Navigating the complex world of U.S. immigration law can be challenging, especially when dealing with issues like an H1B transfer denial. For many professionals working in the United States, the H1B visa is essential to career advancement.
However, when a H1B transfer is denied, it can be unsettling and leave you wondering about your next steps. This blog post will explore what an H1B transfer denial means, whether you can appeal, and what you should do to maintain your status in the U.S. after such an event.
Let’s dive in.
What is an H1B transfer denial?
An H1B transfer denial occurs when the United States Citizenship and Immigration Services (USCIS) decides not to approve your petition to change employers while maintaining your H1B visa status. This denial can stem from various factors such as insufficient evidence to prove the new job qualifies as a specialty occupation, issues with the new employer’s ability to pay the offered wage, or inconsistencies in your application.
When a transfer petition is denied, it does not automatically revoke your current H1B status if you are still employed with your original sponsor. However, it can complicate your ability to change jobs and may require you to take immediate action to maintain your legal status in the United States.
Can you appeal if your H1B has been denied?
If your H1B transfer petition has been denied, you do have options for recourse. One of the primary methods to challenge the denial is by filing a ‘Motion to Reopen’ or a ‘Motion to Reconsider’ with USCIS. A Motion to Reopen is appropriate when new evidence or changed circumstances arise that could affect the original decision. Conversely, a Motion to Reconsider is based on claims that the original decision was incorrect due to legal errors or misinterpretation of the law.
Another route is to file an appeal with the Administrative Appeals Office (AAO). This process involves submitting a formal appeal within 30 days of receiving the denial notice. The AAO will then review the case and make a determination based on the merits of the appeal.
Can you keep working after transfer has been denied?
If your H1B transfer petition is denied while you are still employed with your original H1B sponsor, you may continue working for that employer under the terms of your existing visa. However, if you have already left your original employer and the transfer is denied, you are not authorized to work for the new employer.
In this scenario, you must stop working immediately and consider your options to maintain lawful status in the U.S. You could either return to your original employer, if that option is still available, or explore other visa categories that you might qualify for.
How long can you stay in the US after transfer denial?
If your H1B transfer petition is denied, the amount of time you can stay in the U.S. depends on your specific circumstances. If you are still employed with your original H1B sponsor, you can continue to live and work in the U.S. under the terms of your current visa.
However, if you have already left your original employer and the transfer is denied, you must stop working immediately.
In this situation, your options of staying in the U.S. are limited. You may need to leave the country promptly to avoid accruing unlawful presence, which can have serious consequences for your future immigration prospects. Alternatively, you could explore other visa categories that might allow you to remain in the U.S. lawfully.
Summing Up!
As discussed, H1B transfers are denied for several reasons, including the employer’s application, the employee’s qualifications, or labor market conditions. You can appeal against your H1B transfer denial either through a Motion to Reopen or a Motion to Reconsider with USCIS, and if applicable, the USCIS will reverse the denial decision. Moreover, you can keep working with your previous employers if your H1B transfer was unsuccessful.
It is recommended that you consult with an immigration attorney at each step to provide tailored guidance, helping you maintain lawful status and continue your career in the United States. You can easily get in touch with immigration attorneys through our Imagility platform, who have 30+ years of experience handling employment-based visa petitions. You can contact us at sales@imagility.co or at +1 603 782 4622/+1 617 865 6588.
For more info, visit us at www.imagility.co
