H1B and H-4 Visa Applications in India Plagued by 221(g) Refusals: Part 1

by Sheela Murthy et al.

Historically, the U.S. consulates in India have had a reputation for closely scrutinizing visa applications. The standards at the consulates for H1B visas were quite strict, even prior to the U.S. Citizenship and Immigration Services' (USCIS's) implementation of stricter adjudications policies. Recently, however, the consular rates of reported issuance of 221(g) visa refusals and denials have reached a critical level. At the present time, it would be wise for H1B workers employed by IT consulting companies, as well as their H-4 spouses, that they limit international travel unless it is absolutely necessary. Those working for employers in other sectors also face risks that should be carefully considered before traveling internationally and applying for visa stamps abroad.

221(g) Ineligibility

The Immigration and Nationality Act (INA) Section 221(g) is a fairly generic provision, which states that consular officers cannot issue visas to applicants who are ineligible to receive the visas under any section of law, or if the visa applications do not comply with immigration laws and regulations. Put simply, 221(g) is a catchall provision for refusing a visa if, in the opinion of the consular officer, the applicant has not proven eligibility for visa issuance. The 221(g) is classified as a visa "refusal" and must be revealed as such in any later visa applications. This was addressed in our news article, 221(g) Visa Stamp is Considered a Visa Refusal (18.Dec.2009), available on MurthyDotCom.

For many applicants, the 221(g) notification (issued on various colors of paper) is not the end of the road. It is not uncommon for 221(g) visa refusals to be used by the consulates as a way of issuing requests for evidence (RFEs). They contain preprinted lists of documents, and consular officers check off the boxes corresponding to the additional documents needed to make their final decisions.

Some 221(g) notices are for administrative processing. These do not require additional documents from the applicant. They involve internal background checks on the applicant and/or the petitioning employer, if applicable.

Cases Receiving 221(g)s

The 221(g) can be issued in any type of visa application. We are receiving daily inquiries and requests for assistance from individuals and their employers after problems arise in their visa applications. The cases coming into the Murthy Law Firm and Murthy Immigration Services, Pvt. Ltd. (MISPL) in Chennai, India, most commonly involve IT consulting company employees applying for H1B visas. However, we are also receiving inquiries from individuals in other lines of work who have received the same treatment. While these types of cases represent a smaller proportion of those experiencing problems, it has become a common occurrence.

Why Visa Applicants Receive 221(g) Refusals

The 221(g) provisions have been used for many years to request additional documentation, or to put the application on "hold," pending additional background and security checks. What is occurring at the present time, however, is the seemingly universal use of a laundry list 221(g) in many H1B cases, without regard to the content of the H1B petition itself or documents and information offered at the interview.

In many situations, documents are offered, but apparently not reviewed at the interview. Rather, a 221(g) is handed over routinely, without consideration for the substance of the submitted visa application. This is largely connected to the January 8, 2010 USCIS memorandum on employer-employee relationships, covered in our news article, Analysis: H1B Memo on Employer-Employee Relationships and 3rd-Party Placements (05.Feb.2010).

Many H1B visa denials are issued based on a finding that there is no bona fide employer-employee relationship. This is also connected to the overall focus on fraud in the immigration process. There may be warnings or flags in the system, alerting the consulate to fraud or suspected fraud by the H1B-petitioning employer.

H-4 Spouses - Disconcerting Development & Prior Trends

Cause for some concern, is that H-4 spouses are receiving 221(g) refusals and requests for elaborate H1B employer documents. This is a fairly recent development, as H-4 visa applications were fairly routine until lately.

Until very recently, an H-4 spouse applying for a visa was expected to demonstrate a few basic points of eligibility. S/he had to prove marriage to the individual with the associated H1B petition approval. This was done by showing the marriage certificate and related documents, and the H1B petition and status approval notice of the spouse. The H-4 visa applicant had to demonstrate that his/her H1B spouse was maintaining H1B status. This was done by providing a current letter from the H1B employer, verifying employment, and the spouse's current paystubs. In some instances, the consulates wanted verification that the H1B spouse had a good history of maintaining valid status, an indication that the H-4 spouse would also be likely to maintain status if permitted entry to United States. This typically involved review of the H1B beneficiary's prior immigration approvals and pay history. The pay history was also relevant to establishing that the H1B principal could financially support the H-4 derivative spouse.

Current H-4 Spouse Visa Applications at Consulates in India

At this time, we at the Murthy Law Firm and MISPL are seeing instances of H-4 spouses in India being required to provide detailed documents regarding the H1B position, as well as the H1B employer's operations. We are receiving calls from distraught H1B workers, separated from their spouses, as well as calls from employers asking why they must provide tax documentation and employee records to the spouses of their workers. The source of this problem for H-4s is that consulates are issuing 221(g) notices requesting the list of documents that would be called for if the H1B spouse was applying for a visa.

Types of Documents Typically Requested in a 221(g)

There are standardized lists utilized by the U.S. consulates in India for H1B and, lately, H-4 applicants. In addition to requesting a copy of the complete H1B petition, including all supporting documentation filed with the USCIS in support of the petition, the 221(g) typically requests the following documents from the employer:

• the employment contract / letter of agreement between the H1B employee and the H1B employer

• the petitioning employer's last two income tax returns and financial statements

• a notarized list of all the petitioning employer's employees (This list must include names, job titles, start and end dates of employment, salaries and immigration statuses. This request is sometimes limited to employees at the particular jobsite, but is often more expansive.)

• the employer's state unemployment wage reports, for the past three quarters

• a letter from the end client, verifying the position and vacancy

• a letter from the end client and a copy of the contract between the petitioning employer and the end client, setting forth the timing and terms for the project

If the position is for work on an internal development project, the 221(g) requires a detailed and specific description of the internal development project. This must include a complete technical description and timeline, the individual's current status, the number of employees assigned, the worksite location, and a marketing analysis for the final product.

After 221(g) Administrative Processing Issuance

If the 221(g) does not request documents, the case is under administrative processing. These cases can take many months, with very little information forthcoming regarding timeframes.

In cases for individuals who have documents requested, these documents typically are gathered and submitted according to the instructions. The waiting time can vary, from a few weeks to a few months. In some instances, the visas are approved following document submission. In many others, however, the visas are denied. If one's visa is denied, the consulate sends the H1B petition back to the USCIS for reconsideration and possible revocation. The USCIS is supposed to review these cases and either reaffirm the approval or issue a notice of intent to deny (NOID). This is a separate issue, beyond the scope of this article, which has been discussed in past news articles available on MurthyDotCom.

H-4 Gets a 221(g) for H1B Documents

As stated, H-4 spouses are not immune to the list of documents the 221(g) requests. We at the Murthy Law Firm are aware of instances in which H-4s have received 221(g) requests for the same types of documents requested for H1B visa applications. This includes employer documents, such as tax returns, state unemployment filings, information about the employer's other workers, and end-client letters. We have seen H-4 221(g) requests pre-printed with requests for an end-client letter, verifying the H1B spouse's position. End-client letters are not always possible to obtain, due to the internal policies of many large U.S. companies that use the services of IT consultants. Absent a complete response to the 221(g), the visa is likely to be denied.

Conclusion

The frequent issuance of a 221(g) refusal of the visa without a substantive review of the application is obviously problematic. Part two of this news article will address the legal issues involved, and efforts to address problems. For now, however, it is important for MurthyDotCom and MurthyBulletin readers to be aware of this growing problem and alarming trend. Accordingly, any H1B or H-4 visa applicant must consider the risks before making travel plans. If international travel is imperative, it is necessary to ensure that one's employer will supply the requested documents and keep the position open, if there are delays and denials. There are avenues to address abuses of authority within the system, but it is necessary for employers and individual applicants to be willing to pursue these methods when problems arise. The Murthy Law Firm is available guide and assist those who are facing denial or potential denial of visas at U.S. consulates due to these matters.

Editor's Note: H1B And H-4 Visa Applications In India Plagued By 221(g) Refusals: Part 2 was published on the January 31 issue of Immigration Daily.

This article originally appeared in Murthy Bulletin on www.murthy.com. Reprinted with permission.

About The Author

Attorneys from the Murthy Law Firm. Sheela Murthy is the founder of the Law Office of Sheela Murthy, P.C. which consists of over 45 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Office of Sheela Murthy, P.C. handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.

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