This is a very important topic, one that is especially important to Indians working at consulting companies who have to go back to India to seek an H1B visa. This is about 221g in the immigration and nationally act (INA 221g). Basically 221g is a regulation that gives consular officers the authority to, in effect reopen and reinvestigate the underlying case to see if the person is actually eligible
to use to get a visa to come to the United States even after United States citizenship and immigration service (USCIS) has approved the case. There’s actually a 2001 Department of State guidance that tells consulate officers to only use 221g sparingly and it advises them not to abuse to 221g so that they can just re-adjudicate cases, but that’s exactly what’s happening right now and it’s wrong and it’s going over the authority of USCIS.
But we can complain all we want, but we can’t just admire the problem, we have to discuss the problem honestly. So what happens is, someone who is working as a consultant will go to an Indian consulate and apply for a visa and then the consulate officer interviewing them will say: “well, you know what, I still have some doubts that there is an actual position and that you have an actual job at this company, so I’m going to do something, I’m going to put your case under investigation under additional administrative processing.” Basically it’s an investigation. They ask for pieces of evidence even if the evidence was already submitted. Generally they want an end client letter and they want contracts that verify employment, but this is almost insidious, it’s like a catch-22, it’s cruel you could say you. Ask to put a consultant’s case on hold for several weeks, and then ask them to get more things, and the end client may have to put the whole project on hold, and the job could be jeopardized if they have to waste several weeks. The end client might not even be interested in getting them back aboard if they have to go through administrator processing delays, so the consultant will want to keep it secret from the client sometimes. But anyway we have to talk about solutions for the issue at hand. So in one example, I can tell you about one of our clients who is a consultant. She was rejected under 221g and re-submitted all the evidence they needed but, they still rejected the case so it seems that they might have a blanket policy against consultants.
But I do not want to scare people either, it’s just that it happens sometimes and it’s risky especially since the beginning of 2011. So they rejected the case and what they do is send it back to USCIS so that they have an opportunity to address any of the issues that the consulate has come up with. We don’t want to deal with that because it take such a long time and the person is needed now to come back to the United States. So the solution that we came up is – while we could have filed an amended petition – that is not necessarily good idea because doing an amended petition, the consulate can still say that the original case has gone back and it’s under still under processing with USCIS. So instead, what we did was we filed a case fresh with all the case documents and acknowledge that (even though we don’t believe that this is true) the original petition didn’t have enough evidence and would provide more evidence such as e-mail correspondences, nametags all kinds of other things that you can think of, and the case was approved, and thankfully it worked and we got the person back here on the project just in the nick of time. So that’s the solution we have when this problem rears its ugly head.
So basically, re-filing on premium to try to get them back. But my general guidance for people who have to go back for visa stamping (who work for consulting companies) is, unless you really absolutely have to go back to India, do not do it. And if you have a degree in Canada or the United States what you can do is you can apply for an H1B visa, even if you’re an Indian, in Canada or Mexico, so keep that in mind.
Now this is a problem of course, it’s not right, and we have the American Immigration Lawyers Association, AILA, liaisons who can work to find out what’s going on the consulates. Because, you should understand that what the consulate officers are doing, is they’re just following orders, they’re not really necessarily the ones who make the policies, so we have to know if there’s some new policy that has been circulating amongst the consulates in India, we have to realize if they’re doing something wrong, and it’s clear that they’re not using their discretion properly.
I have to say not all the officers are blameless because there are some officers who are downright unfair and even exposed as racist. I don’t want to generalize but there is in fact a story about the vice counsel at one of the US consulates at Chennai India, her name and I want to expose this actually, her name is Ms. Chao, she’s actually she has just has an Asian last name but she’s not Asian, but anyway, Maureen Chao was her name. Let me read this, this is amazing. Vice counsel Chao is recounting her trip to India over two decades ago while speaking at an orientation on Friday for students at SRI University who are heading for assist semester abroad, she said this: I was on a 24-hour trip on a train from Delhi to Orissa, but after 72 hours the train still didn’t reach the destination due to some strike an earlier due to a roadblock by some cows and camels at the end my skin became dark dirty and dark like the to Tamilians. I’m not kidding; this is what the article says! This is the kind of racist comment that needs to be exposed them condemned. Hopefully this is not typical, but I just wanted to bring that out.
Another thing that I want to mention this is actually one last issue that I wanted to go over is I did have a recent consultation with a company and owner of a consulting company and he told me about a problem that he had with consultant who is applying for a visa at the consulate and it was put under 221g, and it was also denied and he decided to wait it out rather than re-file, and what happened was he got the notice of USCIS’s notice of intent to revoke and it said that in the original petition, whatever the location the guy is working at now, is not found in the original petition, therefore they are denying it it’s not in the original LCA in the petition. So what happened is the employee moved to a new location and they did what was proper which is to file a new LCA but they didn’t necessarily file a petition. This is acceptable, you don’t have to do an amended petition unless there’s a material change and if the job is still the same, and the location is only changed, all you have to do is file and LCA, but this decision this denial is basically hinting that you might even have to do an amended petition for every single location transfer, which is going to be really inconvenient and really unfair for consulting companies because people do move after about like a year or so and it’s costly. But I just wanted to let that out and let people know that maybe an amended petition is the solutions in these cases.
A fiction on INA 221g – Watch the Movie