06 May Foreign Worker Obtains H-1B Approval After Overcoming a Prior Denial
By: Brittany Milliasseau
The importance of getting a good education was something that had been instilled in William since he was a child. So when William was offered the chance to pursue his studies at a prestigious U.S. university, he knew it was an opportunity he could not forgo.
William obtained a student visa and began his bachelor’s degree program in the U.S. After earning his bachelor’s degree, he then pursued a master’s degree at another U.S. university. Time flew quickly and before he knew it, graduation was right around the corner. As many of his classmates discussed their post-graduation employment plans, William began to feel a bit uneasy as he knew that his ability to remain in the U.S. to live and work after graduation was limited due to the fact that he was in the U.S. in student status.
One day, William received an offer of employment from a U.S. company. The company agreed to sponsor William and filed an H-1B specialty occupation visa petition on his behalf. Although William was qualified for the H-1B, there was still one issue – H-1B visas are limited and only a certain number are available each year. Due to the high number of petitions, applicants must be selected through a computer-generated random process, or “H-1B lottery” system.
Thankfully, William was selected in the H-1B lottery and subsequently U.S. Citizenship and Immigration Services (USCIS) approved the petition. After working for the company for over a year, William received an enticing job offer from another company. William was thankful for the time that he spent at the first company but this new opportunity was one that he could not pass up and he gladly accepted the new job offer. Because H-1B status is company-specific, William was required to file a new H-1B petition for employment with the new company. The good news was that since William had previously been granted H-1B status, he was not subject to the H-1B lottery again.
Through its attorney, the new company filed an H-1B petition on William’s behalf. William was authorized to work for the new company upon filing of the new H-1B petition and began working shortly after. After the H-1B petition had been pending for several months, William was notified that USCIS had issued a Request for Evidence (RFE) in which they sought additional evidence to demonstrate that the position qualified as a specialty occupation. The company’s attorney responded to the request, however USCIS denied the H-1B petition.
William then found himself in quite a predicament. Since the H-1B petition had been denied, he was no longer authorized to work, had to immediately cease employment, and no longer held valid status. William was disheartened, filled with anxiety, and did not know what to do.
Determined not to give up, William consulted with Reeves Immigration Law Group (RILG). The attorneys at RILG explained that if William was still interested in pursuing employment with the company, he had two equally challenging options – appeal the denial decision or re-file the petition with USCIS. After discussing the pros and cons of each option with the attorneys at RILG, William and the company decided to refile the petition. This option was very challenging for several reasons. One reason was that H-1B adjudication had become increasingly difficult as a result of President Trump’s “Buy American and Hire American” executive order which specified that H-1B visas be awarded to the “most-skilled or highest-paid petition beneficiaries.” Another reason was that it is often very difficult to overcome a prior USCIS denial, especially in cases where the same employer is offering the same position. Additionally, time was of the essence as the new H-1B petition needed to be prepared and filed within William’s allotted 60-day grace period.
William and the company retained the services of RILG and worked closely with the team at RILG in preparing the new H-1B petition. Not long after filing, USCIS issued an RFE. Receiving another RFE filled William with panic as he was concerned that the new petition would be denied as well. The team at RILG worked with the company to prepare a comprehensive response to the RFE. The hard work paid off as within a few days of submitting the response, USCIS approved the H-1B petition.
H-1B visa adjudication has become increasingly difficult, however as William’s story shows, with experienced and highly competent immigration counsel, obtaining H-1B status, even after a prior denial is not impossible.