H1B NOIR

[whiskeyjack]

Hi folks,

I recently did quite some research on H1B NOIR due to anxiety, and wish to share some of my findings in case someone is in the same boat. There are quite a few scary articles on H1B NOIR and revocation online, and I hope my post can provide some ease if you are scared like I was a couple of weeks ago. 

To begin with, I must warn you that I'm not a lawyer, and this post is not legal advice. If your H1B, especially the initial cap H1B, has a NOIR coming, talk to an immigration lawyer ASAP!

1. Revocation vs Denial

Some articles and posts claim that a revocation, especially after a NOIR, is a Denial of your petition. This is NOT TRUE. A revocation is a revocation, and a denial is a denial. Once your petition is approved, it, at least technically, cannot be denied anymore. It is common for employers to withdrawal a petition after you leave, and USCIS would automatically revoke the petition. Even in the case of USCIS initiated revocation after NOIR, there are still some differences. Here is a report by AAO, where an USCIS director issued a NOID to an approved petition, and the AAO agreed that denial after approval is ineffective and a NOIR should be sent instead. So, if your H1B, especially your first H1B got revoked, here is a good news, it would not be as if the petition was denied on spot after delivering to the USCIS for the first time.

2. So, I'm good?

No, unfortunately, not until you know the cause of the revocation. I think this is where the "revocation equals denial" idea comes from. If a petition was revoked due to "fraud or willful misrepresentation", the result could be worse than denial. Fraud would not be taken lightly by USCIS, CBP, and Consulates. If you are proven to be a willful participator, you could be barred from entering the United States. Even if you are merely a victim of a fraudulent employer, you will be out of status immediately, likely start to accrue unlawful presence on the day of notice, and if this is your first H1B, INA 214(g)(3)  would make you subject to the cap again. After such a revocation happen, your petition is as good as being denied in the first place.

3. Then what's the difference?!

There are five grounds of revocation at 8 C.F.R. ~ 214.2(h)(11)(iii), and "fraud and willful misrepresentation" is only a subpart in one of them. If you can prove that there are no "fraud and willful misrepresentation", the NOIR would not be so devastating. This is especially true if your initial cap H1B got a NOIR. If you have worked for sometime into the following fiscal year after your petition, even if you get a NOIR and the petition is ultimately revoked by USCIS, you can keep your cap. If you find another employer willing to file a cap-exempt H1B for you, you can ask them to file it as Consular Processing, go to your home country for a visa stamp, and come back to work. INA 214(g)(3) may not be on your side, but it is not against you either. There are also Federal Register publications supporting you.

4. An edge case

USCIS can revoke a petition retroactively, and can find a petition on approvable not for "fraud and willful misrepresentation". So technically, if an officer deems that your petition was unapprovable in the first place yet cannot find you committing fraud, he/she may still get your cap revoked by retroactively revoking your initial petition prior to the time you change your status to H1B or getting an H1B visa stamp. However, I'm skeptical if an officer would have such a strong desire to screw an H1B beneficiary, willing to go through appeals even immigration courts, which would almost certainly happen, to void someone's cap. 

5. Some final thoughts

NOIR is a powerful tool of USCIS, but as long as you are not doing something seriously wrong, you can fend it off when it comes at you. Actually, I can straightly find multiple severe fraud indicators in every single case I read on AAO that involves a NOIR. My guess is, if USCIS does not have some solid evidences, and there are no political factors involved, USCIS would not waste its limited resources issuing a NOIR against you. Hence, if you ask an immigration lawyer about NOIR without paying for a 30 minute lecture on immigration law, they would likely just tell you "NOIR is meant for denial; if your initial cap H1B is revoked after NOIR, you lost your cap; no fraud, then don't worry about it".

 

[vikramkumarg]

Thats a good analysis. I understand this is not a legal advice, but just to make it short, if the NOIR is issued and USCIS intends to revoke the approval of the petition in accordance with 8 CFR § 214.2(h)(11)(iii)(A)(2), CAP number will be void and beneficiary won't be able to do any transfer/amendment petitions.

8 CFR § 214.2(h)(11)(iii)(A):

(2) The statement of facts contained in the petition or on the application for a
temporary labor certification was not true and correct, inaccurate, fraudulent, or misrepresented a material fact.

If NOIR is for any other reasons of 8 CFR § 214.2(h)(11)(iii)(A), even after the revocation of petition the beneficiary will be able to do transfer/amend petitions as the CAP Number won't be revoked.

please correct me if I am wrong.

[Craze]

Hi I am in the same boat . I got NOIR on Approved H1B. Please let me  Will i get my H1 B back aif we fight the case?

reasons for revocation are 

214.2(h)(11)(iii)(A)

8CFR 214 .2(h)(11)(iii)(A)