Often we are contacted by H1-B petitioner(s) and/or H1-B visa applicants / beneficiaries with the H1-B petition being sent back to the USCIS for possible revocation. In this article we explore the options available to the petitioner / beneficiary under this circumstance and precautions to avoid this situation.
General Procedure:
When one applies for his / her H1-B visa at the U.S. consulate abroad, in general, the visa officer either approves the application if the officer believes that that all the required criteria is met or the officer may place the application pending under administrative process or may request for additional documentation / information for further processing under Section 221(g) of the Immigration and Nationality Act.
If the officer is not convinced that the petitioner has a “qualified employment” in the United States, based on information provided at the interview and review of the documents presented either at the time of visa interview or later in response to the request for information under Section 221(g) of the Immigration and Nationality Act, the officer may send the H1-B petition back to the USCIS for a review and possible revocation.
Handling the INA 221(g) request:
It is important for the Petitioner and Beneficiary to ensure that all relevant documentation and information is available and presented clearly either at the time of interview or in response to the request for documents under Section 221(g) of the Immigration and Nationality Act.
Confidential and Sensitive Documents:
Often, H1-B petitioner / employers hesitate to submit some of the documents commonly requested by the consulate on account of the sensitive nature of the same. For example the petitioner may hesitate to share the income tax returns or the quarterly unemployment wage report which has the social security number of all the employees or detailed list of all the employees with their salary information for confidentiality reasons. In such instances, some Petitioner(s) respond to the INA 221(g) request without including the sensitive documents. This could potentially end in application being refused under INA 221(g) and the file being sent back to the USCIS.
Our office contacted the Embassy of the United States of America in New Delhi regarding this issue and in response Mr. Josh Glazeroff, Visa Chief, Embassy of the United States of America, Consular Section, New Delhi confirmed that the Post’s entry in the American Immigration Lawyer’s Association’s Visa Processing Guide holds good. Here it is mentioned that, when a company has confidentiality concerns, they can send the documents to the post directly. While submitting the documents directly, the petitioner must mention the following information: (i) Beneficiary’s full name; (ii) Date of birth of the beneficiary; (iii) Place of birth; (iv) Type of visa sought; (v) Date of interview and (vi) the USCIS petition receipt number.
Post submission of Documents:
If after review the Officer is satisfied that all the criteria for issuance of visa are met, the visa will be issued. If the Officer is not convinced of the existence of a qualified employment, then the file is sent back to the USCIS with their findings at the interview along with reasons they believe this case should not be approved.
Options available if a letter is issued stating that the file is sent back to the USCIS:
Often the first question the petitioner / beneficiary would have upon receipt of the letter indicating the file is sent back to the USCIS, would be – “Is there a way, we can submit additional information to the U.S. Consulate or Embassy?” We did check with Mr. Josh Glazeroff and he clarified in such situations, the file is sent to the Kentucky Consular Center in the United States and from there, the file will be routed to the approving USCIS office and nothing can be done at the Consular end. It is all the more important that we respond to the INA 221(g) request with as much information and unambiguous cover letter as possible.
Options When File is Sent Back:
The employer may wait for the USCIS to send them a “Notice of Intent to Revoke” – this could take from a few weeks to several months. The petitioner / employer will have 33 days to respond to the Notice of Intent to Revoke. If they are able to successfully defend, then the file will be sent to the Consulate for issuance of visa. This may be the ideal way to take up the matter; however, there is uncertainty on the time frame.
In some circumstances, the petitioner / employer may be able to file either an amendment and have the approval re-affirmed or file a new petition and once the new petition is approved, the possibility of successful application at a consulate may be enhanced. The options available may vary on a case to case basis and if you are in this situation, you should consult with a qualified and experienced immigration attorney. If you do not have an Attorney already, you may contact Attorneys at the Murthy Law Firm in the U.S. for possible options pursuing this with the USCIS.
From the Beneficiary’s perspective, such refusal does not restrict him/her from applying for another H1-B through a different petitioner / employer. However, the contractual obligations with the petitioner / employer who originally filed for the H1-B has to be looked into.
Conclusion:
It is important that the petitioner / employer is aware that the primary reason for the Consular officers requesting for additional documents is to ensure availability of a qualifying job in the U.S. and that all eligibility criteria are met. They must submit all the documents at one instance and it is usually good to include a clear cover letter addressing all issues. When confidentiality of the documents is a concern, they may follow the procedure indicated above. We at Murthy Immigration Services Private Limited have helped several petitioners successfully respond to the INA 221(g) request.
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