top of page

Common H-1B Visa Denials and How to Avoid Them



H-1B denial
How to avoid H-1B Visa denials.

The H-1B visa is a highly sought-after work visa that allows skilled foreign professionals to work in the United States. However, not all applications are successful. Many H-1B petitions get denied due to errors, insufficient documentation, or failing to meet eligibility criteria. Understanding the common reasons for H-1B visa denials can help applicants and their employers strengthen their petitions and increase their chances of approval.


This post focuses on things that your immigration attorney can help you with to improve your chances of success.


1. Specialty Occupation Issues

Reason for H-1B Denial:

One of the most frequent reasons for H-1B denials is failing to prove that the job qualifies as a specialty occupation. The H-1B visa is only granted for positions that require a minimum of a bachelor's degree or its equivalent in a specific field. If the USCIS determines that the job does not require specialized knowledge, the petition may be denied.

How to Avoid It:

  • Clearly define the job role and responsibilities in a way that demonstrates the need for specialized knowledge.

  • Provide documentation proving that similar roles in the industry require a degree.

  • Submit expert opinion letters from industry professionals or academics to justify why the position qualifies as a specialty occupation.


2. Employer-Employee Relationship Issues

Reason for Denial:

USCIS requires proof of a valid employer-employee relationship. If the employer cannot demonstrate control over the H-1B employee’s work, especially in third-party worksite placements, the petition may be rejected.

How to Avoid It:

  • Submit an employment contract that outlines the terms of employment.

  • Provide an itinerary of work assignments if working at a third-party location.

  • Include documents that demonstrate supervision, such as reporting structures, performance evaluations, and communication records.


3. Wage Level Issues

Reason for Denial:

H-1B employers must pay at least the prevailing wage for the position based on the employee’s location and job duties. If USCIS determines that the wage level is too low, it may deny the petition.

How to Avoid It:

  • Use data from the U.S. Department of Labor's (DOL) wage database to determine the correct wage level.

  • Ensure the salary meets or exceeds the minimum prevailing wage for the role and location.

  • Provide documentation explaining the wage determination process.


4. Inconsistent or Incomplete Documentation

Reason for Denial:

Any missing, incomplete, or inconsistent information in the H-1B petition can lead to a denial. Common issues include mismatched job descriptions, missing degree equivalency evaluations, or failure to submit required supporting documents.

How to Avoid It:

  • Double-check all information before submission to ensure accuracy.

  • Include a degree equivalency evaluation if the applicant’s degree is from a foreign institution.

  • Provide a clear job description that aligns with the specialty occupation criteria.

  • Keep employer tax records and business registration documents up to date and included in the petition.


5. Issues with Employer Eligibility

Reason for Denial:

Smaller companies or newly established businesses sometimes face additional scrutiny regarding their ability to support an H-1B worker. USCIS may question whether the employer can afford the employee’s salary or whether the company genuinely needs a highly skilled foreign worker.

How to Avoid It:

  • Provide financial documents, including tax returns, bank statements, and profit/loss statements, to prove the company’s ability to pay.

  • Submit contracts or business plans to show the company’s need for the H-1B worker.

  • Ensure the company’s EIN (Employer Identification Number) and business license are valid and up to date.


6. Prior Visa Violations or Immigration History

Reason for Denial:

Applicants who have previously violated U.S. immigration laws, overstayed visas, or been denied other visa applications may face difficulties obtaining an H-1B visa.

How to Avoid It:

  • If you have prior issues, consult an immigration attorney before applying.

  • Disclose any past visa denials or immigration violations upfront and provide documentation explaining them.

  • Ensure all past tax filings, visa renewals, and compliance requirements have been met.


7. Issues with Maintenance of Status for Change of Employer or Extension

Reason for Denial:

If an H-1B worker is changing employers or applying for an extension, USCIS may deny the petition if there is a gap in lawful status or if the applicant was not maintaining valid H-1B status.

How to Avoid It:

  • File extensions or transfer petitions on time to prevent status lapses.

  • Submit recent pay stubs to prove continued employment.

  • If there has been a gap in employment, consult an immigration attorney to determine the best way to address the issue.


Conclusion

H-1B visa denials can be frustrating and stressful, but many of them are preventable with proper planning and documentation. Employers, immigration attorneys, and employees should work together to ensure that petitions are complete, accurate, and well-supported. If an H-1B denial does occur, filing a motion to reopen or reapplying with stronger evidence may be possible. Consulting an experienced immigration attorney can also improve the chances of approval.


By taking proactive steps to avoid common pitfalls, H-1B applicants can significantly increase their likelihood of successfully obtaining a visa and building a career in the United States.

All of the content mentioned herein represents the individual opinions of the author or authors, but none of it should be taken as legal advice.  All content is provided freely and without any warranties, guarantees, or liabilities.  In no event shall the writers or providers of this content be liable for any damages or other liability resulting from the opinions shared herein.


You should always work with an attorney for any immigration visa needs.

bottom of page