Attorney Murthy's Visit to the U.S. Consulate in Mumbai (Bombay)
Posted May 30, 2000

Attorney Sheela Murthy traveled to the U.S. Consulate in Mumbai, India in April 2000 to meet with the Chief of the Consular Section, Donald E. Wells, and the Chief of the Immigrant Visa Section, Patrick R. Quigley. The meeting was a valuable opportunity to discuss various issues pertaining to non-immigrant and immigrant visas.

The following are some of the questions posed by Ms. Murthy, and her summaries of the responses from the consulate officials:

Query 1 : What can relatively small or new companies do to facilitate H-1 Visa issuance to their prospective employees? Companies like Microsoft would never have become large if they had not had the opportunity to hire the appropriate and qualified technical personnel, so you need to consider that.

Answer 1 : What is important than the size of the company is what the applicant mentions during the visa interview. Our main concerns are fraud issues. Since the Consular Officers have various concerns with respect to both non-immigrant visas and immigrant visas on fraud matters, it is advisable that the candidate be well prepared for the interview with respect to the nature of the employer's business, and their own professional skills. For example, if a computer programmer is unable to answer simple questions pertaining to computer hardware or software, there may be difficulty in obtaining an H1B visa.

In those cases where the applicant does not have the appropriate level of experience, or is unable to obtain the appropriate reference letters from prior employers and the experience is required to compensate for the lack of a four year college education in the relevant field, the experience letters and the degree certificates are analyzed and verified.

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Query 2 : What is your Post's current policy with respect to representation by AILA attorneys in Consular interviews?

Answer 2 : Don Wells, Consular Chief, commented that the minute you let one person in, everyone will want to come in and act as the attorney of record. The only times that they allow another person to attend the interview is when an adult is supervising a child or assisting a handicapped person. In most other circumstances, they will not allow any other person to enter. An attorney can wait outside; and after the interview is concluded, the attorney can meet the consular officer to discuss the reasons for the denial of the case. (Attorneys would not ask to meet with the Consular officer when the case is approved!)

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Query 3 : Do you have a Business Express Program for companies that frequently send their employees on business trips to the U.S.? What are the criteria and procedures?

Answer 3 : Criteria for the Business Express Program for companies that frequently send their employees on business trips to the U.S. are set forth at our website located at <www.usia.gov/posts/mumbai>. The criteria and procedures are all mentioned on our website.

Please note that participation in the Business Express Program is by invitation only. The Consulate requires that the company have processed at least thirty (30) cases each year for business travelers and not for H-1B applicants. It is not efficient for us, from an administrative point of view, to allow the participation of companies with fewer than thirty B-1 applicants per year.

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Query 4 : We have been very favorably impressed with the quick turnaround time for immigrant visa applications submitted with attorney-certified I-140 packages. Do you consider this expedited process to be a success?

Answer 4 : The general policy is that we at the Mumbai Consulate will accept I-140 Petitions as long as the original I-140 Approval Notice is included with the package and copies of all relevant documents submitted with the I-140 Petition to the INS are attached. In addition, the dates should be current when the package is sent to us since we do not have space for storage facilities at our Consulate.

The Mumbai Consulate receives the visa numbers even before they are posted by the U.S. Department of State. We receive the chart early in the month and at that time we decide to go ahead and issue visa appointment dates for candidates if the dates are current and we have the above package.

One of the reasons why the Mumbai Consulate prefers to restrict the expedited process to EB-1 and EB-2 cases is because we find that in many of the EB-3 cases there is greater fraud and the people are not as well qualified either with education or experience. We do process those EB-3 cases where the person is educated or which are not considered high maintenance or high fraud cases.

With respect to our processing I-140 packages, we have the discretion whether or not to accept the case based on the original approval and attorney certified copies of the I-140. So far, we have seen very qualified cases and as long as we are convinced that there is a legitimate claim to the immigrant visa, and the applicant has jurisdiction at the Mumbai Consulate, we are happy to go ahead and process the immigrant visa cases and issue the visas. At present, we have processed and approved about 400 immigrant visas since October 1, 1999 in the employment based categories.

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Query 5 : Your post has certainly set the standard for accessibility by Email. Have the officials at your post considered encouraging other posts to provide status updates to applicants by Email, or offering training and ideas to posts seeking to implement such a system?

Answer 5 : Assistant Secretary of State Mary Ryan has allowed each Consular Post to decide whether or not they would like to be accessible via Email. Apparently the U.S. Department of State does not necessarily encourage use of Email and many of the Consular Posts find that it takes a lot of person hours to review and respond to Emails. The Mumbai Consulate is willing to help out but so far their help has not been solicited!

At the Mumbai Consulate we consider that our Email process is probably one of the most efficient and best among U.S. Consulates worldwide. We got into this process seriously about one year ago, with Patrick Quigley having solved most of the Email accessibility issues both for the non-immigrant and immigrant visa sections of the Consulate.

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Query 6 : Are there any policies or procedures of which you would like us to be aware?

Answer 6 : We will not issue B-1 or B-2s to spouses or children of green card holders. We are very concerned with the incredible delays for spouses and children of green card holders to enter the United States while spouses of H-1B holders enter immediately. Although we understand how the immigration law system works, the difference in treatment defies common sense!

We had observed one case where the INS Officer at the port of entry turned down a person who was issued a B-1/B-2 visa after that person's family member had filed an I-130 Petition as a spouse of a green card holder. So, we try not to issue such non-immigrant visas in cases where an immigrant petition has already been filed.

Obviously, since the H-1B or the L-1 do not have any Section 214(b) issues with respect to the Dual Intent Doctrine (that is, they are not required to prove that they intend to leave the U.S. when their stay expires), the best situation would be for such a person, if eligible, to obtain a job offer and then file an H-1B or an L-1 Petition.

The Mumbai Consulate commented that their Foreign Service Nationals (local employees) are so good that they can handle an overwhelming load of work and that is one of the reasons why they are able to process so many cases so successfully.

A point to keep in mind with respect to H1Bs is that the Consulate will not wait for the H-1B package to be sent by the INS to the Consulate since they do not have a very scientific method of maintaining paperwork. It would be much faster and easier if the visa applicant came into the Consulate with all of the information for the Consular Officer to make a decision on the case. (So no cable notification from INS is needed.)