Factors Leading to H-1B Transfer Denial Post-LCA Approval

When it comes to an H-1B transfer, the approval of an Labor Condition Application (LCA) followed by receipt is often considered a significant milestone. However, several factors can still lead to the denial of an H-1B transfer petition. This article will examine the key reasons why an H-1B transfer might be denied even after the LCA has been approved.

Employer-Employee Relationship

The U.S. Citizenship and Immigration Services (USCIS) scrutinizes the employer-employee relationship to ensure its validity. A frequent reason for denial is a lack of a genuine employer-employee relationship. This can happen if the new employer lacks sufficient control over the employee or if the employment does not occur at the employer's primary location. Both situations can cast doubt on the authenticity of the employment arrangement.

Job Requirements

The work must meet the H-1B specialty occupation criteria. The position must require a minimum of a bachelor's degree or higher in a specific field, or equivalent experience. If USCIS determines that the job does not align with these standards, or if the employee’s qualifications do not match the job requirements, the petition may be denied. This ensures that only highly skilled workers are granted H-1B status.

Wage Compliance

The employer must comply with wage obligations. The wage offered to the H-1B worker must be the prevailing wage for the position. USCIS will review the offered wage to ensure it meets the prevailing wage requirements. Non-compliance with these wage standards can result in the denial of the petition, emphasizing the importance of accurate wage calculations.

Non-Compliance with Immigration Laws

A history of non-compliance with immigration laws or fraudulent practices can lead to denial. If the employer has a track record of violating immigration regulations, such as past H-1B petition denials due to fraud, misrepresentation, or other issues, this non-compliance can be a determining factor in the denial of the current petition. This underscores the importance of maintaining a clean immigration history.

Insufficient Evidence

To ensure the legitimacy of the petition, USCIS requires adequate documentation. If the evidence provided is insufficient or fails to support the job offer, the petition may be denied. This includes documentation of the employee’s qualifications, job duties, and the prevailing wage. Thorough documentation is crucial to meet USCIS requirements.

Changes in Employment Conditions

Significant changes in employment conditions after LCA approval, such as changes in job title, duties, or salary that differ from the initial filing, can lead to a denial. USCIS mandates that these changes be consistent with the LCA and any initial petition filings. Any deviation might trigger a review and result in denial.

Background Issues

Unresolved legal issues regarding the employee, such as immigration violations or criminal records, can adversely affect the transfer application. These issues can cast a shadow on the legitimacy of the H-1B petition and may result in denial. Addressing any potential issues upfront is crucial for a successful application.

Employer’s Ability to Pay

USCIS assesses the employer's ability to pay the offered wage. Any financial concerns or doubts about the employer’s ability to meet this requirement can lead to a denial. Providing detailed financial documentation and demonstrating stability and solvency are essential for a smooth petition process.

It is essential for both the employer and the employee to ensure all aspects of the H-1B transfer petition comply with USCIS regulations and guidelines to minimize the risk of denial. This article has highlighted some of the critical reasons for denial post-LCA approval, underscoring the importance of thorough preparation and due diligence in the petition process.