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Can USCIS revoke an H1B petition that is already approved?

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Yes, an H1B petition is automatically revoked in certain situations, and in other cases, USCIS may issue a notice of intent to revoke (USCIS) for grounds including a petitioner’s noncompliance with H visa requirements.

H1B is a versatile visa option that can work for many skilled professions and provides many advantages, including being dual-intent and facilitating future green card applications. At the same time, H1B is a heavily regulated and scrutinized category for employer compliance.

For example, H1B petitioners need to obtain a certified Labor Condition Application (LCA) confirming the terms and conditions of employment permitted for the H1B worker, and must update USCIS, in some cases with a new LCA, whenever there are any material changes to these arrangements, such as a change in the employee’s worksite. There are also recordkeeping and reporting obligations to take note of. These duties continue even after a H1B petition has been approved and the employee has started working for the employer.

Some may ask, what is the reason to continue to comply with all these complicated requirements when the employee already has an approved visa status? A significant risk and benefit to compliance stems from the fact that USCIS may actually revoke an approved H1B petition at any time, even after expiration of the petition.

An approved H1B petition is automatically revoked if the petitioner goes out of business, withdraws a petition, or if the LCA is revoked by the Department of Labor.

In other cases, USCIS may issue a notice of intent to revoke for the following grounds:

  • The beneficiary is no longer employed in the same capacity specified in the petition.
  • Any statement of facts contained in the petition or LCA was inaccurate, fraudulent, or misrepresented a material fact.
  • The petitioner violated the terms of the approved petition.
  • The petitioner violated any of the requirements of the H visa.
  • The approval of the petition was in violation of the H visa requirements or involved gross error.

Once the petitioner receives notice of USCIS’s intent to revoke, the petitioner is given an opportunity to respond to USCIS’s concerns within 30 days.

In sum, USCIS’s ability to revoke an approved H1B petition for a number of reasons, including for noncompliance with H visa requirements, is a compelling reason why careful consideration is needed when considering changing the terms and conditions of a beneficiary’s work in H status. It is highly recommended to consult with an experienced immigration attorney in advance of instituting such changes to minimize risks.

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