December 23, 2014
The process of employment based non-immigrant visa stamping before a US Consulate abroad has experienced a revolutionary change–both procedurally and systematically–in the past decade by the US Department of State (“DOS”). These changes continue to evolve on an ongoing basis to improve security background measures and cross agency sharing of information. Such measures have caused consular processing to become more complex, and in some cases, time consuming. But on a positive note, the nonimmigrant visa application process itself has taken on a digital format. This digital format has streamlined the application process and caused an expeditious scheduling of the visa stamping interview. The DOS stated that its digital application process will enhance US national security and cause better cross agency communication. On another note, however, the revamped nonimmigrant visa application process and concerns for national security have caused a heightened consular practice and the issuance of letters of visa rejection pursuant to Immigration and Nationality Act (INA) section 221(g). In addition, some consular processes have exhibited heightened scrutiny of visa applications (especially in the H-1B and L-1 employment visa areas) which in some cases resulted in the consulate’s return of the underlying visa petition to the US Citizenship & Immigration Service (“USCIS’) with a request for revocation of the approved petition itself. In other cases, the visa application resulted in the launching of investigation by the USCIS field offices, or by the consulate itself.
What is a 221(g) Letter and What does it Mean?
When a non-immigrant avails herself to a consular stamping process, the US Consulate reviews the application and any other information available on the DOS intranet. Incidentally, that is the reason why our law firm always posts an additional copy of any nonimmigrant visa petition and any other responses to the Kentucky service Center for uploading on the DOS intranet. If the consular officer is not satisfied that she has everything in place to issue a visa, she is required by regulations to issue a letter explaining the reason for the denial, which invariably mirrors the language set forth in INA 221(g). The 221(g) refusal letter could also include a laundry list of documents that the consulate needs to make a final decision on the visa application. It is important to note that the applicant has one year to respond to the 221(g) letter with documents or information within one year from its issuance. Otherwise, the application will be deemed abandoned. In most cases, the visa applicant can submit the required information or documentation to the consulate by email.
What Happens if My Visa Petition is Being Requested to be Revoked by the Consulate?
One of the most devastating things for a foreign national is if the consular officer returns the visa petition to the USCIS with a request for revocation. This usually happens when the consulate feels that there was a mistake in the petition which the USCIS had not picked up on during the adjudication process. In such a situation, the foreign national applicant is not told that the petition is being returned for revocation. Normally, the petitioning employer receives a letter from the USCIS called a “Notice of Intent to Revoke” (NOIR). Unfortunately, months could pass between the consular interview and the receipt of the NOIR. Many foreign nationals lose their employment prospect in such situations, as many employers are not willing to wait out such long periods.
When a NOIR is issued, the employer is provided thirty (30) days to respond with evidence to overcome the attempt to revoke the approved petition. The bases for a NOIR could be simple or could be very complex requiring competent legal representation. Once the response to the NOIR is received by the USCIS it could be several more months before a decision is made. If the decision is favorable, the USCIS will send a letter to the consulate with instructions to issue the visa. If the visa is revoked, the employer has the ability to file an appeal to the revocation with the Administrative Appeals Office (“AAO”) or to file a motion with the USCIS to reopen or reconsider. The employer can also seek a judicial review of the decision in federal courts.
What Happens if My Employer is Investigated?
If, during the visa application or interview process, the US Consular officer has doubts about some of the statements or documentation made in the underlying employment based visa petition, the consulate could undertake one of many several actions. The consulate could begin its own investigation by contacting local agencies, universities, employers, etc. to validate one or more statements made by the employer or applicant during the visa interview, or to validate a document attached to the visa petition. An example of that is a college diploma. The US Consulate could contact the local university where the diploma was allegedly issued to ascertain whether it was authentic. Another example is that the US consulate could contact the USCIS to request an onsite visit to the employer’s premises to validate the number of employees or services offered by the employer as stated in the underlying petition. Such visits are normally unannounced and could be very disruptive to the employer’s business.
These investigative efforts could take up to a year in some cases to be completed. If the result of the investigation is favorable, the US Consulate will issue the visa. But if it determines that the investigation uncovered fraud or misrepresentation in the visa petition by the US employer, it will then return the visa petition to the USCIS for revocation. It could also request that the US Solicitor’s office launch additional investigations for possible sanctions. But if the investigation resulted in the finding of fraud on the part of the foreign national, it will deny the visa application with a finding of visa inadmissibility due to fraud or misrepresentation. Such a finding could have serious implications on the foreign national’s ability to procure future entry into the US.
What Happens if My Visa Application is Denied?
There are numerous reasons why an employment based non-immigrant visa stamping application may be denied. Included are the following: (1) a finding by the consular officer that the applicant is not eligible for the visa requested, (2) an abandonment of the visa application by the applicant after a 221(g) letter is not properly or timely responded to, (3) because the underlying petition was withdrawn or revoked by the USCIS, or (4) because the US consulate determined that there was fraud or misrepresentation by the employer or foreign national in the underlying petition itself or in the interview process. Immigration lawyers understand that the decision of the US Consulate in most situations is absolute. That is to say, their decision may not be legally appealed. Unfortunately, too often, visa denials are the result of a consular officer’s mistake or inexperience. The good news is that in some instances, the visa applicant can renew her visa application again if the denial’s reasons are not serious in nature. Even if the denial was on serious grounds, the foreign national or ultimate employer may seek review of the denial by the Chief Consular Officer at the Consulate or by requesting an Advisory Opinion at the US Visa Office in Washington, DC. Such processes rarely lead to favorable results, however competent immigration lawyers can advise when such measures could be fruitful.