221(g) Visa Denials at Consulates Abroad
Posted May 18, 2007
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U.S. consulates abroad have been known to deny visas based upon Immigration and Nationality Act (INA) Section 221(g) even after the United States Citizenship and Immigration Services (USCIS) has approved a petition for the visa application. Some nonimmigrant categories require USCIS approval of a petition before one may apply for a visa at the consulate. Included are categories such as H, K, L, O, and P petitions. Nonimmigrant cases that do not require prior petitions under current law are the B, F, J, and R categories. Virtually all of the immigrant visa categories require an approved petition from the USCIS before an immigrant visa may be granted. For the benefit of MurthyDotCom and MurthyBulletin readers, we have outlined common 221(g) denials and ways that our firm plans to address this matter; hopefully finding satisfactory resolution.
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Refusals under Section 221(g)
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Periodically, 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 INA Section 221(g). When they do so, they also request that the USCIS revoke the petition that was approved earlier.
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The USCIS has the primary authority to determine whether or not a person meets the requirements for particular, petition-based visa classification. Consular officers may, in limited circumstances, reach a different conclusion and request that the USCIS reconsider its original approval of a petition. Essentially, what is happening is that the USCIS has said "yes," when the consulate thinks that they should have said "no." So, the consulate says "no" to the visa and sends the approved petition back to the USCIS with a request for revocation, based on their findings.
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Common 221(g) Visa Denials
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This type of situation occurs most often in connection with nonimmigrant visa applications for temporary worker classifications and for fiancé/es applying for visas abroad. What can happen is that new, negative information can come to light at the time of the interview. More specifically, the interviewing consular officer may conclude that the visa applicant either does not appear to meet the requirements for a temporary worker classification or, in the case of a fiancé/e, does not appear to have a bona fide relationship with the petitioning U.S. citizen. We touched on some of the issues of concern in our March 24, 2006 article, Report from Attorney Murthy: Meeting with Consular Leadership (Chennai, India - March 2006), available on MurthyDotCom. A particularly disturbing trend at certain consulates in some countries, including India, uses this provision liberally. We at the Murthy Law firm are making efforts to address this in a comprehensive fashion.
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USCIS has Primary Authority over Petition Approvals
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As indicated, in every visa issuance case that requires an approval of a petition, that petition has to be initially sent to the USCIS. The USCIS has the primary responsibility to make decisions in such cases, under law.
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DOS / Consular Authority to Revoke must be Used "Sparingly"
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The Department of State (DOS) issued guidance to its consular officers abroad in 2001 to clarify their role in connection with the adjudication of petition-based visas. This memorandum reminds consular officers that the revocation process should only be used "sparingly," and that consular officers should not attempt to re-adjudicate (i.e., reevaluate) petitions.
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Furthermore, the guidance states that consular officers should only seek revocation of a petition if they know, or have reason to believe, that the petition approval was obtained through fraud, misrepresentation, or other unlawful means; or that the beneficiary is not entitled to the status conferred by the petition. The guidance also cautions that a petition should not be returned unless the officer uncovers new information that was not available to the USCIS at the time of that petition's approval. Thus, the consular officers abroad are not supposed to second guess the USCIS's assessment of the sufficiency or content of evidence provided. For example, a consular officer is not supposed to re-think the question of whether an applicant with an engineering degree is qualified for a position as an IT professional in an H1B case. That is a USCIS decision. S/he could refuse the visa, however, if it is discovered that the degree submitted is a forgery or that the individual does not actually possess the claimed experience required for the approval or other required qualifications.
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Consular officers are, under official DOS policy, limited in the application of the revocation request process for petition-based visas, therefore, which prevents a duplication of efforts by the USCIS and the DOS. When the consular officer chooses to request revocation of the approved petition, the revocation process is lengthy and burdensome. It is widely known that returning a petition with a request for revocation often effectively destroys the petition. This is particularly so in the case of a petition for a temporary worker, since the employer cannot always hold the job open for years, until the matter is sorted out.
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Petition Revocation Process is Lengthy and Expensive
To begin the revocation process, the consular officer must forward the petition and revocation request to the U.S. Department of State's Kentucky Consular Center. From there, it is processed and returned to the USCIS service center that originally approved the petition. The USCIS then reevaluates the petition's approval and either reaffirms the petition and returns it to the DOS or, in many cases, issues a Notice of Intent to Revoke (NOIR) to the petitioner. The petitioner is given 30 days to respond to the NOIR with additional evidence.
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This process can take anywhere from several months to over a year or two in some cases! Accordingly, by the time a NOIR is issued by the USCIS to the employer / petitioner, the petition itself may only have less than half of its original validity remaining. Furthermore, in the case of a petition for a temporary worker, neither the employer nor the employee is usually able to wait for the case to be resolved. It is expensive to respond and the loss of time and money is onerous on the parties. Consequently, most petitions are abandoned by the time a NOIR is issued.
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In the unlikely event that a petitioner decides to respond to a NOIR and is successful in having the petition reaffirmed, the original consular officer has likely already moved on to her/his next rotation or assignment. The original consular officer will not learn that his/her decision has been overridden. Thus, although the DOS guidance exists, there does not appear to be sufficient oversight on petition revocations. This procedure often sends the cases into a bureaucratic black hole, with little chance of ever emerging again.
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The Murthy Law Firm Takes Action
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A disturbing trend of 221(g) denials that are not in compliance with the official policy has not gone unnoticed by the Murthy Law Firm. This has been long-standing, but has increased lately. In the past, we addressed issues of improper policy or application of legal rules directly with the consulate, either on a case-by-case basis or in a more comprehensive fashion. We succeeded in having problems in individual cases addressed, and changes in some areas have resulted. We determined, however, that the problem of 221(g) denials contrary to stated DOS policy needed further action.
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In order to start to remedy this problem, the Murthy Law Firm drafted a legal brief and submitted it for an advisory opinion to the DOS's Visa Office. The brief requests a review of the adjudication practices and procedures at the consulates in India with regard to H1B visa applications. We have also requested that the Visa Office reiterate its guidance to the consular posts, if necessary. We outlined some particularly egregious examples where the post was using 221(g) in a manner that did not comply with the stated policy of not re-adjudicating approved petitions and not requesting proof that was previously available to USCIS.
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Conclusion
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We at the Murthy Law Firm would like to state that we are grateful to the U.S. consulates in India for their cooperative spirit. In particular, we have worked closely with officials at the U.S. Consulate in Chennai over the years to understand their methods and limitations, and to solve problems for many of our clients. We will follow up and pursue this matter with all concerned parties. It is our belief that all will work together to find an agreeable resolution, so that the intent of Congress is executed and there is effective and fair implementation of our immigration laws and regulations.
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