November 14, 2026
The State Department has historically been loath to permanently deny employment-based visas at the window, opting instead to return dubious petitions back to USCIS. This reticence makes sense when viewed from a purely separation of powers perspective: the State Department’s Consular Officer is there to look at the applicant, since USCIS does not have the ability to verify bona fides that originate from outside the United States. The practical upshot of this policy is that many Consular Officers do not have experience with applying the 214(b) refusal code to an H-1B visa applicant, since the vast majority of 214(b) refusals utilize its “intending immigrant” provision, and H-1Bs are exempt from that portion of the refusal code. But there is another side of 214(b) that can be used to refuse an H-1B applicant: the visa applicant must show they are eligible for the visa.
The Foreign Affairs Manual explains this in 9 FAM 302.1-2(B)(4). The relevant text appears in paragraph “a”, stating that “(t)he applicant's failure to convince you that they meet any one of the specific requirements of the applicable NIV category will result in an INA 214(b) denial”. The FAM then points the Consular Officer to INA 101(a)(15) to find the requirements for a particular visa class. A particularly keen Consular Officer would eventually be able to track down that the INA is codified in 8 U.S.C. § 1101(a)(15) and find the link to the Code of Federal Regulations that contains the correct regulatory language.
Perhaps this is why most Consular Officers do not know how to apply the ineligibility correctly to H-1B applicants. However, once the intrepid Consular Officer has located the correct provision of the INA, he or she will find the requirements to obtain an H-1B for a specialty occupation worker, reproduced below.
(C) Beneficiary qualifications. To qualify to perform services in a specialty occupation, the alien must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
(3) Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
(4) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
Given the requirement in the FAM that an applicant must satisfy the Consular Officer that they qualify for the visa class, an applicant for an H-1B specialty worker visa should be refused if the Officer is not satisfied that the applicant meets the beneficiary qualification requirements. For example, the Officer might determine that the applicant’s foreign degree is not actually equivalent to a U.S. bachelor’s degree in the required specialty based on the quality of the school attended, grades, or ability to explain their chosen field of study. The Officer might also determine that the applicant’s field of study is unrelated to the offered position. Another reason to apply 214(b) is if the applicant’s claimed work experience is insufficient or not progressively responsible (in the case where the applicant does not possess a degree). The Officer is also not required to take diplomas, evaluations, training records, or experience letters at face value and may require the applicant to provide additional evidence before issuing a visa.
The State Department’s Consular Officer is the first person in the H-1B process with an opportunity to interview the applicant in person. As such, it falls to the Officer to refuse unqualified applicants at the visa window. With the proper training, the State Department can fully embrace its critical role in protecting the American homeland.
