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Report
from Attorney Murthy : Meeting with Consular Leadership
(Chennai, India - March 2006)
Posted
Mar 24, 2006
©MurthyDotCom
I had the distinct honor and pleasure of meeting with the leadership of the
U.S. consular section at Chennai, India on March 9, 2006. This insightful
meeting covered a wide range topics such as the
issuance of visas, reasons for visa delays and/or denials, and overcoming
common visa problems. This article focuses on the nonimmigrant visa matters
that were discussed. It is relevant to any candidate applying for a visa
from any consular post, but should prove particularly helpful to those applying at
the U.S. Consulate in Chennai, India.
©MurthyDotCom
The meetings with various members of the Consular team lasted for more than
two hours, which reflects their openness to input and ideas.
I thank those with whom I met for
the gracious generosity of their valuable time and information. The
Chennai Consular team is comprised of Mark Fry, Chief of the Consular
Section; Peter Hancon, Chief of the Nonimmigrant Section; Tyler Mason, Chief
of the Immigrant Visa Section; and Miguel Ordonez, Chief of the Anti-Fraud
Unit (AFU). Mr. Ordonez is also the supervisor of AFU operations for all of
India.
©MurthyDotCom
Advice from the Chief of Consular Section
©MurthyDotCom
In order for employers to increase their current and prospective employees’
likelihood of obtaining nonimmigrant visas at the Consulate at Chennai,
India, the visa applicants and the employers must follow certain guidelines.
Mark Fry, Chief of the Consular Section, shared this advice:
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The employer must
hire a clearly qualified candidate. For an H1B for a programmer, for
example, a candidate must possess the required degree in the field of
computer science, electrical engineering, electronics, or a related
field. A degree in an unrelated field could result in delays, since work
experience and/or diplomas, in such an instance, would need to be
evaluated as equivalent to the baccalaureate degree in the required
field.
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The employer must
submit evidence of a bona fide job offer. A history of
failing to pay the required wage to previous H1B visa employees, for
example, will result in a problem.
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During the visa
interview, the candidate should remember that fabrication of evidence,
such as degrees and prior work experience, could result in a lifetime
fraud / misrepresentation bar on entry to the U.S. Applicants should
avoid the temptation to fabricate education or prior work experience. In
many cases where the candidate has the required four-year degree in the
area of intended employment, work experience is not required for an H1B
visa.
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Fundamental
knowledge of the subject area in which the candidate will work in the
U.S. is essential. If a visa applicant is not familiar with basic terms
dealing with the particular occupation or profession, for example, the
visa will not be issued. The Consular official is likely to return the
case to the USCIS for revocation. This revocation could be based on the
candidate having committed fraud regarding the education, work
experience, or immediate ability to perform the job duties upon entry to
the U.S.
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Ability to converse
in fluent English. This requirement is considered fundamental to almost
any professional position in the U.S. A candidate who is not able to
speak English usually cannot perform the job, as most professional
positions in the U.S. require communication in English.
Anti-Fraud Issues in Applying for Visas
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Mr. Ordonez, as the Chief of the AFU, summarized the problems commonly
encountered by his team that may result in delays or denials of the visa as:
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Submission of fake
degrees or diplomas
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Inability to speak
in English and communicate information during the visa interview
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Behavior during the
visa interview that gives rise to suspicion that some information is
being withheld
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Inability to exhibit
an understanding of the work being offered in the U.S.
(The visa applicant must understand the nature of the job to be
performed or of the work project.)
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Submission of
photographs for dependents that are of individuals other than the
dependents
(This may result in a notation of fraud in the file and a temporary or
permanent bar on entry to the U.S.)
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Behavior during the
visa interview that is the result of obvious coaching
(Providing answers that are too similar to those of other applicants
undermines one's credibility. We would note that it is acceptable to
obtain advice on how to address issues at the consulate. One's
responses, however, must be accurate and in the applicant's own words.)
End-User Client Letters for Consulting Companies
©MurthyDotCom
I discussed the matter of the Consular section requiring end-user client
letters. Many H1B employers and employees, as well as several AILA
attorneys, have approached me as well as the Murthy Law Firm, inquiring
about this. The matter deals with the fairly recent requests for letters
from supervisors of the end-user clients. These requests require the end
users to outline the nature of the job to be performed by the H1B visa
candidate, provide details of where the candidate will work, the length of
the project, and the need for a specific H1B employee by name and other
details. Unfortunately, most end-user clients are not willing to comply with
such an onerous request. The very reason for the end-user client to hire an
outside consulting company is to minimize the burden of administrative or HR
responsibilities. Moreover, the law does not require such detailed letters
for the issuance of H1B visas.
©MurthyDotCom
I respectfully summarized the position of many of you, our clients or those
using candidates who apply for the H1B visa at Chennai, as follows.
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End-user clients
generally will not issue letters to the consulate, as they do not wish
to get involved with the H1B process. The very nature of the employment
relationship, when hiring through consulting companies, is to avoid or
minimize the work related to hiring candidates.
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Employers who sign
the H1B documents do so under penalty of perjury and must pay the
required prevailing wage, irrespective of whether they have assignments
for the H1B candidates. The employer may decide to send the candidate
back to his/her home country if enough assignments cannot be found.
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Legacy INS (now
USCIS) raised many similar issues, in the early- to mid-1990s, regarding
the length and nature of the projects in the U.S., timetable of
assignments, and the H1B employer’s ability to pay the required
prevailing wage. Senior Legacy INS officials from headquarters in
Washington DC addressed the concerns of those examiners by pointing out
that the law does not permit them to investigate a U.S. employer’s
ability to hire H1B employees. The USCIS is bound by memos and policy
guidance of the Legacy INS. After that memo, Legacy INS stopped issuing
lengthy RFEs on these matters.
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The law does not
require any such letters by end-user clients for the issuance of the H1B
visas to the visa applicants.
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Delays in the
issuance of H1B visas cause many of the employers considerable financial
loss and postpone the implementation of projects. This results in the
additional loss of revenues and credibility with their clients, due to
their inability to produce in a timely fashion the required specialty-worker candidates.
Consular Chief Fry
explained that the goal of the U.S. Consular team is to implement the law
and protect both the U.S. employers, in getting the appropriate candidates
whom they intend to hire, and in guarding the prospective employees against
being taken advantage of by unscrupulous employers who would violate the
law, failing to pay these employees the required prevailing wage.
©MurthyDotCom
Mr. Fry generously and kindly agreed to consider the arguments submitted. He
noted that, if the consular team was wrong in their understanding of the
law, the policy, or its implementation, they would be willing to change
or modify their policies and admit their error.
©MurthyDotCom
Summary
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Overall, the meeting was very productive, with an open exchange of ideas.
The candor of Mr. Fry and the entire Consular team shows their receptiveness
to suggestions to improve the process for the benefit of all concerned. In
the ultimate analysis, we are all seeking to do that which is right; namely,
to help U.S. businesses obtain the qualified workers that they need and that
Congress has authorized by establishing the H1B program.
©MurthyDotCom
We appreciate the time, generosity, and commitment of the entire Consular
team at Chennai, India, especially considering their hectic schedules at the world’s
busiest H1B visa processing center.
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