By Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas
A company approached me thinking that they had to file their employee’s H-1B in the new H-1B lottery, again, after their employee’s visa petition was approved with USCIS but rejected at the consulate. What happened in their case was that the H-1B project was approved, but actual visa rejected after receiving a 221(g). This resulted in the H-1B employee being stuck abroad for about eight months not being able to start their project.
H-1B approval, but visa rejection occurs often. Sometimes, even if USCIS approves a project, the consulate may not approve the visa wherever the consulate finds insufficiency. The bottom line is that USCIS and consulates view cases differently. Even if USCIS thinks a petition is sufficient for approval the consulate may not.
When a new H-1B visa is rejected at the consulate, it is common to think that the H-1B is “dead” and that the employer must send their employee through the lottery again. However, this is not true. If the H-1B is considered “counted against the cap” and approved there is some possibility that another subsequent H-1B petition can be filed to correct any errors that caused the H-1B visa denial in the first place.
In many cases, an end-client letter or another piece of evidence could have been missing in the first H-1B petition to cause the consulate to reject the visa. Equally as common, is that the H-1B employee was simply not prepped enough to present their case at the visa interview and be ready for specific questions that the consulate officer asked them.
Overall, getting the visa after a visa rejection is a tricky situation that is not always possible, but in certain cases there may be a remedy to do a 180 turn around and get the visa after all. In the above case, the company was able to successfully take a second stab at getting the visa. After advising them of the proper documentation that would be needed to beat the odds and after thoroughly advising the employee on how to navigate the visa interview, this H-1B employee was able to get the visa, travel to the U.S. and start their project after all.
The main takeaway is that a visa rejection of a new H-1B approval may not require an employer to file in the lottery again. It is always best to sit back and assess the next steps and possible routes to take after a consulate visa rejection before thinking all is lost.