H1B Selected then Denied

Source: Immigration Girl http://goo.gl/CqcNjF

As if the lottery system weren’t stressful enough, once you get through the lottery and are actually selected for a cap-subject H-1B, you still have to wait and see if the petition will ultimately be approved. This year (FY2016) many regular processing petitions remained pending well into November and December due to slow processing times and Requests for Evidence. I am often contacted by applicants who were so happy to be selected, only to later end up with a denial. What can you do in that situation?

In cases that do not involve the H-1B lottery, I tend to lean towards re-filing the petition as an option to overcome denial. Unfortunately, for cap-subject petitions, re-filing is not an option since the filing window will not open up again until April 1st.

That means that there is really only one option:

Motion to Reopen/Reconsider/Appeal

While I won’t get into the specifics of what a Motion versus an Appeal or the difference between Reopen and Reconsider, there are some important points to be aware of if you choose to act on the denial of your H-1B petition.

1. a motion or appeal does not give you status and does not give you work authorization: you should discuss with your attorney regarding options for maintaining your status while you wait for the result.

2. if the appeal is forwarded to the Administrative Appeals Office (AAO) you may not hear back until it is time to file in next year’s lottery. The question then becomes whether you should file again in April or wait to hear back on the appeal. If you choose to file again, you may be asked to withdraw the pending appeal. Note that would only occur if your new petition is selected in the lottery. This is one reason why I feel that filing again is a good option. Of course, the fees have to be paid again, but if you don’t file again and your appeal ends up denied sometime in May, you just lost your chance to file and have to wait 11 more months.

There are lots of things to consider in the event of a denial of a cap-subject H-1B petition. These are just a few. You should always consult with a qualified immigration attorney in the event of a denial to come up with the best strategy for your situation.