What to Do After H-1B Petition Denial: How and When to Submit I-290B MTR/Appeals?

An unfortunate fact about the current H-1B climate is the historically high request for evidence (“RFE”) and denial rates for H-1B petitions.  Government data and research by many organizations (see National Foundation for American Policy (NFAP) analysis) have shown historically high H-1B denial rates – with some first-time H-1B petitions having a denial rate of 32% compared to 6% just four years ago.  Our firm has been very active in not only helping petitions prevent such denials but also in helping with executing post-denial strategies.  This article seeks to outline practical options and strategies for dealing with an H-1B denial and highlight the different strategies and options between cap denials and all other H-1B denials.

Understanding the Reason for Denial and Beneficiary Status Options

One of the first key steps following an H-1B denial is to understand the exact reason for the denial.  USCIS adjudicators rely on boilerplate denial templates; unfortunately, and especially over recent months, adjudicators have started to issue denial decisions with little or no explanation as to the exact and specific reasons for a denial.  In practical terms, a denial letter can be several pages long, with 99% of it being standard boilerplate language, including elaborate references to case precedent, but with only sentence or two of actual case-specific language.

The result is that petitioners and their attorneys are often left making educated guesses as to what may be the exact reason for a denial based on reviewing the initial filing and any RFE responses.

Among the more common denial reasons are specialty occupation (see our alert on this topic), end client documentation including right of control and/or availability of work at the end client worksite, and educational qualifications of the beneficiary including non-accredited/for-profit universities.

Another key aspect to analyze immediately after a denial (ideally this should have been considered prior to a denial being issued) is the beneficiary’s status options for those who are in the U.S.  H-1B beneficiaries applying for their first H-1B under the annual “cap” are often on F-1 student, L-1 or L-2/H-4 dependent status and may be able to independently continue to remain in the U.S. despite the denial but some may require immediate steps such as status extensions or similar.  See our article on alternative H-1B visa options.

Important Reminders about “Appeal”

We use the term “appeal” in the context of H-1B petitions to mean filing an I-290B, Notice of Appeal or Motion, seeking a Motion to Reopen or a Motion to Reconsider (“MTR”) a denial decision by USCIS.  Most often this is the next step to be followed following an H-1B petition denial and the term “appeal” used in this article refers to the I-290B process.

Filing of an MTR appeal does not grant status or otherwise keep the H-1B “pending” while the appeal is pending.  Only if the appeal is successful and the MTR approved (denial reversed, H-1B petition approved), then the H-1B beneficiary gets status approval often with the validity dates noted in the actual H-1B petition.

Also, an MTR appeal must be filed within 33 days of the denial decision (or 30 days if denial decision received by fax or email).  This makes for a very time-sensitive process especially since an MTR appeal should ideally include a substantial brief to outline in detail why USCIS was wrong in denying the case or to provide new facts or information.

H-1B Cap Petitions – Appeal Only Choice

For denied H-1B cap petitions filing an “appeal” is the only choice (other than giving up and possibly waiting until the next H-1B cap “season”) assuming the H-1B cap has been reached and closed for the fiscal year (which has been the case for the previous many years).

When we counsel H-1B employers who have received a cap denial, after having analyzed the reasons for denial, we often emphasize that an appeal is the only viable option to try to get an H-1B cap petition approved within several months.  The alternative to wait until the following April to file a new H-1 cap petition, take chances under the random lottery and then hope for an approval with a start date of the following October 1^st – this means having to wait 12, perhaps more, months for a chance for an H-1B approval.

H-1B Extensions, Amendments or Transfers – Appeal vs. Refiling

H-1B petitions seeking extension, amendment or transfer certainly can and should consider filing an appeal.  But in many cases there may be a faster alternative to resolving the problem caused by the denial.  In the vast majority of cases, the H-1B beneficiary has already been counted under the H-1B cap in the past and is, therefore, cap-exempt for subsequent filings.  This means that as an alternative (or in addition) to filing an appeal, the H-1B petitioner (or another employer) can consider re-submitting the H-1B petition to USCIS.

As a general matter, the fact that USCIS has denied a petition does not necessarily mean that they will deny a subsequent petition by the same employer for the same beneficiary and for the same position.  Unfortunately, adjudicators vary in their (often subjective) reading of a case and a refilling should ideally be supported by more extensive, new, better prepared or presented or otherwise improved documentation.

A refilling of an H-1B petition is a substantially faster way to get a decision by USCIS compared to an appeal.  An MTR appeal can take easily between 3-6 and sometimes upward to 12 months while a refilling of an H-1B petition can take 15 days for a decision when premium processing is elected and paid for.  We understand that it is tempting to appeal a case where there is a clear government error, but in terms of solving the immediate problem and getting the H-1B petition approved, a refilling is often the faster way.

In some cases a denial decision leaves the H-1B beneficiary without status – for example, H-1B extension where the denial is issued after the beneficiary’s petition and I-94 have expired.  In such cases it is possible to refile a petition and ask the government to issue an approval with retroactive effective date (nunc pro tunc) which, if successful, would put an H-1B worker back in status.  This works best for refilings done as result of extension with the same employer but it is also doable for H-1B transfer as well .  This approach allows the possibility of “fixing” an H-1B worker’s status without having to leave the U.S. but it has to be done quickly and very carefully to avoid issues such as overstaying I-94 (unlawful presence of more than 180 days means ban on entering the U.S.).  Please see our article on this topic for more details.

Mechanics, Timeline and Chances of an “Appeal”

As noted above, the MTR appeal must be filed very soon after USCIS issues a denial – often within 30 or 33 days after the denial decision.  The MTR filing requires Form I-290B together with fee and should be ideally accompanied by a legal brief.

A motion to reconsider must state new facts to be supported by documentation and a motion to reopen must state specifically the reasons for reconsideration and be supported by relevant legal precedent decisions to establish that USCIS was wrong.  As a result, an appeal must specifically address either or both of these points and provide clear explanations as to the new facts or the misapplication of the law.   Not doing so will cause the MTR appeal to be simply denied as not meeting the MTR requirements.  This makes it important to include a legal brief specifically explaining how and why the denial was incorrect.

Once the MTR appeal is filed, the case is eventually transferred to the service center which issued the denial decision and the appeal is often reviewed by the same officer (or unit) which issued the denial in the first place.  As a result, it is important to prepare the MTR appeal in the best possible way in order to change the adjudicator’s mind and to convince them that they were wrong.  This is often a fairly high bar.

Our recent experience indicates that an MTR appeal takes 3-6 and sometimes up to 12 months to get a decision from USCIS.  As noted earlier in this article, the filing of MTR appeal does not normally grant status or continuing work authorization (as if H-1B is pending) while the MTR appeal is pending so employers and beneficiaries should understand that.  Only in the event the MTR appeal is successful and the H-1B petition granted, then the candidate would normally be granted status for the term requested in the H-1B petition.

Our clients always ask us what are the chances of success during MTR appeal.  Unfortunately, this is an extremely case-specific question and even then, it is hard to predict whether the USCIS adjudicator will change their mind.  However, by the time an H-1B denial is issued, there is often substantial case documentation on record (H-1B petition, RFE notice, RFE response, denial decision) and we are generally able to identify and focus on the key factors for approval.

No-obligation Quote and Case Analysis

We have been very deeply involved in H-1B petitions and especially we have been paying very close attention to H-1B denials over the last 12-24 months, as specialty occupation and third-party end client denials have skyrocketed and, having handled hundreds of such cases, we feel that we have been able to understand the facts and documents USCIS adjudicators expect  to see in order to issue an approval.    Our office will be happy to provide consultations or assistance with putting together an MTR appeal.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with an appeal), we offer phone consultations.

Conclusion

The dramatic increase in denial rates for H-1B petitions without substantive change in the rules and regulations means that there are many (thousands) of H-1B denial decisions which are incorrect and can or should be appealed.  The suitability of an MTR appeal varies between types of cases and personal situations but we have found that many employers (especially for cap cases) should at least evaluate and consider the MTR appeal option.

Our office will continue monitoring related developments and provide updates.    Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with H-1B petitions including MTR appeals.    Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.