your application and providing guidance on any potential concerns.
The H1B visa program is a significant tool for attracting highly qualified foreign workers to the United States, enabling businesses to fill specialized tasks and maintain competitiveness. However, many applications are turned down yearly due to the strong demand for these visas and restricted qualifying conditions. Employers and applicants can take strategies to strengthen their applications and improve their chances of success by becoming aware of the most frequent reasons for H1B visa denials. The correctness and comprehensiveness of all application materials should be ensured, and any possible issues brought up by the USCIS must be promptly and fully addressed. Ultimately, the H1B visa program may be a helpful tool for companies and foreign workers looking to contribute their talents and knowledge to the American workforce with careful planning and attention to detail.
