This time of year, a common question arises from people who were lucky enough to be selected in the H-1B lottery last year, but unfortunately the final result was a denial. If you are planning to file again this year, how will the denial impact your case?
Because the previous petition was never approved, you are not considered to be “counted” in the H-1B cap and will need to file in the lottery again.
First, let me mention that the I-129 Form on Page 4 asks the following question:
8.b. Has any beneficiary in this petition ever been denied the classification you are now requesting within the last seven years?
In the event of a denial last year, the answer here should be yes. Understand that this does not mean that your new petition will be scrutinized more heavily. It is important that this question be answered truthfully and the previous receipt number provided, if you have it.
Scenario #1: Let’s say your H-1B was denied last year. The denial was never appealed, and you left the United States. Now a new company wants to file an H-1B petition for you to come back to the US to work. This petition will be a cap subject consular processing petition. Assuming the reason for the previous denial had nothing to do with you, there really should not be any impact on the new petition.
Scenario #2: What if you continued to maintain some other status, such as F-1 or L-1, or H-4, remained in the United States, and the employer filed an appeal of the denial? It is very possible that you will not get the result of your appeal before April 1st. If you wait and see what happens with the appeal and it is ultimately not successful, then you missed your chance to file this year. You do have the option of filing a new petition this year while the appeal from last year remains pending. If a new employer files the new petition, the pending appeal with the other employer should not have an impact.
Here’s where it can get tricky: If the same employer that filed the appeal also files a new petition that gets selected in the lottery, your employer may receive a request for evidence asking whether they want to continue with the appeal or continue with the new petition. The choice will depend on how strong the appeal is compared to how strong the new petition is. This should certainly be thoroughly analyzed before any action is taken to withdraw one or the other.
Any time there is a denial, a qualified immigration attorney should be consulted to help you understand your options and best strategies available. The information above is not meant as legal advice for your specific situation.