What to Do When Your H-1B Visa's PERM Request is Denied

When it comes to American immigration, the H-1B visa is one of the most popular options for foreign-born workers looking to gain entry into the United States. Companies in the US can sponsor foreign nationals on an H-1B visa. The initial visa is good for three years, with an option to extend it for three more years. But what if you want to become a permanent resident in the US? There is a path from an H-1B visa to a green card. Read on to find out how it works and what to do if your PERM request is denied.

What is an H-1B Visa

For those who meet the requirements, the H-1B program is an incredible opportunity to live in the US on a work visa. The visa is available to individuals with a bachelor's degree or higher or equivalent in a specialty occupation. This includes fields like engineering, mathematics, science, medicine, architecture, and business, among others. 

With an H-1B visa, you can work in the United States for up to three years. After that, you may be able to renew your visa or apply for a green card.

A legislature act in 1990 put an annual cap on how many H-1B visas are granted. Out of thousands of applicants, only 65,000 visas are awarded each fiscal year. An additional 20,000 are approved for those with Master’s degrees or higher. 

Petitioners are chosen through a random lottery system. Applicants with a Master’s degree or higher have double the chance of getting selected through this system. The lotteries are split into two quotas: advanced degree holders and Bachelor’s degree holders.

If those with an advanced degree aren’t selected in their own lottery, they are placed in the regular lottery. There are multiple lottery rounds in some years if the quota isn't met in the first round. 

The H-1B visa application process can be lengthy and complex. 

H-1B Visa Application Process

To be eligible for an H-1B visa, foreign workers need a legitimate job offer from a company operating in the US. This company sponsors the prospective employer’s visa petition and pays many of the fees. 

The employer will need to prove that no American-born workers are qualified or available to hire for the position. 

The employer must also file a Labor Conditions Application with the Department of Labor, proving that they are offering the prospective employee a prevailing wage, meaning a wage equal to the wage an American-born worker would get. This guarantees that the foreign worker isn’t exploited with a low wage. 

Once you have a job offer in the US, H-1B visa hopefuls must register with the US Citizenship and Immigration (USCIS.) The registration used to include the entire application but recently changed to an online registration system with only basic information. 

The registrants are then entered into the lottery previously detailed. If selected, the final step is an interview with the US Embassy or Consulate.

How to Apply for Permanent Residence With an H-1B Visa

The H-1B visa is a temporary work visa but it can be a path to permanent residency and employment. There are three types of employment-based green cards:

E-B1 - professional priority workers such as executives and professors.

E-B2 - professionals with advanced degrees

E-B3 - professionals with a Bachelor’s degree or skilled workers

Your employer must apply for a PERM labor certification to initiate the green card application process. The form establishes a prevailing wage. This step also involves the employer actively recruiting for the position to show there are no qualified US candidates. 

What are the basic steps of applying for a green card? 

●     Apply for PERM Labor Certification (Form 9809)

●     Submit Immigration Petition for Alien Worker (Form I-140)

●     Submit For to Adjust Status (Form I-485)

If your PERM application is approved, your passport will get a stamp to show the change in status. 

What if your PERM Request is Denied?

Not all PERM applications are approved. Some of the reasons for a PERM denial include

●     Ineligible due to health, legal or security issues. 

●     Failure to meet documentation requirements.

●     Failure to attend required visa appointments.

If your H-1B visa application was denied, that is an automatic PERM denial. 

What do you do if your PERM request is denied? You can appeal the decision by filing form I-290B, a notice of appeal. In some cases, completing the missing documents can garner a reversal on appeal. 

However, if your appeal is denied, your only choice is to start the application process again. 

What Next? 

The H-1B visa process and PERM request are complex affairs. One missing or incorrect document can torpedo your entire application. But we can help! Our experts at Visa2US are trained in navigating complicated immigration laws.

We specialize in making the visa process as streamlined and easy as possible. Contact us today and take the first step toward obtaining your visa!

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H-1B Visa

H-1B Visa

H-1B visa is used by businesses and organizations in the United States to employ foreign nationals with the preferred qualifications, knowledge, and expertise in a role.

I-485 Adjustment of Status

I-485 Adjustment of Status

Submit a form I-485 application to apply for lawful permanent resident status.

National Interest Waiver (NIW)

National Interest Waiver (NIW)

An applicant must either hold an advanced degree or have an exceptional ability in their field that would substantially benefit the U.S. to be qualified.