Thousands of foreign nationals enter the United States every year by applying for and receiving a work visa, and several important industries in the United States depend on these immigrant workers. But what if your request to work in the U.S. is denied? Can a work visa lawyer help?
Whether you are already here or if you’re still outside of the U.S., what are your options if your request to work in the United States is rejected?
You can’t apply for an employment visa unless you already have an employment offer from a U.S.-based employer. The first step is that the prospective employer must submit a Form I-129 (“Petition for a Nonimmigrant Worker) to U.S. Citizenship and Immigration Services (USCIS).
Before any work visa will be issued, the I-129 petition must be approved. Most I-129 petitions are granted without difficulty, but you cannot be certain that an I-129 petition will be approved.
WHAT IS FORM I-129?
Approval of Form I-129 qualifies the worker to begin or to maintain employment if the worker is already in the U.S. If he or she is not already in the U.S., an approved Form I-129 may be used to submit an employment visa request.
Form I-129 is used by USCIS for a number of purposes. It’s a complicated document which requires information about the employer, the job being offered, and the foreign worker receiving the job offer.
Most employers will need some help with Form I-129, especially if they’ve never before completed the form. It’s 36 pages, not including the 29 pages of instructions. Don’t hesitate to seek the help and advice you need from an Ohio immigration attorney.
WHY MAY AN I-129 PETITION BE REJECTED?
The different work visas each entail different and precise requirements, but every work visa requires foreign workers to meet particular requirements and have specific qualifications.
Should USCIS determine that an individual does not meet the requirements or possess the qualifications for a particular work visa, or if the information on Form I-129 is inaccurate or incomplete, USCIS will reject the I-129 petition.
If an I-129 petition is denied, it is imperative for both the prospective worker and the sponsoring U.S.-based employer to understand the reasons behind the rejection – especially if they choose to submit another Form I-129.
If you are the prospective worker, what are your options if an I-129 petition is rejected? Those options will depend on whether you currently are outside of the country or already here in the U.S.
AFTER A REJECTION, WHAT ARE YOUR OPTIONS IF YOU’RE NOT IN THE U.S.?
If you’re not in the United States, after USCIS rejects an I-129 petition, you have several courses of action available.
In many cases, the prospective U.S.-based employer will reboot the process and simply submit another I-129 petition. This the best strategy if the first I-129 was denied for a reason or reasons that can be easily remedied by the employer.
Here’s an example: To receive an H-1B visa, an international worker must have at least a bachelor’s degree from a U.S.-based university – or have the equivalent of that degree.
If the sponsoring employer did not include a copy of the worker’s degree along with the Form I-129, the I-129 will be denied, but the problem is easily fixed by including the copy with a second Form I-129.
However, when a Form I-129 is denied for one or more other reasons, merely refiling the I-129 after checking it for accuracy and completion will not always be enough to resolve the reason or reasons for the denial.
For example, under current immigration law, only 85,000 H1-B visas can be issued annually. If all 85,000 are issued before the employer submits a second I-129, no H-1Bs will be available until the next year.
AFTER A REJECTION, WHAT IF REFILING FORM I-129 IS NOT AN OPTION?
What if a prospective employer’s I-129 is rejected, you are not in the United States, and filing the I-129 a second time isn’t a possibility?
If you want to enter the United States, but submitting a second I-129 isn’t an option, you may want to consider applying for a different category of nonimmigrant visa – for a student visa or for a tourist visa, for example.
While there is no yearly cap on these other visas, every visa entails its own specific qualifications and requirements.
In this circumstance, you will need to arrange a consultation with an experienced immigration attorney – online or by phone from wherever you may be – about the best way to move forward in your particular situation.
AFTER A REJECTION, WHAT CAN YOU DO IF YOU ARE ALREADY IN THE U.S.?
If you’re here in the United States and your employer files an I-129 petition, the employer is making two requests:
1. to change your current immigration status to an employment-based status
2. to extend the length of your stay in the U.S.
For instance, if someone is in the United States with an F-1 student visa, wishes to remain in the U.S, and has a job offer from a U.S.-based employer, the employer can submit the Form I-129 asking USCIS to change the person’s immigration status and to extend the person’s stay.
If USCIS rejects the I-129 petition, the employer can submit another I-129 petition to correct any errors or omissions in the original petition.
If those errors or omissions cannot be remedied, another option is attempting to extend the person’s current immigration status.
WHAT IF YOUR IMMIGRATION STATUS CAN’T BE CHANGED OR EXTENDED?
If someone’s immigration status can neither be changed nor extended, that person must depart from the United States when his or her current status expires. Those with an F-1 student status have a sixty-day period from the date their studies are completed.
Remaining in the U.S. beyond sixty days, in this instance, constitutes unlawful presence, which can have serious ramifications that could include deportation or a finding of inadmissibility.
In today’s global marketplace, employers must have sound advice regarding foreign-born workers and immigration laws.
Foreign-born workers also need accurate legal information. Immigration law is complex, continually changing, and non-compliance penalties are severe.
If you desire to work in the United States, or if you hire foreign workers in the U.S., you must have the advice and insights of an experienced Columbus immigration lawyer.