The right kind of job offer, in general, is one that involves duties that are of a "specialty occupation" or "professional" in nature where the foreign worker typically is required to have attained the equivalent of at least a U.S. Bachelor's Degree to competently carry out the proposed duties. The right type of company is one that is of a size and nature that would ordinarily have use for the proposed worker. And the right kind of foreign worker is one who possesses the equivalent of a US bachelor's degree in the form of education and/or experience, and with such education or experience having a correlation to the job being offered.
An H-1B visa or status is often denied or refused because the Petitioner; that is, the employer sponsoring the H-1B visa; does not appear to be a real, established, operating U.S. company with the capacity to hire and pay an H-1B worker. Generally, an established Petitioner is required to provide documentation, such as a tax identification number, tax returns, or financial statements, brochures etc. Insufficient documentation fails to prove the creditability of the application.
The petitioning employer should also be able to provide documentation of having an established office premises. Such evidence may include photographs of the employer's premises, website printouts, and any licenses or stock certificates, if necessary.
An H-1B visa or status can also be denied or refused because the offered employment does not qualify as a "specialty occupation" or if the applicant does not have the required education or experience. The petitioning employer must show that either:
- a bachelor's degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
- the degree requirement is common in the industry for the position;
- the job is so complex or unique that it can be performed only by someone with at least a bachelor's degree in a field related to the position;
- the employer normally requires a degree or its equivalent for the position; or
- the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
Further, if the H-1B petition states that the employee will work offsite at a client location, this may raise questions about whether the employee will truly be working for the petitioning employer, or whether the employer is trying to get around the rules by acting as a "job shop," placing employees on subcontracting assignments.
The petitioner will need to provide such evidence as a contract agreement, purchase order, and a clear statement that only the petitioner has control over the employee who will be working at the client location. Failure to include any of these in the initial visa petition may result in a denial.
Typically, the U.S. immigration authorities will not deny a case without providing plenty of advance warning and a chance to correct the problems. If your petitioning employer has submitted an H-1B petition to the USCIS, the agency will likely issue a request for evidence (RFE) before a denial. The USCIS requests will ordinarily either state a list of documentation that must be provided or a list of questions to explain in the response. The request will give a deadline by which the response is due. If the recipient does not respond by the deadline, the USCIS will deny the case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.