H-1B Denial? H-1B Quota – Still Open, How About Re-filing?
Now is that unfortunate time of year where the attorneys at Fong & Aquino start receiving phone calls from H-1B applicants who have received denials of their H-1B petitions. If someone has a denied H-1B, re-filing may be an option, but a previous denial definitely presents some challenges since any applicant must reveal previous denials in subsequent applicants. As I blogged about last year, there are many reasons that USCIS can find to justify a denial, however, many of the H-1B denials that I review could have been prevented if employers and applicants had a better understanding of what makes a successful H-1B case.
H-1B is a program for professional workers, and USCIS takes a very common sense approach to determining whether a job is considered a specialty occupation. First the USCIS reviews whether the nature of the job duties would normally require at least a Bachelor’s degree level of training or knowledge, and secondly, whether requiring a Bachelor’s degree for such position is normal to the that particular industry. Finally, USCIS will consider whether the applicant’s major of study is actually applicable to the job at hand. Beyond this, USCIS relies on caselaw, statutory definitions and guidance from the US Department of Labor to determine whether your case is really H-1B caliber or not. And if so, USCIS will also make a determination whether there is a real job offer in hand and whether an applicant is qualified for such position.
At Fong & Aquino, we don’t use cookie-cutter solutions in helping H-1B employers submit their applications to USCIS. We use a individualized and highly tailored approach to understanding the job offer, the company, and the applicant’s qualifications. If you are interested in a consultation, contact us today. —ecf