By Attorney Jim Gotcher
Global Immigration Partners
When a visa applicant goes to an interview at the consulate, they are asked a series of questions by the visa officer regarding the terms of their H1b and they are asked to provide certain documentation. When the visa officer feels that the information contained in the PIMS copy (which is a copy of the H1b filing that was sent to the USCIS) is inconsistent with the information or documentation provided by the visa applicant, they will likely issue a 221(g), which is similar to a Request for Evidence with the USCIS. A 221(g) is a soft denial of your visa application and can be overcome through various manners. The 221(g) will sometimes provide information on it, which assists the applicant in replying to it. For example, some will say that the visa officer would like to review the petitioning company’s payroll records, employee roster, tax returns, or other highly-sensitive and private company information. Other times, they will ask for client letters or project documentation or education documents from the applicant or they may simply put “administrative processing” on it. In the cases where the officer has requested documents, the application is supposed to be reviewed once those documents are provided. In the cases of administrative processing, it is hard to say what they are doing as it could include a background check on the applicant, a fraud check on the documentation or simply they are waiting for the PIMS copy to arrive to verify the information from the interview. Unfortunately, they will not provide you with any feedback or information regarding their actions and you are often times left to guess about what has happened. Once the visa officer has made up their mind, which in some instances can take months or even a year, they will either issue the visa or send a letter that contains a hard denial. This letter is supposed to provide details regarding the denial, but the letter will simply state that the employer was either unwilling or unable to provide qualified employment for the applicant. The visa officer will then send the file back to the USCIS for revocation. We have found that the time period for the return can vary as they have done this within a week in some instances and six months in other instances. The USCIS will then either affirm the case, reverse on the case and deny it or they will issue a Notice of Intent to Deny to the employer and allow them to explain any discrepancies that came up in the visa interview. If the USCIS affirms the case, it is not a guarantee that the visa will be issued. Often times, this process can take up to a year and the applicant has either lost his or her job or their project and they cannot provide the documentation for the visa interview, which again will lead to a denial or 221(g). Further, any inquiries made by Congressmen are typically met with boiler plate responses which do not provide insight into the matter nor do they seem to speed the process along.
We had an inquiry recently where a gentlemen was issued a 221(g) in April 2011 and then received a denial notice in July which was dated May 1, 2011. The USCIS reaffirmed his case and returned it to the consulate and he went back in the for another interview. Again, he was issued a 221(g) and was eventually denied the visa and the case was sent back to the USCIS. The USCIS once again affirmed the case and the applicant returned for another visa interview and again was issued a 221(g) and again, was denied the visa and again the USCIS affirmed the case. The applicant returned for a fourth visa interview and the visa officer requested his passport, but did not provide him with any information regarding a timeline nor did they provide him with any receipt to follow up with. A few months later, he inquired about the case and was told it was denied again. While this is one of the worst stories I have seen, it serves as an example as to what can happen if you get stuck in this cycle.
So what exactly can trigger a 221(g)?
No PIMS copy: When an H1b is filed with the USCIS, it is important that whomever files the petition must include an extra copy of the petition (PIMS copy) so that the USCIS can send that copy to the Kentucky Consular Center (KCC). The KCC will store the PIMS copy and will provide it to the consulate once the H1b holder makes a visa appointment. Often times, people are concerned that the I-129 states a different consulate than the one they will attend, but with PIMS, any consulate in the world can receive a copy of the H1b filing for the interview via PDF from the KCC. When the PIMS copy is not sent to the USCIS, then it can lead to a delay at the visa interview and this will result in a 221(g). Further, there is no way to confirm with the consulate whether they have received the PIMS copy.
Worksite/Client is different than worksite/client listed on the I-129: The consulates have been denying cases where the worksite or client that the visa applicant states they are working at is different than the worksite or client listed in the PIMS copy. This may lead to an immediate denial or they may issue a 221(g) which will eventually lead to a 221(g).
Inconsistent responses in the visa interview: It seems as though the visa officers want to quiz the visa applicant by comparing what was said in the H1b filing versus what the applicant says they are doing. When they find inconsistencies, they will issue a 221(g) to see what the real story is. It is important for applicants to review their filings prior to the visa interview, especially when the filing may be a few years old as the visa officers seem to believe that a person’s job should not or cannot change, even slightly over the validity period of the H1b.
Visa interview responses were incorrect: The State Department has interpreted theEmployer/employee memo in their own way and it often time conflicts with the USCIS interpretation of the memo as evidenced by the number of USCIS approvals which lead to visa denials. Until this issue is resolved, a visa applicant must understand that the State Depart-ment has a very strict interpretation of the memo and that their use of terms are different than those used by the industry and the USCIS. For example, with consultants, the visa officer will ask “who assigns you work?” This is a very simple answer as the employer always assigns work to the employee, but that question is usually followed up by “What does your client manager do?” If the applicant response includes the words “assigns” or “provides” or “supervises,” the visa officer will either deny the application or issue a 221(g). So for example, if the applicant says that the project manager assigns daily tasks, which the applicant likely means to say is that the PM will schedule the tasks for the day, the visa officer will say that the PM is assigning work and is, therefore, the employer. We have also seen where the visa officer will ask about the amount of supervision that the employer exhibits for the applicant and if the interval is too far apart, this will lead to either a denial or 221(g).
H1b is filed for same project after receiving 221(g) with a different employer: We have seen that where a visa applicant is either issued a 221(g) or has received a hard denial on their visa application and then they re-file with a different employer, but for the same project, the visa officer will issue a 221(g) as they feel that nothing has changed from the first interview except for the employer despite any changes that may have occurred by eliminating a vendor or party.
Company’s record raises red flag with officer: During the interview, the officer will access their database regarding the employer and if there is negative information re-garding the employer, this could trigger a 221(g) as well. Unfortunately, there is really no way for the applicant to know whether the employer’s record has negative information in it so it is important to pick an employer that seem reputable. Please note that the size or how old the company is, does not really seem to cause problems as the newer companies do not have blemishes on their records.
How do I avoid a 221(g)?
Good question and there is no simple answer. We suggest reviewing the documentation that was filed on your behalf with the USCIS. If your petition is no longer accurate, you may need to amend the petition with the USCIS before applying for a visa. If your worksite or client has changed, it might be a good idea to amend before going to a visa interview as this seems to be a consistent cause for denials.
It is equally important to consult with your attorney as well to find out if there have been any recent changes or problems that they have encountered with other clients applying abroad. Things are constantly changing overseas and it is important to speak with someone who receives feedback on visa interviews.
Finally, it is important that the applicant is prepared and organized. You will have five minutes to state your case and the consular officers do not like to wait while you locate documents as they have a long line behind you. You should keep everything in a well-organized fashion, which will allow you to locate any document they may ask for. The best advice I can provide is that if you want to avoid this, take it seriously and be prepared!