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 various categories such as H-1B, H-2, L-1, and so forth). Usually, the visa application process runs smoothly, and after the foreign national’s U.S. employer files the work visa application (called the I-129 petition) with U.S. Citizenship and Immigration Services (USCIS), the agency approves the petition and the foreign national is able to work in the United States.
However, there is no guarantee that USCIS will approve a work visa petition. It can deny one for any number of reasons. For example, foreign workers must possess specific qualifications in order to obtain certain work visas, and if USCIS finds that the worker does NOT possess these qualifications, USCIS will deny the visa application. USCIS could also deny the 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 you will not really work while you are in the United States.
If you have been issued a denial, it is very important that you, your employer, and your immigration attorney read the USCIS’s reasons for its denial. By understanding these reasons, you and your employer will be in a better position to proactively address/avoid these issues if and when your employer decides to file a second I-129 petition on your behalf.
This article explains the options that are available to foreign workers when USCIS denies their visa applications, whether the foreign worker is already in the U.S. in a different immigration status or currently outside the United States.
If you are outside of the U.S. when USCIS denies your petition, a couple of options are available to you. First, your employer can most 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 the I-129 requesting H-1B status on your behalf. In order to qualify for H-1B status, you (the foreign worker) must, in a typical case, possess at least a U.S. bachelor’s degree or foreign equivalent. (See "Who Qualifies for 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 in the I-129 petition. USCIS thus denies the petition. Your employer could file a new I-129 for you, making sure to include a copy of your degree.
Note that filing a new I-129 petition is not always a viable solution. For instance, there is an annual limit on how many H-1B visa petitions USCIS can approve. 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.
If filing another I-129 petition is not an option but you still want to come to the U.S., you may 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. Therefore, it is highly recommended that you 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 status to a new, employment-based status. Second, your employer is asking USCIS to extend your legal status in the United States.
For example, a foreign national may 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 other work visa status) and also to extend the foreign national’s legal stay.
If USCIS denies the I-129, your employer may 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 may 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, 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 may 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.