H‑1B Transfer Denial: Causes & Prevention – Alma

Starting a new job on H-1B status is an exciting step forward in your career. But before making the move, it's important to understand how the H-1B transfer process works and what could potentially go wrong.

The United States Citizenship and Immigration Services (USCIS) reviews every H-1B transfer petition carefully, and even small mistakes can lead to delays or denials. Many denials stem from preventable issues such as missing documents, errors in timing, or problems related to the new employer's eligibility.

By understanding the most common reasons for H-1B transfer denials, you can better prepare your petition and avoid unnecessary complications. 

Key Takeaways:

• Overview of how the H-1B transfer works and the chances of denial or rejection.
• Common reasons why H-1B transfer petitions are denied.
• Steps to prevent and lower the risk of denial.
• What to do if an H-1B transfer gets denied.

What is an H-1B Transfer?

An H-1B transfer is when an H-1B visa holder changes employers while maintaining their visa status. Technically, it's not a "transfer" but a new H-1B petition filed by your new employer. The key benefit is that you can begin working for the new company as soon as they file a proper petition with USCIS without waiting for approval.

The H-1B transfer process involves several important steps as follows:

1. The new employer files a Labor Condition Application (LCA) with the Department of Labor.
2. After LCA approval, the employer files Form I-129 (Petition for Nonimmigrant Worker) with USCIS.
3. You can start working for the new employer once they receive the I-797 (Notice of Action) from USCIS.
4. USCIS then reviews the petition and decides to approve or deny it.

Note: H-1B transfers are not subject to the annual cap or lottery system if the worker was already selected in the lottery before. However, someone moving from a cap-exempt employer to a cap-subject employer must go through the lottery process.

What are the Chances of an H-1B Transfer Denial?

Approval rates for H-1B transfer petitions are currently high when filings are done correctly and supported with strong evidence.

According to the latest USCIS data reports, in the Fiscal Year (FY) 2024, the denial rate for H-1B petitions for initial employment, which includes transfers, stood at 2.5%. This reflects a stable trend over the past few years, with rates of 2.2% in FY 2022 and 3.5% in FY 2023. Here’s more:

Note: A lower risk of denial does not mean zero risk. USCIS continues to closely review filings for compliance with all H-1B requirements.

Common Reasons for H-1B Transfer Denial

When USCIS denies an H-1B transfer petition, it's usually for specific reasons. Understanding these reasons can help you avoid problems in your own transfer process.

1. Issues with the Petitioning Organization

The new employer must meet certain requirements to sponsor an H-1B worker. Transfer denials often happen when:

• The offered role does not qualify as a specialty occupation that requires a bachelor's degree or higher.
• There is not a clear connection between the job duties and the degree field.
• The applicant’s degree is not equivalent to a U.S. bachelor's or is not sufficiently related to the role.

Small companies or startups often need to provide more documentation to prove they can support an H-1B worker.

2. Lack of Specialized Knowledge or Degree Relevance

USCIS requires that H-1B positions require specialized knowledge gained through at least a bachelor's degree in a specific field. Denial reasons in this category include:

• The job does not require specialized knowledge.
• Your degree is not related to the position.
• The employer failed to show why the role requires a degree.
• Your education and experience don't match the job requirements.

This issue is especially common in fields like IT, where USCIS often questions whether certain positions truly require specialty knowledge.

3. Insufficient Proof of Employer-Employee Relationship

USCIS looks closely at whether a true employer-employee relationship exists, especially when third-party placements are involved. Denials can occur when:

• The petition lacks clear evidence that the employer controls your work.
• The documentation doesn't show who sets your schedule and evaluates performance.
• There's no clear chain of supervision between you and the petitioning employer.
• The petition lacks detailed client contracts or work orders for off-site work.

Consulting companies that hire employees at client sites must provide clear evidence of their control over the employees' work.

4. Filing Errors and Documentation Problems

Sometimes, technical issues with the petition lead to denial or rejection:

• Missing or incomplete documentation.
• Filing fees were not properly paid.
• Errors on forms or inconsistencies between documents.
• Late filing, especially if your current H-1B status has expired.
• Lack of response to Requests for Evidence (RFEs).

These issues might seem minor, but they can seriously affect your immigration status.

5. Employer Unable to Pay Prevailing Wage

The employer must show they can pay at least the prevailing wage for your position in your geographic area. Denials happen when:

• The offered salary is below the prevailing wage.
• The employer can't prove they have the financial ability to pay the wage.
• Pay stubs or tax returns show inconsistent or insufficient income.
• The business appears to be struggling financially.

USCIS checks financial documents to make sure employers can pay the promised wages.

6. Past Immigration Violations

Your own immigration history can affect transfer approval:

• You previously worked without authorization.
• You stayed in the U.S. beyond your authorized period.
• You violated the terms of your previous status.
• There are gaps in your immigration status.

Even minor violations from years ago can return to cause problems with a transfer petition.

How to Lower the Risk of an H-1B Transfer Denial?

Strong preparation is key to lowering the risk of H-1B transfer denial. The petition must show that the job meets H-1B eligibility, the applicant is qualified, and the employer can support the role.

USCIS reviews every petition for consistency, credibility, and clear alignment between the job, the applicant’s background, and the employer’s operations.

Here are steps that help reduce the risk and improve approval chances:

• Confirm that the role requires a degree in a relevant field such as computer science, engineering, finance, or similar.
• Gather your educational records, such as degree certificates and transcripts, along with a third-party credential evaluation for foreign degrees.
• Collect records proving valid H-1B status, such as past approval notices, latest pay stubs, and W-2 (tax) forms.
• Make sure the Labor Condition Application (LCA) matches the job location and wage level listed in the petition.
• The employer should prepare evidence of business operations such as tax returns, payroll records, business licenses, or annual reports.
• For client-based roles, the employer should include contracts, statements of work, and client letters confirming job title, work location, and duration.
• Confirm consistency across all documents. The job title, duties, location, and wage must align across the petition, LCA, and supporting documents.

Tip: Premium processing helps when decisions are time-sensitive. With premium service, USCIS responds in 15 business days, which allows for faster correction if a Request for Evidence is issued.

What Happens if an H-1B Transfer Gets Denied?

A denial of an H-1B transfer petition ends the employee's ability to work for the new employer. If employment has already started based on the receipt notice, it must stop immediately after the denial.

The impact on legal status depends on whether the previous H-1B employer still holds a valid petition and whether the employment relationship remains active.

If the applicant resigned from the previous position before the denial, and no other petition is approved, remaining in the United States without valid status becomes a risk. In this situation, the individual would be considered out of status from the last date of employment.

How Long can Someone Remain in the U.S. after a Transfer Denial?

After an H-1B transfer denial, the ability to remain in the United States depends on the status held at the time of denial and eligibility for the 60-day grace period.

USCIS does not grant a grace period following a transfer denial. However, there is a general 60-day grace period that would apply when H-1B employment ends early, either due to resignation or termination. This grace period begins on the last day of employment and allows for one of the following actions:

• File a new H-1B petition with a different employer.
• Change to another valid visa status.
• Prepare to leave the country without triggering unlawful presence.

The grace period can only be used once per authorized validity period and cannot extend beyond the I-94 (Arrival/Departure Record) expiration date. Staying beyond that date without valid status can lead to violations.

Note: If the previous H-1B petition is still valid and the person continues working for that employer, they remain in status under that petition and do not need to rely on the grace period.

Working after an H-1B Transfer Denial

Employment with the new employer must stop immediately after an H-1B transfer denial. USCIS does not permit continued work for the new employer once the petition is denied, even if employment began based on the receipt notice.

The denial notice is the final decision on the petition. Working after the denial without approved work authorization violates H-1B status and affects eligibility for future immigration benefits. Returning to the previous H-1B employer is allowed only if the earlier petition remains valid and the employer agrees to resume employment.

A new H-1B petition must be filed and approved to resume work lawfully, or valid status must be maintained through another existing petition. There is no exception allowing work after denial without a valid and approved petition in place.

What are the Next Steps after a Denial?

A denial of an H-1B transfer petition does not always mean the end of options. The next steps depend on the timing of the denial, current status, and the availability of previous H-1B approval.

• Return to a prior employer if the previous H-1B petition is still valid and the employer agrees to resume the employment relationship. This can restore valid status without needing to leave the country.
• File a new H-1B petition with another employer or refile with the same employer. This should be done quickly and must include all necessary evidence to address the previous denial reason. If the status has already lapsed, consular processing will be required before resuming work.
• Submit a motion to reopen or reconsider if the denial involved missing documentation or a mistake. This must be filed with strong supporting materials and within the timeframe listed on the denial notice.

Note: In many cases, the denial is due to missing proof, mismatched job descriptions, or lack of clarity in the role. Before any refiling or next step, it is important to review the USCIS denial notice (sent through mail) carefully to understand what was found lacking.

How can Alma Help Avoid H-1B Transfer Denials?

At Alma, we know how stressful and challenging an H-1B transfer denial can be for you and your career. We're here to help you through this challenging time with our expert legal guidance and proven track record of success. Here's how we can help you:

• We carefully review every case to spot potential problems and process documents with a fast two-week turnaround time.
• We respond quickly and effectively to any questions from USCIS and keep you informed about the case status throughout the process.

Don't let an H-1B transfer denial affect your American dream. Let us be your partner on this journey. Schedule a free consultation with Alma today!

Final Thoughts

H-1B transfer denials can be challenging, but understanding the process and reasons for common denials helps you navigate this complex situation. Proper preparation and documentation can prevent most problems before they lead to a denial.

The key to a successful H-1B transfer is thorough preparation, accurate documentation, and attention to detail. Even small mistakes can lead to denials that disrupt your career and immigration status. Proper preparation or working with experienced professionals significantly increases your chances of approval.

Alma makes the entire process easy by guiding you through each step, from understanding the reason for the denial to preparing a strong response. Get started with a free consultation today!

FAQs

Can an H-1B transfer be filed while the previous transfer is still pending?

Yes, a new employer can file another H-1B transfer while one is still pending. However, only the petition that gets approved will authorize valid employment.

What if the job location changes after filing the H-1B transfer?

If the job site changes to a different geographic area, an amended H-1B petition may be required. The Labor Condition Application must reflect the correct location and wage.

Is a new visa stamp required after an H-1B transfer is approved?

No new stamp is needed if the current H-1B visa in the passport is still valid. The approved petition can be used for travel along with the old visa stamp.

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