One of the most common ways that foreign nationals come to the U.S. is by applying for a work visa (technically known as a nonimmigrant visa in one of various categories such as H-1B, H-2, or L-1). Usually the visa process runs smoothly, and after the foreign national's U.S. employer files the initial I-129 petition) with U.S. Citizenship and Immigration Services (USCIS), the agency approves it and the foreign national is able to quickly move forward with the process and ultimately work in the United States.
However, there is no guarantee that USCIS will approve anyone's I-129 work visa petition. It can deny one for any number of reasons. This article explains the options that are available to foreign workers after such a denial, in situations where the foreign worker is either already in the U.S. in a different immigration status or currently outside the United States.
Basic eligibility criteria are an important consideration. Foreign workers in the U.S. must, for starters, possess specific qualifications in order to obtain certain work visas. USCIS often finds that the worker does NOT possess these qualifications, and will deny the petition accordingly.
USCIS could also deny the work visa petition because it decides that your employer will not really be controlling your work, or that there is not a bona fide job position that you will be taking and thus you will not really work while you are in the United States.
If you have been issued a denial, it's crucial that you, your employer, and your immigration attorney read USCIS's reasons. This will put you in a better position to address or avoid these issues if and when the employer decides to file a second I-129 petition on your behalf.
If you are outside of the U.S. when USCIS denies your petition, a couple of options are available.
First, your employer can likely start over and file a second I-129 petition on your behalf. This strategy will work best if it appears that your employer can easily address the shortcomings USCIS found in the original petition.
For example, let's say your employer filed an I-129 requesting an H-1B visa on your behalf. In order to qualify, you (the foreign worker) would in a typical case need to show at least a U.S. bachelor's degree or foreign equivalent. (See Improving Your Chances of Getting an H-1B Visa for more on these eligibility requirements.)
Let's say you have a U.S. bachelor's degree in mathematics, but your employer forgot to provide a copy of your degree with the I-129 petition. USCIS thus denied the petition. Your employer could file a new I-129 for you, making sure to include a copy of your degree.
Filing a new I-129 petition is not always a viable solution, however. For instance, there is an annual limit on how many H-1B visa petitions USCIS can approve for individuals being sponsored for the first time by most types of employers or organizations (with exceptions). If that limit is reached after USCIS denies your petition but before your employer files another petition on your behalf, doing so will not be possible until the following year. (Though you could seek out a job that's exempt from this annual cap.)
If filing another I-129 petition is not an option but you still want to come to the U.S., you might be able to come in a different nonimmigrant visa category, such as an F-1 student. There is no annual limit to how many foreign students may come to the U.S., but different documents and qualifications are required for student visas. Consult an experienced immigration attorney if you want to come to the U.S. in a different status.
If you are in the U.S. and your employer files an I-129 petition, your employer is requesting that USCIS do two things. First, your employer is asking USCIS to change your immigration status from your current one to a new, employment-based status, or to allow you to continue in the same status if you're currently working for another employer. Second, your employer is asking USCIS to extend your legal status in the United States.
For example, a foreign national might be in the U.S. in F-1 student status. Upon completing the study program, the student wants to remain the U.S. and work for a U.S. employer. To do so, the U.S. employer must file the I-129 petition asking USCIS to change the foreign national's status from F-1 to H-1B (or to some other work visa status) and also to extend the foreign national's legal stay.
If USCIS denies the I-129, your employer might be able to file a second I-129 petition on your behalf and attempt to correct any deficiencies that USCIS found in the first petition.
Or, if it seems that the deficiencies cannot be corrected at this time, it might be possible to extend your F-1 status in order to remain in the U.S. legally (such as by applying to a master's program or to another bachelor's program).
If you do not extend your status and USCIS denies your change of status, then it is important for you to leave the U.S. when your status expires. If you are in F-1 status, for example, you have a 60-day grace period from the end date of your degree program, during which time you can wrap up your affairs and leave the United States. If you remain in the U.S. past your 60-day grace period, you will likely begin to accrue unlawful presence, which can result in serious immigration consequences, including a finding of inadmissibility if and when you apply for future entry to the United States.
If USCIS denies the I-129 petition, your employer can file an appeal. USCIS will enclose information about the appeal process with the denial notification. The appeal will be decided on by the Administrative Appeals Office (AAO).
Employers choosing to appeal a denial must complete and file USCIS Form I-290B. They must file the I-290B within 30 calendar days (which include weekends) from the date of receiving the denial (33 days if the decision arrived by mail).
Be sure your employer includes additional evidence with the appeal if you feel that this documentation strengthens your case.
Also be sure your employer mails the I-290B to the correct address, or USCIS will reject it. Additionally, you must include the appropriate filing fee. You can find this information at the USCIS I-290B page.
Historically, appeals took a long time to process, up to three years in some cases. Per the AAO's posted time frames (as of late 2021), however, it's taking about six months to receive a decision on most I-129 appeals. Some H-1B appeals take longer. You can view these time frames at the AAO Processing Times website. Because of this, and the fact that an appeal involves convincing the government that it made a mistake, simply reapplying is often easier.
To decide whether to appeal the petition denial, you'll want to talk with your employer and an immigration attorney to evaluate your current immigration status, the timeline for a decision on the appeal, and whether there is another visa option. In H-1B cases that USCIS selected in the annual "lottery," it might make sense to appeal, because USCIS might not select your petition if your employer tries again next year. These are all key points to consider carefully but quickly.