What To Do if Your H-1B is Denied

For the fiscal year 2015 filing period, from April 1, 2014, to April 7, 2014, approximately 172,500 H-1B petitions were filed.  As USCIS received 87,500 more petitions than it could otherwise accept, a lottery was conducted to determine which timely filed petitions would be accepted for processing.  This lottery is a computer-generated random selection process that has left many foreign nationals desperate for news and options.  The lottery was conducted on April 10, 2014, and over the next six weeks, notices are being sent to inform petitioners whether their cases had been selected.  Based upon past experience, it is anticipated that all receipt notices for selected H-1B petitions will be received by the middle of May and that all petitions that were not selected will be returned with uncashed checks by the end of May.

Unfortunately, petitioners will be unable to file a new H-1B filing until the fiscal year 2016, which will be effective on April 1, 2015.  Please keep in mind that cap-exempt H-1B filings are not affected.  Thus, H-1B extensions and change of employers/transfers are all still permitted.

Instead of waiting one year to refile for an H-1B, there are other possible options that may be available to companies and their employees.

1. For those who have been working for the sponsoring company in OPT (optional practical training), it may be possible to obtain a seventeen-month extension of work authorization if the employee’s degree was in Science, Technology, Engineering or Mathematics.  This “STEM” OPT seventeen-month extension of work authorization is a valuable tool to keep a foreign national in valid status in the U.S. while working for his/her sponsoring employer until a new H-1B filing can be made in 2015.  Of course, the company must be enrolled in E-Verify to be eligible for the STEM OPT extension.

2. Obtain an alternative immigration status in the United States, such as a visitor or student status.  For students who were not selected in the H-1B lottery, and who are unable to secure a change of their status, they will have no choice but to leave the U.S. before the end of their sixty-day F-1 grace period.

3. Obtain an extension of their existing work status, such as those employees who were already in TN, E or L-1 status.

4. Explore the options for alternative work visas with immigration counsel.

While it is unfortunate that the United States only allows for a total of 85,000 H-1B visas each fiscal year, there remains hope that comprehensive immigration reform may provide a more flexible system that is not dependent and limited by a lottery.  Real reform would hopefully allow for skilled and professional workers and their U.S. employers to benefit from a common-sense approach and not the luck of the draw.

Written by: Ashik Jahan, Esq.