A software engineer who had earlier worked on a U.S. defense project recently suffered a double whammy—visa expiry and a denied green card petition. With the H-1B having been capped and the NIW petition surprisingly rejected, the trip back to India was earlier than expected.
The story is not out of the ordinary—but the timing is the kicker. The six-year H-1B period expired in April 2025, just when the NIW petition was pending and the PERM process with a new employer was ongoing.
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This engineer had already survived a 2023 layoff, which required a restarting of the green card process. While the previous employer was slow on the PERM, the new employer was not only quicker but also cooperative—even offering relocation to another country.
The NIW petition was filed as a backup—a prudent one, since the national interest waiver bypasses the PERM stage. The attorneys were hopeful, but the denial came without explanation. A reason is still awaited from USCIS.
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Now, the options are up in the air. The lawyers are considering whether the rejection can be appealed—or if a more powerful, revamped petition must be submitted from scratch. But either path will require time, and in the meantime, the candidate is still outside the U.S.
In cases like this, the most practical option is often determined by the stage of the PERM process. If PERM is approved and the I-140 is filed (and approved), an H-1B extension beyond six years may still be possible—under AC21 provisions.
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Reapplication for NIW is possible—but it would need to specifically cure the problems in the denial. Some applicants look at O-1 or L-1 if their work or profiles meet the criteria, but each has strict requirements and landmines.
It is more than paperwork. It is a question of long-term planning—navigating a system that requires flawless timing in an imperfect world. And sometimes, even a good profile and employer sponsorship are not enough when time runs out.
