H-1B Denial: Common Reasons, Consequences, and Solutions

Securing an H-1B visa is a major step for many foreign professionals looking to continue their careers in the United States. However, getting picked is just the first step to getting an H-1B, and not every H-1B application can be approved. If your H-1B is denied during the OPT Cap-Gap Extension, you could face a gap in legal status, requiring immediate action to avoid falling out of status. This article outlines the most common reasons for H-1B denials, what to do if your application is denied, and your options for responding to an H-1B denial.

Table of Contents

9 Common Reasons for H-1B Visa Denial

What Happens If Your H-1B Application is Denied?

What to Do If Your H-1B Visa is Denied?

Final Thoughts

9 Common Reasons for H-1B Visa Denial

• (1) Specialty Occupation

One of the most critical reasons for an H-1B denial is failure to prove that the job qualifies as a "specialty occupation." The job must require specialized knowledge and a bachelor’s degree or higher in a related field. Many H-1B denials occur when the USCIS determines that the job can be performed without specialized skills or a degree. Students with degrees in liberal arts and business are more likely to face an H-1B denial for this reason.

• (2) Beneficiary Qualifications (Mismatch Between Job and Degree)

Even if the job qualifies as a specialty occupation, the visa applicant (beneficiary) must have the appropriate academic qualifications. A H-1B visa denied can happen when there is a mismatch between the applicant's degree and the job description. For example, a humanities degree holder applying for an IT role might face H1B rejection.

• (3) Labor Condition Application (LCA) Issues

Errors in the LCA can cause an H-1B denial. Issues such as discrepancies in job title, job description, work hours, or wage levels can result in H-1B denials. Additionally, if there are qualified local candidates for the role, it could lead to H-1B rejections since the program is not meant to displace American workers.

• (4) Employer-Employee Relationship

Another reason for an H-1B denial is failure to demonstrate the employer-employee relationship. This is common in cases involving contractors or outsourcing. If the USCIS believes the employer does not have full control over the employee’s work, the H-1B application may be denied. Multiple registrations by one employer for the same employee can also result in H1B rejection.

• (5) Wage Requirements

H-1B employees must meet wage requirements. According to USCIS, H-1B applicants must be offered an annual salary of at least $60,000, or higher if the prevailing wage for their job position in a given geographical area exceeds that amount. Offering a wage below the prevailing rate can result in an H-1B denial. This is a common reason for denials, as USCIS closely monitors compliance with wage regulations to protect U.S. workers. To check the prevailing wage for your position, please refer to: OFLC Wage Search.

• (6) Maintenance of Status

A denial may occur if the applicant fails to maintain their legal status. For F-1 students, violations such as unauthorized work, failure to maintain full-time enrollment, or working during OPT grace periods can lead to an H-1B visa denial. If you are using Day 1 CPT, it is crucial to comply with all relevant policies, such as renewing your CPT on time, attending on-site classes, and avoiding any unauthorized employment.

•  (7) Responding to Requests for Evidence (RFEs)

Failure to adequately respond to an RFE can result in a H-1B denial. The USCIS may issue an RFE to clarify issues related to specialty occupation, employer-employee relationship, or wage compliance. But getting an RFE is by no means a sign of H-1B denial. In 2024, 80% of H1b RFEs were successfully refuted. However, they must be responded to completely in a timely manner. All parties must provide the required documentation. 

•  (8) Visa Interview/Stamping

If you're applying from outside the U.S., the visa interview is another hurdle. Inconsistent answers or doubts about the job offer during the interview could result in H-1B stamping rejection. If your H-1B stamping is rejected, you will need to respond carefully by providing additional information or clarifications.

• (9) Presidential Impact

Changes in immigration policies can increase the H-1B rejection rate. These impacts can result in stricter scrutiny of H-1B applications, affecting approval chances for certain industries or roles. For example, during the Trump administration of 2017-2020, the H-1B denial rate never dropped below 10%. In the 3 years of the Biden administration, the rate has consistently been 5% or below. 

What Happens If Your H-1B Application is Denied?

• Leaving the U.S. after H-1B Denial: If you're an OPT student and receive an H-1B denial, you must leave the U.S. within the 60-day OPT grace period unless you change your status.
• Legal Stay During Appeal: Filing an appeal does not automatically extend your legal stay in the U.S. If your OPT grace period expires while the appeal is pending, you must leave the U.S. unless you have changed to another status.
• Impact on Future H-1B Applications: If your H-1B application is denied, your H-1B spot becomes invalid. While you can apply for an H-1B again next year, you will need to go through the visa lottery process once more.

What to Do If Your H-1B Visa is Denied?

(1) Appealing (Motion to Reopen/Consider)

If your H-1B is denied, your employer can file an appeal within 33 days by submitting a Motion to Reopen or Motion to Reconsider. In the first stage, the USCIS will review your case and decide within 45 days whether to overturn the denial. If the denial stands, your case will be forwarded to the Administrative Appeals Office (AAO).

Important points regarding appeals:

• Processing Time: AAO's review can take up to six months, so an appeal may overlap with the next H-1B application season. However, appealing doesn’t impact your next year's application.
• Legal Stay: Filing an appeal does not extend your legal stay. If your H-1B is denied, you must change your status or leave the U.S. before the grace period ends to avoid unlawful presence.
• Success Rate: the success rate of overturning an H-1B denial at the appeal stage is less than 5%. However, don’t be frightened by this figure, as it only accounts for cases in the second stage. Some cases are successfully overturned in the first stage of the appeal process.

It’s advisable to consult an immigration attorney to handle an appeal due to the complexity of appeal. 

2. Day 1 CPT

In fact, many employers are reluctant to cover the legal fees and long waiting periods involved in an H-1B appeal. If you wish to continue working without interruption, one option is to pursue Day 1 CPT:

• Within the U.S.: If you're still on OPT, you can apply to a Day 1 CPT school and transfer your SEVIS record to the new institution. These schools are known for their fast admission processes, typically issuing an I-20 within 1-2 weeks after application. Once enrolled in a Day 1 CPT program, you can apply for CPT and begin working from the first day of your program, allowing for a smooth transition from OPT to CPT while maintaining your employment.
• Outside the U.S.: If you're outside the U.S., you can still apply to Day 1 CPT schools. After receiving an I-20, you'll need to complete the consular process and attend a visa interview to obtain an F-1 visa. During the interview, it is important to minimize the focus on CPT in your study plan. For more information, see: 4 Common F1 Visa Interview Questions and How to Answer Them.

This option is the most affordable and time-efficient way for international students to handle an H-1B denial. It doesn't require the assistance of an immigration attorney, helping you save both time and money. If you have any questions about Day 1 CPT, don’t hesitate to book a free consultation with us!

3. Changing Your Status

Another option is to change your status to remain in the U.S., such as transitioning to L-1, O-1, or H-4, depending on your individual situation. Each of these statuses has specific eligibility criteria, so it is important to consult with an immigration attorney to determine the best course of action based on your circumstances.

Working in the U.S. without H-1B: 8 Alternative Options to H-1B Visa

Final Thoughts

Facing an H-1B denial can feel like a significant setback, but it’s not the end of your journey in the U.S. Whether you choose to appeal, pursue Day 1 CPT, or change your status, there are multiple paths to continue working and living in the U.S. Each option comes with its own set of requirements and challenges, so it is crucial to evaluate your situation carefully and seek professional guidance when needed. By taking the right steps, you can navigate these hurdles and stay on track with your career goals.

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