Bhagwati & Associates, PLLC.: VISA DENIALS AT U.S. CONSULAR POSTS

Bhagwati & Associates, PLLC.: VISA DENIALS AT U.S. CONSULAR POSTS: Our office is inundated with regular inquiries and requests from individuals and their employers seeking representation on their application...

VISA DENIALS AT U.S. CONSULAR POSTS

Our office is inundated with regular inquiries and requests from individuals and their employers seeking representation on their applications denied at U.S. consular posts (post).

The current spate of H1B/H4 visa denials at the posts has inflicted tremendous agony to employers from IT Industry as if their initial battle with the United States Citizenship and Immigration Services (USCIS) to establish employer-employee relationship and employer’s right to control was just not enough. Recently, the rates of reported issuance of 221(g) visa refusals and denials have reached a critical level. Even though employers from other industries have also been subject to severe treatment at the hands of post, the IT Industry has been subject to relatively and significantly a higher amount of dose.

Despite the fact that documents are either handed over or offered to visa officer at the post, the documents aren’t reviewed and instead a blue sheet popularly called 221 (g) letter is handed over to applicant seeking documents to establish employer-employee relationship and the employer’s right to control. The phenomenon is so common now that it has led to discourage a significant number of foreign workers to travel out of the United States even on occasions strongly warranted by emergencies due to work, medical or other reasons.

The denials don’t find a fair premise when the applicants have duly approved approvals from the USCIS only after the USCIS has thoroughly examined to its satisfaction the facts of each case. The USCIS is an agency that issues H1B approvals and the Department of States (DOS) is a supervising body of the post (the post issues requisite visas to travel into United States). There are two issues that visa applicants always find hard to grapple with: (i) If the USCIS has approved a petition, why should the post deny a visa and (ii) why should a failure of two of these agencies to sync up with each other result in denial of visa?

The solution is not that simple. Visa is generally refused either under Section 221(g) or Section 214(b) of the US Immigration and Nationality Act. Section 221(g) provides that additional legal requirements must be met before the visa can be authorized while Section 214(b) of U.S. Immigration Law presumes that applicants for nonimmigrant visas are intending immigrants and must be denied visas unless they provide convincing evidence of family, social, and economic ties to a residence abroad. If your visa is refused because of Section 221(g) then you may meet legal requirement within one year. If your visa is refused under Section 214(b) then you will have to reapply. If you are re-applying, you will have to show changed circumstances to evident that you do not have any intention to immigrate. Section 214(b) states that “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status...”

We strictly recommend responding to each notification from the post, requesting additional evidence because failure to respond can be deemed as acceptance of asserted reasons for denial/refusal and can subject necessary audits of employers at the hands of the USCIS and the United States Department of Labor (USDOL).

It is thus of prime importance to follow certain strict procedures prior to applying for a visa:

hand carry to visa interview the copy of petition that was filed with the USCIS; familiarize yourself thoroughly with Form I-129, employer support letter, Labor Condition Application, and all the supporting documentary evidence enclosed with the petition; conduct a mock interview with your employer and lawyer who represented your employer on the petition; know your employer’s business operations (scan employer’s web site thoroughly), revenues, work locations etc; if you are working at client location, you must know complete details of client/its operations/work location/type of project or assignment/client manager, your supervisor employed by your employer; have your lawyer ensure that a copy of petition is sent to Petition Information Management Service, known as PIMS. PIMS is a program that was rolled out by DOS as a measure of inter-agency method to verify that the petition is approved by the USCIS. Under this verification system, the USCIS is required to send information on all approved petitions requiring visa issuance to the Kentucky Consular Center (KCC), which is part of the DOS. KCC scans and enters all pertinent information from petition filed by employer into PIMS. A petition must be confirmed in PIMS by the post before issuance of the visa. It has been found that the USCIS has not been transmitting petitions filed for change of status and extension of status to the KCC. Thus, it is imperative to ensure that copy of petition has been sent to PIMS prior to applying for visa at the post.

It is not possible for a petitioner or applicant beneficiary to contact KCC directly to verify the existence of a positive approval record before an interview. When a post cannot verify petition approval through PIMS, the PIMS cable instructs the post to take specific action. If a petition is not in PIMS at the time of a consular interview, the consular officer is required to e-mail KCC, which in turn will research the approval. Understandably, this is usually accomplished within two working days. However, verification can take longer if the petition information was not sent to KCC by the USCIS service center or if KCC is backlogged in its data entry/scanning process, or if KCC fails to timely notify the consulate of the verification, or if the consulate fails to check or follow up on positive verification that was sent. It is thus, that when a post is waiting for a PIMS notification to issue a visa, an applicant is not directly informed about a delay related to PIMS, but rather, the applicant is advised that the visa application is undergoing further "administrative processing".

Therefore, the applicants of H1 and H4 visas and employer must, very carefully, consider the risks involved in visa application process since any misstep in this journey can lead to never ending delays and denials. At Bhagwati and Associates, we are always readily available to guide and help those facing delays and denials of visas at the posts. We will collect all facts and records to plan and assist you with well designed and organized ways to present your case to the posts thereby ensuring that your case is well received and adjudicated by the post.