H1B And H-4 Visa Applications In India Plagued By 221(g) Refusals: Part 2

by Sheela Murthy, et al.

In Part 1 (14.Jan.2011) of this article, MurthyDotCom and MurthyBulletin readers were informed of problems with visa applications and an increase in denials at the U.S. consulates in India. Part 2 discusses some of the legal issues presented by the current wave of 221(g) refusals, that primarily focuses on H1B visa applications for IT consultants.

Consular Officers' Authority for Visa Issuance

A consulate has the authority to assess whether an individual qualifies for the requested visa. The fact that an individual has an H1B petition approved by the U.S. Citizenship and Immigration Services (USCIS) does not mean that the consulate will automatically issue the H1B visa. The same is true for all visa applications. However, there are standards that apply to this process. The consular officers are not supposed to re-adjudicate an approved petition. Their role is not to use personal opinion to completely review and rethink whether each case should have been approved. They are supposed to give deference to the USCIS approval.

Consulates Expected to Rely on the FAM and USCIS Decision

The Foreign Affairs Manual (FAM) is the authority governing U.S. consular officers around the world. It contains U.S. Department of State (DOS) policy and procedures on visa adjudications, in compliance with immigration laws and regulations. The FAM reminds consular officers that, "Congress placed the responsibility and authority with DHS [U.S. Department of Homeland Security] to determine whether an alien meets the required qualifications for H status. …DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area." Essentially, this means that the consulates are not to second-guess the USCIS (which is part of the DHS) decision approving an H1B petition.  

H1B Approval by USCIS Deemed Evidence of H1B Eligibility

The FAM further establishes that the approved H petition is considered as valid evidence that the individual is entitled to H classification. Officers are instructed that they "do not have the authority to question the approval of H petitions without specific evidence, unavailable to the DHS at the time of petition approval, that the beneficiary may not be entitled to status." Consular officers are reminded that, "The large majority of H petitions are valid, and involve bona fide establishments, relationships and individual qualifications that conform to the DHS regulations." Again, this confirms that most H1B (and, by extension, H-4) visa applications should be regarded as being based upon properly-approved H1B petitions. If that deference and limitation on authority was being respected, laundry list 221(g) refusals would not be typical.  

Authority of CO to Issue 221(g) Visa Refusals

The FAM advises that consular officers' (COs') requests for documents in the 221(g) notices should be limited to those documents that were unavailable to the USCIS when the H1B petition was approved. This neither means documents that the USCIS did not choose to review when they decided to approve the case, nor does it mean documents that the USCIS may have requested, but did not require in order to approve the case. The FAM sections discussed above regarding deference and presumptions of validity that apply to H1B visa applications are followed by FAM instructions as to when the consular officer is permitted to question the validity of an H1B petition.

H1B/H-4 Visa Applicant Must Establish Eligibility

The FAM also states, "... the approval of a petition by the DHS does not relieve the alien of the burden of establishing visa eligibility." The FAM explains that, in the course of the visa interview, questions may arise as to an applicant's eligibility. "If information develops during the visa interview (e.g. evidence which was not available to DHS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue. Disagreement with DHS interpretation of the law or facts, however, is not a reason to ask DHS to reconsider its approval of the petition." Thus, if the CO uncovers some negative or questionable information during the visa interview, s/he can request documentation on the issue in question. In the past, this typically could include proof of experience or education. If a CO were to ask a visa applicant basic questions within the applicant's claimed field of expertise, and the applicant did not appear to have the level of expected knowledge, it may be appropriate to verify the claimed experience and/or education.  

Frequent Apparent Misuse of 221(g) Visa Refusals

As stated, COs routinely issuing 221(g) notices are not limited to a narrow, pinpointed issue, resulting from information acquired at the visa interview. They often are blanket 221(g) visa refusals with an exhaustive list of required documents. In other cases, no documents requested whatsoever and the case awaits administrative processing. When documents are requested, these frequently have no specific tie to the documents supporting the H1B petition approval submitted or offered at the interview.

Improper to Deny Visa Applications in Recently-Approved H1B Cases

A review of the FAM notes would lead one to assume that a foreign national with a recently-approved H1B petition would have a better chance of visa approval. Previously, if the USCIS had recently approved an H1B petition and, a month or two later, the visa applicant applied for a visa with proof that the job remained as stated in the petition, the visa would likely have been routinely approved. Currently, even in cases that the USCIS has reviewed in detail and approved just a month or two earlier, it is not safe to assume that the CO will defer to the recent favorable decision of the USCIS.

Many of these recent USCIS-approved H1B cases are also being denied the visa stamp and returned for review, even though nothing has changed between the time of USCIS approval and the time of the visa application at the consulate. This, in many of the cases brought to the attention of the Murthy Law Firm, appears to be in contradiction with the FAM directive against for USCIS reconsideration of an approval, solely based upon disagreement with the USCIS approval decision.   

Return of H1B Petition to USCIS for Possible Revocation

If an H1B visa is denied, the consulate generally returns the H1B petition to the USCIS to review for potential revocation. The FAM provides instructions regarding this process. The FAM directs the consulate to use this procedure "sparingly" in order to avoid inconveniencing bona fide visa applicants and their employers, and to avoid duplication of efforts by the USCIS. (In having to again review a petition they have already reviewed and approved.)

This procedure of requesting that the USCIS revoke a previously-approved H1B petition is only appropriate, under the FAM, for cases with specific evidence of requirements for automatic revocation (such as petitioners that have gone out of business), misrepresentation in the petition, lack of qualifications by the beneficiary, or other previously-unknown facts that might change the USCIS's previous decision to approve the case.

The H1B petitions are returned to the Kentucky Consular Center (KCC) with an explanation and any documentation of the reason for the request. The petition and the review request are then supposed to be forwarded to the USCIS office that approved the case initially. The USCIS is then supposed to review the case, and either reaffirm the prior decision to approve, or send a notice of intent to deny (NOID) to the petitioner.

Historically, this movement and review of the H1B petition could take several months to a year or two. In most of these cases, by the time the USCIS reaffirms the earlier H1B petition approval, the time on the H1B petition has expired or nearly expired. Most employers and employees have long-since sought other options, rather than wait for USCIS action on petition review requests.

Possible Options for H1B/H-4 Visa Applicants

As suggested in part one of this article, the most practical option at this time is to limit travel abroad. However, if travel is a must, then it is important to be prepared. Applicants must be able to document their eligibility and, if needed, to dispute the requests for evidence in 221(g) notices, and to challenge any visa denial decision. H1B and H-4 visa applicants need to make sure that the employers in their cases will back them up, by providing documentation and not terminating employment due to consular delay or H1B visa denial. There are sometimes options involving renewed H1B filings and renewed visa applications. Individuals who are contemplating visa applications, or who are experiencing problems with issues discussed in this article, should obtain legal representation through an experienced attorney, knowledgeable in U.S. immigration law. We at the Murthy Law Firm represent H1B employers across the United States, including addressing visa denial cases that are in violation of the law and the FAM.

Conclusion

The Murthy Law Firm is working to address the concerns of many foreign nationals who have been placed in difficult predicaments. This is a widespread and entrenched policy and procedural issue, however, particularly at the consulates in India. It is unlikely, therefore, to improve overnight. MurthyDotCom and MurthyBulletin readers will be alerted to developments in this area. Our firm will continue to work with the DOS, the USCIS, and H1B employers with the goal of remedying these problems.

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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