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.

Bhagwati & Associates, PLLC.: Can I move from EB3 to EB2; a perplexing question ...

Bhagwati & Associates, PLLC.: Can I move from EB3 to EB2; a perplexing question ...: Reasonably paced EB2 for past few months has lead many sitting under the umbrella of EB3 for almost a decade to think if there is any pos...

Can I move from EB3 to EB2; a perplexing question fighting many

Reasonably paced EB2 for past few months has lead many sitting under the umbrella of EB3 for almost a decade to think if there is any possibility to file another PERM under EB2 category retaining the EB3 priority date and jumping on to a fast moving EB2 bandwagon. By no means can this be deemed as unreasonable thought as there are options for those who can qualify for EB2 category.

Our office has been contacted overwhelmingly by significant EB3 category holders wanting to know if there are any prospects that can help them see light at the end of the tunnel by filing PERM under EB2 and retaining EB3 priority dates. We do understand the pain inflicted by exponentially slow moving EB3 process on those who have I-140 approved and know will have to sit tight for multiple years before they can step forward to adjust the status, or on those who have filed for adjustment and are just waiting for the doors to open. The salt on the wound is added when they are living with a fear that they can’t travel out of USA to see their long awaiting families because without either Advance Parole or visa they may not come back as US Consulates have been denying visas at ease for reasons such as lack of Employer- Employee relationship and/or Employer’s Direct Right to Control. The innocent couldn’t have asked for any more agony. I would want to make it simple for all grappling to find the right answer.

If you have PERM and I-140 approved under EB3, It is possible that you may qualify for EB2 if you acquired additional education and/or experience during years when the EB3 has been pending. Due to better performance on the job, you may have been upgraded to a next level that may help you meet EB2 requirements. This is pertinent to note that EB3 can have either his current employer or new employer sponsor new application under EB2 category. It thus leaves a little larger ground to play with as the restrictions don’t apply only to existing employer. However, it must not be forgotten that the new position and individual with EB2 sponsoring employer (existing or new employer) must meet EB2 requirements. Individual must have requisite education and experience required for this new EB2 position. It is very important to analyze the EB2 requirements for the new position because a slight variation from EB3 position can severely impact the success of entire process. It is strongly recommended to seek consultation of experienced Immigration Attorney having experience in this area. It is important to note that new filing under EB2 is prerequisite for one to become eligible to request USCIS to retain EB3 priority date after EB2 gets approved meaning EB3 case holders cannot move to EB2 without having filed new case under EB2 category.

EB2 can be successful with the existing employer if the EB3 holder was eligible for EB2 prior to the date he/she joined the EB3 sponsoring employer. Experience with the EB3 sponsoring employer may not be used as that will conflict with the EB2 requirements when EB2 is filed by the existing employer. In the event, EB2 case gets approved, USCIS can then be requested to transfer the EB3 priority date to the newly approved EB2 case whether it was sponsored by existing or new employer. This would require I-140 approval from EB3 case in order for USCIS to transfer the EB3 priority date to EB2 case. In the event, I-140 was revoked, USCIS would deny the request. This process of seeking a transfer is detailed and necessitates very careful insight of law, its application and mandatory procedural issues. At this stage when EB2 is approved, the process must be handled very carefully to ensure the path to success continues. New EB2 process does not adversely affect the approved EB3 case and similarly is not affected by EB3. These are two independent cases that can be maintained in parallel.

Each case must be carefully examined based on its facts before a case is subjected to new EB2 filing as every case resides on its own facts and must not be weighed on the irrelevant facts. It is thus important to note that process of transferring EB3 priority date is very delicate and complicated and must be undertaken in consultation with experienced attorney to get benefits as desired.

Asylum and pitfalls

Asylum is relief for a foreign national that allows a refugee to remain in the United States of America and ultimately apply for permanent residence. The term “refugee” is defined in 8 U.S.C § 1101 (a)(42)(A) to mean, among other things, an alien who is unable or unwilling to return to her home country “ because of persecution or a well-founded fear of persecution on account of “five enumerated grounds: race, religion, nationality, membership in a particular social group or political opinion.” These five grounds are exclusive and therefore the individual must show fear of persecution or actual persecution on account of one of these grounds and face removal. If it is a “fear of persecution”, it must be such that individual must actually fear persecution and must be so reasonable that a reasonable person on the street would have the same fear. If it is “actual persecution”, the individual must establish that the persecution would be carried out by her home country’s government or by forces that here government cannot or will not control.

If the individual can establish that she was persecuted in the past, future persecution will be presumed. However, the U.S. government can rebut that presumption in one of two ways: (i) there has been a fundamental change in the circumstances such that the individual no longer has a well-founded fear of persecution because the regime in power in individual’s home country that ruled when she entered U.S.A is no more in power and has been replaced by another regime that is not likely to persecute her); or (ii) the individual can avoid future harm by relocating to another part of country.

It may seem easier to present the above grounds but in practice the elements needed to gain asylum are often difficult to establish.

There are two ways of obtaining asylum in the United States; (i) through the affirmative process and, (ii) defensive process.

Affirmative Asylum Process (with USCIS)

To obtain asylum through the affirmative asylum process individual must be physically present in the United States and must apply for asylum status regardless of how she arrived in the United States or her current immigration status. She must apply for asylum by submitting Form I-589 within one year of the date of her last arrival in the United States, unless she can establish (i) changed circumstances that materially affect her eligibility for asylum or extraordinary circumstances relating to the delay in filing or (ii) she filed within a reasonable amount of time given those circumstances.

If her case is not approved and she does not have a legal immigration status, USCIS will issue a Form I-862, Notice to Appear, and forward her case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). Individual may live in the United States while her application is pending before USCIS. If she is found ineligible, she can remain in the United States while your application is pending with the Immigration Judge. Most asylum applicants are not authorized to work.

Defensive Asylum Process (with EOIR)

A defensive application for asylum occurs when individual requests asylum as a defense against removal from the U.S because she is in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individual is generally placed into defensive asylum processing in one of two ways;

• She is referred to an Immigration Judge by USCIS after she has been determined to be ineligible for asylum at the end of the affirmative asylum process, or

• She is placed in removal proceedings because she:

1. was apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status, OR
2. was caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, was placed in the expedited removal process, and was found to have a credible fear of persecution or torture by an Asylum Officer.

Immigration Judges hear defensive asylum cases in adversarial proceedings. If found eligible; the Immigration Judge will order asylum to be granted. If found ineligible for asylum; the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief; the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.