What are the alternatives after your H-1B visa gets rejected or denied?

options after H1B visa denial

Every upcoming Fiscal year, there are large numbers of petitions which are submitted to the United States Citizenship and Immigration Services (U.S.C.I.S) for H-1B visas. Every year, there is limit to the number of applications which can be filed. Only a fixed number of 85, 000 are permitted to receive an H-1B visa per year; which means thousands of foreign nationals will apply but only few will get the visa acceptance. Like this year the H-1B visa filing for Fiscal Year 2018 reached its cap within five days from its opening. As the number of people applying for H1B visa is very large; thus the chance of H1B visa denial also increases. There can be various reasons for the H-1B visa rejections.  If due to any reason, your H-1B visa gets denied then always keep Plan B ready, do not get dishearten.

If H1b visa denial happens when you are not in the US or never been to US

If you are outside of the U.S. when your petition was denied, a couple of options are available.

First option is that your employer can file a second I-129 petition on your behalf. This strategy will work best if the employer can easily address the flaw USCIS found in the original petition and able to produce a strong petition to overcome the previous denied petition.

Let’s say you have a U.S. bachelor’s degree, but your employer forgot to provide a copy of your degree in the I-129 petition. USCIS thus denies the petition. Your employer then could file a new I-129 on your behalf and must include a copy of your degree.

Note that filing a new I-129 petition is not always a feasible solution. For example, there is an quota for how many H-1B visa petitions U.S.C.I.S can approve. If the limit is reached after U.S.C.I.S denies your petition then filing another petition on your behalf by the employer will not be possible until the following year.

OPT for F-1 visa and Apply for a Student Visa

If filing another I-129 petition is not an option, you may be able to come in a non immigrant visa category such as F-1 visa. F-1 is a student visa for studying in USA and you can also work for a year under OPT is you are on F-1 visa. There is no quota limit for international students, but different documents and qualifications are required to apply for student visas. Therefore, it is highly recommended that you should consult an experienced immigration attorney if you want to come to the U.S.

Options after H1B visa denial when you are in the United States

If you are in the U.S. and your employer files an I-129 petition, your employer is requesting any of the two things from the petition. First, your employer is requesting USCIS to change your immigration status from current status to a new, employment-based status. Second, your employer is requesting USCIS to extend your legal status in the United States.

For example, F-1 visa student in US upon completing the study program wants to remain in the U.S. and work for a U.S. employer. To do so, the students can get approval for OPT and work under OPT status but what after the OPT validity expires.  Now the U.S. employer must file the I-129 petition to change the foreign national’s status from F-1 to H-1B (or other work visa status) and extend legal status.

If USCIS denies the I-129, employer can file a second I-129 petition on your behalf, and attempt to correct any flaws that USCIS found in the first petition.

Or, if the shortcomings cannot be corrected at this time, it may be possible to extend your F-1 status in order to remain in the U.S. legally (by opting a master’s program or another degree program).

Let’s look out some more alternative steps which can be taken after the H1B Visa denial:

  1. Continue with further studies of master’s degree and pursue with F-1 status

Generally the status of F-1 visa is given to the International students who are willing to take up degree in USA. These foreign national are permitted their stay in USA based on the F-1 status.

They are given the benefit to work based on the OPT and CPT which are the curricular related programs. Under these work authorization, they can work off-campus for the limited number of hours per week.

Thus, even if your H-1b is denied while you were on F-1 status for bachelor’s degree, you have an option of applying once again by taking up F-1 status for the master’s degree. You can apply for F-1 visa extension. This is the most common way to remain in the United States after the rejection of H-1B visa.  If you are pursuing masters then try taking up some PhD course.

The criteria for filing H-1B visa annually is 65,000 for those on bachelor’s degree whereas the it cut downs to 20,000 per year for those continuing master’s degree. Thus If you apply for H-1B status based on master’s degree, the chances of getting visa approval would increase.

Read more : H-1B visa premium processing SUSPENDED

  1. OPT STEM Extension

For those foreign nationals who are getting the Bachelor’s degree in the majors like science, technology, engineering and mathematics have the option of acquiring OPT STEM Extension and who meet other specified requirements, to apply for a 24-month extension of their post-completion OPT. The 24-month extension will replace the 17-month STEM OPT extension previously available to STEM students.  This proves to be beneficial for most of the International students giving extra time to stay in USA. The application for getting the STEM extension benefit must be made before the 12-month OPT time period came to an end.

Read more: Want OPT Extension? Here Are Some Tips

  1. TN (Trade NAFTA)

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada, and Mexico. It is for the foreign immigrants from the Canada or Mexico who have the professional position and continue to tie the bonds with the country in prearranged business activities for U.S. or foreign employers.

  1. Employment Based Visas

This is the options for those who are working on OPT and have the EAD work authorization which will not expire for at least 6 months to 8 months. Candidate can utilize this time span to file and obtain permanent residency under the categories of the employment apart from H-1B.

  1. Overseas Affiliates:

The other option one can try after the denial of H-1B visa is to apply for L-1 visa if the company has the parent company in the USA. Not necessarily parent company but even the affiliate or subsidiary office would also do. There is no harm in making the attempt.

  1. Extraordinary Ability

The other possibility is to qualify for O-1 visa which are given to the people with extraordinary abilities in the field of science, arts, education, or business. This is granted by USCIS for those who need visa but the time span of the visa expiration is for 3 years which means having the temporary residency in USA, the beneficial can apply for PR in this time period.

For International Students seeking OPT Jobs, OPT Nation has all the OPT, CPT and H1B providing employers. International students will find it beneficial to find the employer’s by searching through OPT Nation and find the latest jobs for international students or H-1B visa workers.