H1B And H-4 Visa Applications In India Plagued By 221(g) Refusals: Part 2
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.
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
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
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
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
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
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.
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.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
Share this page
Bookmark this page
The leading immigration law publisher - over 50000 pages of free information!
© Copyright 1995- American Immigration LLC, ILW.COM