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221(g) and Visa Denials

221(g) and Visa Denials

VISA DENIALS: Now What!  

With few exceptions, every visa applicant is interviewed by a consular officer at a U.S. Embassy or Consulate. After all available information is reviewed, the application is approved or denied based on U.S. immigration law.

If your non-immigrant visa such as H-1B, L-1B, L-1A, B-2 (visitor visa), B-1 (Business Visa) have been denied by the U.S. Consulate or Embassy, you may need to retain the services of highly qualified and experienced immigration law firm like Law Offices of Keshab Raj Seadie, P.C. which has  successfully processed tens of thousands of both immigrant and nonimmigrant visas.

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There are many reasons why a visa application may be denied. In some instances, the application is denied because necessary information or supporting documents were not submitted by the applicant. In other instances, the application is denied for more serious reasons. An applicant's current and/or past actions, such as drug or criminal activities, as examples, may make the applicant ineligible for a visa.

If denied a visa, the applicant is given a reason based on the section of law which applies. Visa applicants are also advised by the consular officer if they may apply for a waiver of their ineligibility.

What is section 221(g)?

Section 221(g), of the Immigration and Nationality Act (INA), is a temporary hold or refusal on a visa application. In order to receive a visa and enter the United States, an immigrant must attend a visa interview. If a visa application needs further work or review, the application will be suspended under section 221(g). When this happens, the visa petition has been approved by the US Citizenship and Immigration Services (USCIS), but the consulate is not convinced that the immigrant is qualified to receive a visa on the day of the interview.

Is my visa petition rejected?

No. By placing a visa application on hold through section 221(g) the consulate takes the time to obtain and review additional documents and information to make sure that everything is valid before a visa is issued to the immigrant. Section 221(g) enables the consulate to suspend the petition instead of rejecting it.

How do I know that my petition is suspended?

When an immigrant's visa petition is suspended, they will be handed a colored slip at the end of the interview process. The paper explains that the application is on hold under section 221(g). There is no set timeline for how long it will take for the consulate to reach a decision. It can take weeks, months, or more than a year.

The standard message on a suspension slip is:

Your application for a nonimmigrant visa has not been refused. At present, your application must be suspended under section 221g of the immigration and nationality Act, as amended (INA), for further review at the Department of State or by another agency. Embassy xxxxxx will resume action on your application after we are informed that this review is completed. Please be advised, however, we do not control the pace or scope of this review. When the process is complete, we will contact you with further instructions or to advise you that your visa is ready for pick-up.”

Why does the consulate question my visa petition?

The number of visa petitions placed under section 221(g) increases every year. The main reason is a sense of national distrust towards immigrants. The idea that immigrants are “taking all of our jobs” has tightened the immigration process. Although there is no specific policy against immigrant employment, the Department of Security has made the process of employing immigrants harder. The establishment of the Department of Homeland Security also increased the caution exercised by the government when granting visa petitions. Section 221(g) is seen and used as an additional security procedure.

What does section 221(g) say?

Section 221(g) of the INA can be found on the U.S. Department of State website. The exact wording of section 221(g) is as follows:

(g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law: Provided, That a visa or other documentation may be issued to an alien who is within the purview of section 212(a)(4), if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213: Provided further, That a visa may be issued to an alien defined in section 101(a)(15)(B) or (F), if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 214(a), or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 248 of the Act, such alien will depart from the United States (http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html).

Does this impact my plans to relocate?

Yes. Under section 221(g), an immigrant with a suspended petition is not allowed to enter the United States. All plans such as starting employment, purchasing a house, and moving to the United States, must be put on hold until a decision is reached about the visa petition.

Are petitions placed under section 221(g) usually rejected?

No. From 2008 to 2012, on average 9 out of 10 visa petitions placed under section 221(g) ended up receiving approval. Anymore, it is fairly common for immigrant petitions to be suspended. The number of suspended petitions increases every year.

Preparing for the Visa Application Interview

The main reasons that a visa application is placed on suspension under section 221(g) of the Immigration and Nationality Act (INA) is mismatched information and a lack of documentation supporting the application. In order to avoid the application being suspended, it is important that all documentation is presented accurately at the visa application interview.

Below is a list of the documents that are required during the visa application interview. Following the list of required documents, there will be an overview of questions commonly asked during the visa application interview.

Generic Requirements

These basic documents are required at all visa application interviews:

  1. DS 160 barcode print out – on this form is will ask if you have been denied a visa before. If you have had a visa suspended previously under section 221(g), you must check “yes” that you have had a visa denied (a suspension is considered a denial).
  2. Appointment confirmation email print out
  3. I-797 – Notice of Action
  4. LCA – Labor Condition Application and Letter
  5. I-129 – Petition for Nonimmigrant Worker
  6. Passport– your passport validity must be more than one year. It is not recommended to appear at a visa application interview with only a few months left on your passport. If an individual is seeking temporary employment and the passport expires before the end of the employment period, the visa will only be good until the date that the passport expires.
  7. EVC/EV Model employee documents specifically Client Letter

Additional Required Documents

There are a series of other documents that must also be presented at the visa application interview:

  1. Supporting documents filed with USCIS at the time of the application.
  2. Resume
  3. Employer documents (employee lists, tax filings, company listings, etc.)
  4. Employer Annual Report
  5. Pay stubs
  6. Offer letter
  7. Job description (nature of work, technical details)
  8. Manager details
  9. Department and site information
  10. Information on projects
  11. Previous employment letters to verify prior work
  12. Timesheets
  13. W2s
  14. Tax Returns
  15. I-20s
  16. Educational documents

Documents Required for Contractors

Additional supporting documentation is required for immigrants who will be performing contract work. Contractors work for a different company than there employer. The required documents include:

  1. Client letter
  2. Vendor letter
  3. Employer offer letter
  4. Contract information between client and vendor
  5. Employment contract
  6. Letter to USCIS at the time of initial submission
  7. LCA filing documentation

Common Interview Questions

The consulate asks the immigrant a series of questions in order to guage the validity and genuinous of the visa application. The questions are usually divided into the following categories:

  1. Company – current company, length of employment, location, details about the company, and whether it is first employment.
  2. Job – job title, responsibilites, nature of job, location, relation with the work of the company, how your background relates to the job.
  3. Experience – previous work, experience in the field, previous employment.
  4. Finances – salary, pay stubs, tax returns.
  5. Education – university attended, degree, specialization.
  6. Personal background – passports, citizenship, family, countries traveled to, current residence.
  7. EVC/EC Model – job location, supervisor information, employer location, nature of work, steps between employer and employee, communication between employer and employee, nature of payment/salary, who is resposible for bonuses (the consulate wants to make sure that the employer, not the client or vendor, is responsible for employment review, salary increase, project assignment, and termination).

Preparing for the Interview

Applying for a visa is not a simple or quick process and neither is preparing for the application interview. It is important that all of the required documentation is complete accurately and brought to the interview.

The visa application interview allows the consulate to verify the validity of the visa application by reviewing the documents and speaking with the applicant. The visa application can be accepted, suspended, or denied based on the results of the interview.

If the consulate is unsure about the documentation that is presented, the visa application will be suspended under section 221(g) of the INA for further review. There is no set time for a decision to be made. It can take weeks, months, or even more than a year for the suspended application to be moved to acceptance or refusal.

Section 221(g) Suspension Protocol

When an immigrant's visa petition is suspended under section 221(g) of the Immigration and Nationality Act, the U.S. Embassy or Consulate needs more time to review the validity of the petition and documents. There is no timeline for exactly how long it will take for a decision to be made, but general information is available about what processes are likely taking place.

What happens when section 221(g) is issued?

The consulate will issue a slip with a case number to the immigrant. If more documents are required, the consulate will request the paperwork that is needed. Once all of the documents are submitted, the immigrant must wait for the final decision. It is a good sign if the consulate requests the individual's passport. Once a visa is approved, the consulate must stamp it into the passport.

Can the suspension process be expedited?

No. It is not possible to expedite a 221(g). The consulate works on cases based on criticality. If it takes a while for a decision to be made it could mean that the case required extra investigation or that it was not high on the list to be reviewed.

Is there anything I can do to speed up the process?

It is possible for an individual to try to apply for a visa in another category. An individual can also apply for the same visa again, but with a different employer. Applying for a different visa might allow an individual to receive earlier approval, but it is not guaranteed.

What happens if my visa petition is rejected?

The consulate officer will give you a form that must be filled out. The form will determine what information is missing from your petition and how to proceed. You will need to gather all of the required information in order to continue the application process.

Do I have any other options after the petition is rejected?

Once you provide the missing information, the consulate will send your petition back to the USCIS for reconsideration. The consulate will also include their comments about your case. The USCIS will review the case within 30 to 60 days. If the USCIS decides to reinstate the application, they will send all of your documentation back to the consulate to continue to process of the case. If your case is reinstated, you will be notified by the consulate.

Is there a waiting period to reapply for a visa?

No. There is not a waiting period for reapplying for a visa. However, if your circumstances have not changed or you have not acquired the necessary documentation, you would likely be denied again.

Why did I get denied after I supplied all of the documents?

Although submitting all of the documentation is required to apply for a visa, it does not qualify you for the visa. In addition to the documents, the visa application interview is also very important. The consulate officer determines whether you qualify for the visa based on the information provided during the interview.

What does it mean when my petition is under “administrative processing”?

When a visa petition requires additional investigation, the consulate officer can place the case under “administrative processing.” This means that the case is under further review. Administrative processing usually takes about 60 days. The consulate will contact you when the processing is complete.

Can I appeal the denial of my visa?

No. All visa decisions are final. You cannot appeal the decision, but you can reapply for the visa.

Why can I not get a refund after my petition was denied?

Applying for a visa requires you to pay the application fee, which is not refundable. If you reapply for the visa you will have to pay the application fee again.

What document do I have to show to leave the U.S. once my visa expires?

When your visa expires, there are not any specific documents that have to be supplied to your home country. You can show documentation of your financial ties to your country such as proof of investments or property. If you have a letter from an employer in your home country that guarantees employment once you return from abroad you can present it as well.

Is it possible to come to the U.S. without a visa?

Some countries are eligible for a visa waiver program. If you are a citizen of an eligible country, you must also have a passport and be travelling for less than 90 days. You have to apply for ESTA (Electronic System for Travel Authorization). There is a $14(US) registration fee for ESTA that must be paid by credit card. If your ESTA is denied, you will be refunded $10.

How do I renew my visa if it is going to expire?

You will have to go back to your country to get your visa stamped.

What do I do if my passport expires?

You will need to apply for a new passport. However, you will need to keep your old passport that has the visa stamp in it. From that point forward you will travel with two passports.

Can I extend my visa while I am still in the U.S.?

No. You will have to go back to your country and apply for another visa.

Can I stay in the U.S. after my visa expires?

After your visa expires you will be allowed to stay in the U.S. for a certain period of time. The time period authorized by the Department of Homeland Security is noted on your I-94 admissions card. Once the time has expired, you will need to leave the U.S. and return to your country.

221(g) FAQs

  1. What is a 221(g) visa denial/refusal and finding of ineligibility?

A 221(g) visa notification often occurs when a visa applicant is informed that a final decision cannot be made on his/her visa application immediately. It is a temporary refusal or hold on the issuance of visa. In such cases, the consular officer invokes Section 221(g) of the Immigration and Nationality Act (INA) and informs the applicant that the case will be placed on hold until the applicant's eligibility for the visa can be determined

Section 221(g) of the Immigration and Nationality Act (INA) is a generic, catch-all provision for refusing a visa, which essentially states that consular officers (COs) cannot issue visas under any section of the law if a visa application does not comply with current immigration laws and regulations. Through this section of the law, a consular officer is given the authority to refuse a visa if s/he believes that the applicant has not proven his/her eligibility for the requested visa.

The 221(g) is classified as a visa “refusal” and should be disclosed as one in subsequent visa applications. Generally speaking, there are two (2) types of 221(g) cases:

  1. Washington-related “administrative processing, wherebya clearance or approval is required from an interested agency or agencies in Washington, D.C.
  2. Post-related processing, whereby the consular officer requires additional time, information, or documentation before making a final visa decision.

Both types are discussed in further details below.

  • Clearances from Washington are required when a visa applicant presents legal questions, security and criminality issues, raises concerns regarding technology exports from the US, other admissibility issues, or is from a country of concern.

A security “hit” can arise with respect to a visa applicant for a number of reasons – there may be potential terrorists concerns with the applicant; the individual may have previously worked as military or other attaché in the US for an unfriendly country; the applicant may have spent time in certain counties (Iran, Syria, etc.); or the applicant may be suspected of criminal activity or ties. Such situations can result in prolonged visa processing due to the need for further investigation.  A Security Advisory Opinion is required for the above-mentioned issues. Likewise, if a visa applicant is a citizen or national of a specific country (Iran, Syria, Sudan, etc.), s/he must first be cleared by Washington. It is often the case that clearance will be a mere formality and that for certain types of clearances, the visa validity period may be limited.

“Hits” also often arise because a visa applicant has a common name as someone else whose name is blacklisted, resulting in mistaken identity or prolonged delays. Suspected criminal activity or ties can also lead to prolonged visa processing to allow for an investigation. In addition, consular officers sometimes refer some legal issues to Washington for a legal advisory opinion, such as those concerning material misrepresentations made in connection with a visa application,. If this occurs, the application will placed on hold until guidance is received from the Visa Office Advisory Opinion section in Washington, DC.

As briefly stated earlier, it is also commonplace that administrative processing will occur with specific types of visa applicants, such as scientists, researchers, and businessmen, who may be exposed to certain technologies in the United States, which fall under the Technology Alert List. Due to national security issues, the US needs to ensure that sensitive technologies do not fall into the wrong hands. Therefore, certain visa applicants, such as those listed, may receive 221(g) requests to provide documents such as an English-language resume; a list of publications; and a description of the proposed work to be done in the US. The submitted information is then forwarded to Washington, D.C. for review and consideration

  • Post-related issues can be broad in scope. They may include investigations or verifications in a visa applicant's home country or requests for information and/or documentation relating to the qualifications of the applicant. Specifically, a consular officer may seek to investigate or verify issues by issuing 221(g) notifications requesting documents and/or information such as the below:

 

  • The legitimacy of a marriage (sometimes the consulate may send an investigator to the home of a couple applying for a visa);
  • Employment of an applicant (this sometimes involves calling the visa applicant's specified employer to verify that he works at the company);
  • Tax documents or information;
  • Pension fund payments; confirming the authenticity of educational documents;
  • Verifying the intentions or existence of a sponsor (this sometimes entails calling the United States sponsor to speak to the signatory of an affidavit of support);
  • Confirming the authenticity of a statutory document, such as a marriage, birth, or divorce certificate;
  • Police Certificate from country(ies) where the applicant lived after the age of 16;
  • Certified copies of court dispositions (arrests, convictions, etc); confirmation of the date of a past departure from the US (e.g. visa overstay);
  • Employer tax documentation; additional affidavit of support;
  • Confirming a job offer (for visa lottery winners); financial documents (e.g., for applicants undergoing medical treatment in U.S.;
  • Additional information about a job to be performed in the United States or the employer.

 

  1. What should I do if I receive a 221(g) notice from a consular officer at my visa interview?

Visa applicants who receive 221(g) notifications should be very proactive. It is a good idea to cooperate with reasonable consular requests but also to aggressively challenge questionable requests, overreaching demands, and/or protracted delays in processing.

We strongly encourage visa applicants who are issued a 221(g) to contact an experienced and knowledgeable immigration attorney to better understand the reasons for the 221(g) refusal and to evaluate their cases for options and alternatives.  We are often are in a position to explain the deficiency(ies) and to help an applicant take steps to address it/them, either by preparing additional documents, or by explaining the circumstances directly to the consular officer who issued the 221(g).

  1. What do the various color-coded 221 (g) notices mean?

The U.S. Embassy uses a specific color coding for each form to indicate the type of 221(g) issued. Each form has instructions that should be followed and where applicable, required documents should be provided by the visa applicants for further processing of their applications. The colored paper may contain pre-printed lists of documents, from which a consular officer will check off appropriate boxes in line with the additional documents required for him/her to render a final decision. Below is a listing of the color codes and an explanation as to what each color typically means.

  • Blue:A 221 (g) blue slip is given when additional documentation is required. After submitting the required documents, a decision will be taken by the Consulate.
  • Pink:A 221(g) pink slip is issued when an application requires further administrative processing. The consulate will notify the visa applicant once the processing is completed. This form is frequently issued when a consular officer is doubtful about a current employer or work-related information. The visa applicant is typically given a reference ID which can be used to track case status online.
  • Yellow:A 221(g) yellow slip denotes general administrative processing. The consulate will review all the submitted documentation for both the employee and employer.
  • White:A 221 (g) white slip denotes a requirement for further processing by USCIS. The Consulate gives these cases to USCIS and a decision is taken based on the information obtained from the USCIS.  Sometimes, the content of this form is the same as the blue form, which requires additional documentation.
  1. Does a 221(g) notification mean that I will never obtain the requested visa?

Absolutely not!  For many visa applicants,  a 221(g) finding should not be viewed as the end of the road.  In fact, it is quite common to receive a 221 (g) visa refusal by a consular officer, which is essentially a Request for Evidence (RFE). Other 221(g) notices are for administrative processing and do not require additional documents from the visa applicant.  Rather, they involve internal background checks on the applicant and/or the petitioning employer, where applicable. The overwhelming majority of 221(g) denials are overcome and visas issued.

  1. Why do visa applicants receive 221(g) refusals?

As stated earlier, a 221(g) notice may be used to request additional documentation and/or information, or to place a visa application on “hold”, pending additional background and security checks. Some 221 (g) notifications based on the need for administrative processing may be as a result of a fraud check on the submitted documentation or simply a matter of the consulate waiting for the PIMS copy of the approved petition to be scanned in for the consular officer's review.  Other common reasons include:

  • Worksite/Client Information provided at interview is different than worksite/client listed on the I-129 petition:  Consulates have been denying cases where the worksite or client that the visa applicant state s/he is or will be working is different than the worksite or client listed in the PIMS copy of the approved petition.  This may lead to an immediate denial or the issuance of a 221(g) notice, which may eventually lead to a 221(g).
  • Inconsistent responses in the visa interview:Some visa officers compare the answers provided by visa applicants at their interviews with the information contained in their H-1B filing, such as where they will be working, their duties on a project, and so forth. They often issue a 221(g) notification if they hear inconsistencies in the information provided by the visa applicant so as to ascertain the necessary facts
  • A subsequent employer files another H-1B petition for the same project after the visa applicant received 221(g) with earlier employer: Some consular officers will issue a 221(g) letter if they believe that nothing  has changed from the first interview except for the employer despite any changes that may have occurred by eliminating a vendor or party.
  • Employer's record raises red flag with officer: During the interview, the consular officer will access his/her database regarding the employer and, if there is negative information regarding the company, this could trigger a 221(g) finding. There may be warnings or flags in the consulate's system, which alert the consular officer to fraud, or suspected fraud, by an H1-B-petitioning employer. This is related to an overall focus on fraud in the immigration process.
  • Doubts regarding the existence of an employer-employee relationship. Ultimately, many H-1B visa denials are issued based on a finding that a bona fide employer-employee relationship does not exist between a petitioning employer and the sponsored beneficiary. In fact, there has been an increase in 221(g) denials after the USCIS issued the January 8, 2010 USCIS memo, which provided guidance on employer-employee relationships and third party placement in the H-1B context. It is evident that the Department of State (DOS) often interprets the mentioned employer-employee memo differently and often times conflicts with the USCIS interpretation of the memo, which is evidenced by the number of USCIS approvals that ultimately lead to visa denials. 
  • Worksite/Client is different than worksite/client listed on the I-129: Consulates have been denying cases where the worksite or client that the visa applicant states they are working at is different than the worksite or client listed in the PIMS This may lead to an immediate denial or  the issuance of a 221(g) notice.
  • There are also occasions where it appears that consular officers issue all encompassing 221(g) notifications for H-1B visa applications, which are essentially laundry lists, which seem to ignore or overlook the substance of information contained in the approved H-1B petition and/or information provided at the time of the visa interview.
  1. What types of documents are typically requested in 221(g) letters in for H-1B visa applicants?

As stated earlier, there are standardized lists used by U.S. consulates in India and elsewhere for 221(g) notices associated with H-1B visa applicants (and sometimes even H-4 visa applicants). These lists typically ask for various combinations of the below:

  • A copy of the complete H-1B petition, including all supporting documentation filed with USCIS in support of the petition;
  • Employment contract / Offer letter between H-1B employee H-1B employer;
  • H-1B applicant's educational documents
  • H-1B employer's last two (2) income tax returns and financial statements;
  • A notarized list of all the petitioning employer's employees - The list must include names, job titles, start and end dates of employment, salaries, and immigration statuses. The request is sometimes limited to employees at the particular job site, but is often more expansive;
  • H-1B employer's payroll records, state unemployment wage reports, for the past three (3) quarters; federal tax returns; or other highly-sensitive and private company information. 
  • End Client letter, verifying the position, project length; educational requirements for the position; project documents
  • End client letter and copy of the contract between the H-1B employer and end client, which details the timing, terms, and conditions of the project; and
  • If the position is for work on an internal development project, a detailed and specific description of the internal development project, which includes a complete technical description and timeline, the individual's current status, the number of employees assigned to the project, the worksite location, and a marketing analysis for the final product.
  1. Do only visa applicants employed by IT consulting companies receive 221(g) notifications?

No, although such notifications typically involve IT consulting company employees applying for H-1B visas, other professionals in other occupational fields have received the same (albeit a smaller proportion experiences such problems). A 221(g) refusal can be issued in any type of visa application. 

  1. Is it true that H-4 spouses have received 221(g) refusals and requests for H-1B employer documents?

Starting in early 2011, particularly in Chennai, India, there have been reports of cases where H-4 spouses applying for visas have been issued 221(g) letters and asked to provide detailed documents regarding their spouses' H-1B positions and their H-1B employers' operations (i.e. tax documentation, employee records to the spouses of their workers, etc.). Such documents are generally expected or anticipated where the H-1B spouse is applying for the H-1B visa, not his/her spouse applying for an H-4 visa. 

In the recent past, H-4 visa applications have been fairly routine – the H-4 spouse applying for his/her visa was expected to demonstrate a few basic points of eligibility. S/he had to prove marriage to the H-1B spouse with the associated H-1B petition approval. This was accomplished by submitting the marriage certificate and related documents, the spouse's H-1B petition, and his/her H-1B approval notice

The H-4 visa applicant also had to demonstrate that his/her H-1B spouse was maintaining his/her H-1B status. This was done by providing a current letter H-1B employer letter, which, verified employment, along with the spouse's current paystubs.  There are some instances where consular officers requested verification that the H-1B spouse continuously maintained valid status, which would indicate whether the H-4 spouse would also be likely to maintain status, if permitted entry to United States. This typically involved a review of the H-1B beneficiary's prior immigration approvals and pay history. The pay history was also relevant to establishing that the H-1B principal could financially support the H-4 derivative spouse.

9.      What types of documents are typically requested in 221(g) letters issued to H-4 visa applicants requesting the submission of H-1B documents?

 

As stated earlier, there are times when H-4 visa applicants receive 331(g) requests for the same types of documents requested for H-1B visa applications, such as the spouse's H-1B Employer's documents, including tax returns, state unemployment filings, information about the employer's other workers, and end-client letters.  Some H-4 221(g) requests are pre-printed with requests for an end-client letter verifying the H-1B spouse's position. It should be noted that, absent a complete response to the issued 221(g), the visa application is likely to be denied.

  1. How long should I expect a decision on my visa application to be rendered after 221(g) Administrative Processing Issuance? Can the processing be expedited?  How can I inquire about my case status during visa application processing?

If the 221(g) notice does not request documents, it is safe to assume that the case is under administrative processing. Applicants whose cases are pending administrative processing should follow the directions they are given for periodically checking the status of their case via the Embassy and Consulate's web based case status service. Processing times vary by applicant and the specific situation that resulted in administrative processing. Cases under administrative processing can take many months, with very little information provided regarding time frame for a decision.  Further, there is no way to expedite a visa application that has not been adjudicated due to the need for further administrative action.  Likewise, the consulate cannot provide updates on the status of a pending visa application once processing has started. When processing is complete, the visa applicant's passport will be returned to him or her by courier.

If a visa applicant has received a 221(g) notice with a request for the submission of documents, the waiting time can vary, from a few weeks to a few months. There are some instances where visas are approved following document submission. However, in many others cases, the visas are denied.

 If a visa applicant's application is denied, the consulate returns the H-1B petition to USCIS for reconsideration and possible revocation. USCIS should then review the case and either reaffirm the approval or issue a notice of intent to deny (NOID) to the H-1B employer.

  1. Under what circumstances will my case be considered abandoned?

A case is considered as abandoned if the visa applicant fails to respond, where applicable, within the stipulated period. If a visa application is refused a visa under 221 (g) and the applicant was told to provide further information, the applicant must follow up within one year or the case will be closed. It should be noted that, if the Consular Officer told the applicant that the 221 (g) refusal was for administrative processing, then there is no further action for the applicant and the one-year limit does not apply.

  1. If USCIS has approved my H-1B petition, what authority does a consular officer have over visa issuance?

Consular officers are supposed to give deference to USCIS approvals. Notwithstanding, they  have the authority to assess whether an individual qualifies for the requested visa. Therefore, the fact that an individual has an approved H-1B petition by USCIS does not necessarily translate to an automatic H-1B visa issuance. The same is true for all visa applications. Nonetheless, there are standards that apply to this process. Consular officers are not supposed to re-adjudicate an approved petition - they should not use personal opinion to completely review and rethink whether each case should have been approved.

Consulates are expected to rely on both the Foreign Affairs Manual (FAM) and USCIS decision on a case. The FAM is the authority governing U.S. consular officers around the world and contains U.S. Department of State (DOS) policy and procedures on visa adjudications, in compliance with immigration laws and regulations.

With respect to approved H-1B petitions, 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."  In other words, US consulates should not second-guess the USCIS (which is part of the DHS) decision approving an H-1B petition.

The FAM also establishes that an approved H-1B petition is considered valid evidence that a beneficiary is entitled to H classification. In fact, 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." Further, 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 H-1B petitions.  It appears as though the failure to routinely acknowledge the required deference and limitation on a consulates authority has frequently resulted in laundry list 221 (g) refusals.

  1. What is the authority of a consular officer to issue 221(g) visa refusals?

Consular officers (COs) are advised in the FAM that their requests for documents in the 221(g) notices should be limited to those documents that were unavailable to the USCIS when the H-1B petition was approved. This does not mean documents that the USCIS chose not to review when the agency 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 also provides instructions regarding when a consular officer is permitted to question the validity of an H1B petition.  The FAM states that "... the approval of a petition by the DHS does not relieve the alien of the burden of establishing visa eligibility." In other words, the H-1B/H-4 visa applicant must establish his/her eligibility for their respective visas.

The FAM explains that, in the course of the visa interview, questions may arise as to an applicant's eligibility. It states: "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."

Therefore, if a consular officer learns of negative or questionable information during the visa interview, s/he can request documentation on the issue in question. This typically includes proof of experience or education. If a CO asks a visa applicant basic questions within the applicant's claimed field of expertise and the applicant does not appear to possess the level of expected knowledge, it may indeed be appropriate to verify the claimed experience and/or education.

14.   What happens if my H-1B visa application is denied?

If an H-1B visa is denied, the consulate generally returns the approved H-1B petition (or any other USCIS-approved case for the matter) to USCIS for review and potential revocation.  The FAM instructs consular officers to use this procedure "sparingly to avoid inconveniencing bona fide visa applicants and their employers, and to avoid duplication of efforts by the USCIS (i.e. re-doing the entire process for no good reason).

  1. Under what circumstances should a consulate return an approved H-1B petition for possible revocation?

The procedure of requesting that USCIS revoke a previously-approved H-1B petition is only appropriate under the FAM for cases with specific evidence of requirements for automatic revocation, such as a petitioner that has gone out of business, misrepresentation in the petition, lack of the beneficiary's qualifications, or other previously-unknown facts that might change USCIS's previous decision to approve the case.

The H-1B petitions are returned to the Kentucky Consular Center (KCC) and accompanied by an explanation and any documentation surrounding reason for the request. The petition and the review request are then supposed to be forwarded from the KCC to USCIS office/Service Center that initially approved the case. USCIS is then supposed to review the case, and either reaffirm its prior decision to approve the petition, or send a notice of intent to deny (NOID) to the petitioner.

  1. How long does the process of returning an approved H-1B petition with a request for revocation take?

Historically, the return and review of the H-1B petition takes several months to a year or two. In most cases, by the time the USCIS reaffirms the earlier H-B petition approval, the time on the requested H-1B petition has either expired or nearly expired.  By this time, the visa applicant may have either lost his/her job, the project has been completed, or someone else has replaced him/her on the project.. It may therefore make sense to consider other options rather than wait or USCIS action on the returned petition.

  1. What happens once USCIS receives the returned petition with a request for revocation?

Once USCIS receives the petition, they will send a notice of receipt to the petitioner.
USCIS will review the petition, which takes about 2-3 months and either issue a NOIR (Notice of Intent to Revoke) or NOID (Notice of Intent to Deny). The petitioner will be given some time (usually 30 -60 days) to respond. Based on petitioner's response, USCIS will either finally reinstate the petition or deny it. If the petition is reinstated, then USCIS will send the document to the concerned consulate, which in turn will contact the visa applicant to reappear at the consulate.

  1. Given the concerns regarding the issuance of 221(g) refusals, what are some possible options for H-1B/H-4 visa applicants?

One option is to limit travel abroad where one believes it is possible that a 221(g) refusal could be issued with respect to a visa application. Of course, this may not be practical as there are often reasons why individuals eventually need to travel.  If travel is required, it is a good idea to schedule a visa appointment at a time when ones presence is not highly critical (for example in a project) for the company. In case of 221(g) administrative processing, then hopefully the project will not be affected due to the necessary extension of vacation time. Visa applicants should be fully equipped with the documents proving their eligibility and prepared to dispute the requests for evidence in 221(g) notices, as well as to challenge any visa denial decision. It is critically important for H-1B visa applicants to ensure that their employers will support them, in the event that difficulties are encountered in the visa application process, by providing requested documentation and not terminating employment due to consular delay and/or H-1B visa denials. It may also be a good idea to discuss the possibility of working from home (in India, Nepal, etc.) and to carry a laptop on the trip overseas. It goes without saying that a reliable internet connection and a way to communicate with ones employer (Phone, Magic Jack, Vonage, Skype, etc.) are also important.

Finally, sometimes there is the option of renewing H-1B filings and visa applications. 

 

  1. How do I avoid a 221(g)?

This is a good question, although there really is no simple answer!  However, there are certain

proactive measures that can be taken to try to minimize the chances of receiving a 221(g) letter

at the consulate. Here are a few suggestions:

  1. Review all documentation that either you filed, or which was filed on your behalf, with USCIS.  If the information in the petition is no longer accurate, you may need to amend it with USCIS before applying for a visa. For example, in the H-1B context, if your worksite or client has changed, it is a good idea to amend the previously approved petition before attending a visa interview. Failure to do so has been noted as a consistent cause for denials.
  1. Consult with an experienced and knowledgeable immigration attorney to ascertain whether there have been any recent changes or problems that they have encountered with other clients applying abroad.  It is important to understand that things are constantly changing at US consulates overseas – therefore it is critical to speak with an attorney who receives feedback on visa interviews either through his/her clients or associates.
  1. Prepare and organize prior to visa interview. The visa interview lasts about 2-3 minutes – clearly, then there is not much time for the consular officer to make a decision on the application before him/her   Consular officers dislike having to wait for visa applicants to locate documents as this is a waste of their very limited time.  Therefore, all documents should be well organized and easy identifiable upon request. 
  • The Purpose of Section 221(g)
  • One of the most common questions associated with section 221(g) of the Immigration and Nationality Act is “why does it exist?” Although section 221(g) suspends visa applications, it is actually in place to help immigrants. Section 221(g) is placed on a visa application as a temporary refusal that allows the immigrant another chance to submit missing or incomplete documentation. Although a straight acceptance or refusal would be faster, the U.S. Consulate uses section 221(g) to give applicants and intitial opportunity to fix any inaccuracies in the application.
  • The most common reason for a 221(g) is a lack of the correct documentation. Also, all of the information on the documents must be accurate. Supporting documents, such as proof of employment, are also required.
  • Once an individual provides the missing documentation and makes all of the recommended adjustments to the visa application, the 221(g) will be “overcome” and the application will move forward. If the application is accepted, a visa will be issued. If it is refused, the consulate will guide the individual and the visa application can be submitted again.
  • Section 221(g) is technically a visa application refusal. The application was not accepted and processed the first time. If a visa application is denied following a 221(g), future applications for a visa must answer “yes” when asked if a visa has been denied before. Although the new application asks about past refusals, the refusals do not impact the immigrant's chances of receiving a visa. However, it is important that the individual answers the question truthfully. It is possible that the applicant will be asked to explain the reasons for the past visa denial during the current visa application interview.
  • Although the consulate will advise the immigrant on how to proceed once a 221(g) has been issued, it is highly recommended that the individual seek the counsel of an experience immigration attorney. An attorney can closely analyze the case and determine what steps are necessary to meet the requirements of the 221(g). The attorney can speak directly to the immigrant's consular officer who issued the 221(g) and prepare the necessary documentation. Having quality representation provides the immigrant with the assurance of knowing that all legal matters will be resolved to ensure that accurate documentation is presented to the consulate once the 221(g) is overcome.

Summary is needed here onwards

How do you qualify for U.S. Visas:

You, as a visa applicant, qualify for a visa by being eligible under all applicable U.S. laws for the visa category for which you are applying. During your visa interview, the consular officer at the U.S Embassy or Consulate will determine if you are qualified for the type of visa for which you are applying. For example if you are traveling for a trade shows or signing of a contract, you might be eligible for B-1 visa. However, the Consul officer will look into whether this person might not return back to his or her home country and ask

The sole authority to approve or deny (called adjudicate) visa applications, under U.S. immigration law section 104(a) of the Immigration and Nationality Act, is given to consular officers at U.S. Embassies and Consulates.

Visa Denials

With few exceptions, every visa applicant is interviewed by a consular officer at a U.S. Embassy or Consulate. After all available information is reviewed, the application is approved or denied based on U.S. immigration law.

There are many reasons why a visa application may be denied. In some instances, the application is denied because necessary information or supporting documents were not submitted by the applicant. In other instances, the application is denied for more serious reasons. An applicant's current and/or past actions, such as drug or criminal activities, as examples, may make the applicant ineligible for a visa.

If denied a visa, the applicant is given a reason based on the section of law which applies. Visa applicants are also advised by the consular officer if they may apply for a waiver of their ineligibility. Several of the most common reasons for visa ineligibilities are explained below. For more information, review the complete list of visa ineligibilities in the Immigration and Nationality Act (INA), and amended laws.

Section 214(b) of the Immigration and Nationality Act

Section 221(g) of the Immigration and Nationality Act

Section 212(a) of the Immigration and Nationality Act

(1) Health-related grounds. -

(2) Criminal and related grounds. -

(3) Security and related grounds. -

(4) Public charge.-

(5) Labor certification and qualifications for certain immigrants.-

(6) Illegal entrants and immigration violators. -

(7) Documentation requirements .-

(8) Ineligible for citizenship .

(9) ALIENS PREVIOUSLY REMOVED. -

(10) MISCELLANEOUS.

(11) Lack of actual specialty occupation or specialized knowledge/managerial position in the United States for H-1B or L-1 workers

(12) Suspect degree or past experience of H-1B or L-1B workers

(13) Negative information originating from the USCIS or DOL Site visits

(14) Past unauthorized stay in the U.S. by virtue of benching or illegal work.

Visa refusal under section 214(b), 221(g) and administrative processing are difficult to overcome as the consular officer has determined that there's insufficient evidence in the case to warrant issuance of a visa. The visa applicant has to provide evidence of strong ties to a residence abroad, or the bona fide of the relationship to the US citizen in fiance visa K1 cases, and overcome any suggestion of a sham marriage or finding of fraud.

Visas to the US are routinely denied for a variety of reasons. The US consular officer reviews the documents, investigate the individual's background, and conduct a personal interview to evaluate whether the individual is eligible.

When an immigrant visa case is not approved the applicant is issued a 221(g) or "blue sheet" indicating the evidence submitted was insufficient. When a non-immigrant visa is not approved, it's basically due to the requirements of section 214b, wherein the applicant did not have evidence of strong ties to a residence abroad to compel the applicant to return home after a short, temporary visit. Administrative processing is sometimes equivalent to a 221(g) refusal as the consular officer was unable to approve the case based on the evidence submitted, or a discrepancy was discovered requiring additional time to investigate. Administrative processing cases may languish in visa purgatory for a long time.

214(b)
Section 214(b) is part of the Immigration and Nationality Act (INA). Most visa applicants apply for a tourist visa or a student visa in this category. To qualify for a visitor or student visa, a prospective visitor or student applicant must meaningful evidence of funding, valid purpose of the trip, and strong ties in a residence abroad to compel the applicant to return to after the visit.

The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. Evidence of "strong ties" may be illustrated by consistent and steady history of employment, sufficient collateral or property ownership to cover travel expenses, and a succinct and sincere reason for the visit. These are compelling factors the consular officer consider when evaluating an applicant's eligibility for the visa. The brief interview with the applicant is also valuable in the consular officer's decision to approve or deny the visa.

221(g)
U.S. consulates abroad have been known to deny visas based upon INA Section 221(g) even after the United States Citizenship and Immigration Services (USCIS) has approved a petition for the visa application.

In a 221(g) case, the consular officers determine that the requirements for a petition-based visa are not met by an applicant. They can refuse to issue the visa under Section 221(g). When they do so, they also request that the USCIS revoke the petition that was approved earlier.

Even though the USCIS has the primary authority to determine whether or not a person meets the requirements for a particular, petition-based visa classification, the consulate may reach a different conclusion and request that the USCIS reconsider its original approval of a petition. What can happen is that new, negative information can come to light at the time of the interview and the interviewing consular officer may conclude that the visa applicant either does not appear to meet the requirements of a fiancé/e. Essentially the fiance(e) did not convince the consular officer that the relationship is bona fide and possibly a sham marriage entered into to circumvent US Immigration law. Cases issued 221(g) are equivalent to a denial, however, some languish in visa purgatory similar to administrative processing.

Administrative Processing
In cases pending in Administrative Processing (AP) the consular officer may need more time to review the case before determining whether the applicant is eligible for the visa. In immigrant visa cases such as the fiance(e) visa, the consular officer may conclude at the interview that there's not enough convincing evidence to deny the case nor approve it, there may be some red flag issue, or a discrepancy in the case to warrant a secondary review. Cases in AP may take months to conclude, however, in this writer's experience, providing additional compelling evidence of the bona fides of the applicant's relationship to the American petition may assist the consular officer in making a definitive decision in the case.

AP is a state of flux that leaves applicants frustrated and confused as there's no definitive guidelines as to what the immigration issues are and whether the applicants can do anything to compel the consular officer to issue the visa. It is within the discretion of the consular officer to hold the case and investigate it further, thereby leaving the applicant with neither an approval nor denial.

Whether the case is issued a 214(b), 221(g) or placed in administrative processing, a competent immigration attorney should be able to review the case and provide the best course of action based on the applicant's unique sets of facts. Consular processing attorneys are in a highly advantageous position to assist since they are able to inquire directly with the consulate and embassy where the applicant's case was denied.

With few exceptions, every visa applicant is interviewed by a consular officer at a U.S. Embassy or Consulate. After all available information is reviewed, the application is approved or denied based on U.S. immigration law.

There are many reasons why a visa application may be denied. In some instances, the application is denied because necessary information or supporting documents were not submitted by the applicant. In other instances, the application is denied for more serious reasons. An applicant's current and/or past actions, such as drug or criminal activities, as examples, may make the applicant ineligible for a visa.

If denied a visa, the applicant is given a reason based on the section of law which applies. Visa applicants are also advised by the consular officer if they may apply for a waiver of their ineligibility. Several of the most common reasons for visa ineligibilities are explained below. For more information, review the complete list of visa ineligibilities in the Immigration and Nationality Act (INA), and amended laws.

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