Headline, Immigration

What are your options if H-1B visa is denied?


Attorney Shah Peerally says while options are limited, one could explore visas such as O1 or EB-1.

Every year, hundreds of thousands of hopefuls apply for the employment-based, non-immigrant H-1B visa to the United States. While the United States Citizenship and Immigration Services sets a cap on how many such visas are to be issued annually — which is usually 65,000, plus another 20,000 for those with US master’s degrees — almost every year the number of applicants far exceeds the limit. This year, USCIS received 201,011 applications, registering a 5 percent increase in the number of applications from last year.

But, with the administration’s tough “Buy American, Hire American” policy, the number of H1-B denials has been skyrocketing. According to new data analysis from the National foundation for American Policy (NFAP), the number of denials went up in the first quarter of 2019. Based on USCIS data analysis, the denial rate has been 32 percent, which is a marked increase from 24 percent in 2018. When you compare the current denial rate with 2015, when only 6 percent applications were rejected, you would have an idea.

So, in case of an H-1B denial, what are your options?

Often there may be choices that most people are either unaware of or may not exercise. The American Bazaar asked immigration attorney Shah Peerally, of the San Francisco-based Shah Peerally Law Group PC, about the options for those whose H-1B applications are denied.

“Right now unfortunately the options are limited but are there a few,” he says, listing the following:

The O1 visa

One option could be to obtain an O1 visa. “Some people do qualify and don’t even know that they do,” Peerally says. An O1 visa is non-resident US visa for people who demonstrate extraordinary skills or abilities in any of the fields such as arts, sport, business or education.

EB-1 or EB-2

According to Peerally, there can be another option for those who can qualify for it. He says, “Those born outside India or even Indian citizens can file straightaway for EB1, EB2. They could also file a straight green card permanent residence.”

An EB-1 visa is a first preference category for individuals who are leaders in the field of science, educations, art, business etc. An EB-2 is a second preference based employment visa.

TN visa (Only for people from Canada and Mexico)

Peerally says, “Canadian and Mexicans can apply for TN visa.” A TN visa is a non-immigrant NAFTA professional visa that allows citizens of Canada and Mexico to work in the US in prearranged business activities for US or foreign employers.

Curricular Practical Training (CPT)

Curricular Practical Training (CPT) is a temporary employment authorization for F-1 visa non-immigrant foreign students in the US while enrolled in a college-level degree program. “One must note that some people are using CPT, which in turn is causing problems based on abuses,” Peerally says.



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