Impact of Visa Delays and 221(g) Denials on Family Members

As many people face delays and denials of their nonimmigrant visa requests at U.S. consulates and embassies abroad, questions arise as to the status of dependent family members who are in the United States. It is important, therefore, to remind MurthyDotCom and MurthyBulletin readers of the guidance provided by the U.S. Citizenship and Immigration Services (USCIS) in 2006 regarding “parking” dependent family members.

Background: Visa Delays and Denials

There are rampant problems with H1B visa applications at U.S. consulates and embassies, as some readers have experienced first hand. These problems are primarily connected to IT professionals, working in the consulting company context. Most of the inquiries we receive are from individuals who applied for visas in India, with 221(g) delays or denials. Our office has received calls regarding identical situations occurring elsewhere, as well.

As a result of these problems, many H1B workers are unable to return to the United States for extended periods of time. Some of these H1B workers left, while their spouses and, for some, minor children, remained in the U.S. in H-4 status. Thus, questions arise as to the status of the H-4 dependents if there is no H1B primary in the United States for extended periods.

Family Members Cannot be Parked in U.S.

The USCIS issued guidance pertaining to the spouses of intermittent H1B workers in 2006. The memo is discussed in our December 29, 2006 NewsBrief, Dependent Family for Intermittent Employees May be Limited.

The memo expressed the absence of USCIS approval of the practice referred to as “parking” family members in the United States. This occurs when a primary H1B spouse travels abroad extensively, leaving his/her family in the United States most of the time. The memo clarifies that routine work and personal travel are permitted while the dependent family members remain in the U.S. in dependent status, but that the purpose of the H-4 category is to provide for family unity.

H-4 and L-2 Dependents Can Stay for Reasonable Timeframe

As suggested in the December 2006 article cited above, it is best to use a common sense approach in the matter of parking dependent family members. It is reasonable for dependants to remain in the United States while the primary applicant undergoes standard visa processing procedures. However, if there are denials or extremely extended delays, it is best to fairly assess the risks of remaining in the U.S. as dependants.

In many cases, the primary spouse is outside the United States, waiting for a decision on the H1B visa application at the consulate. Often, the consulate has issued a 221(g) refusal of the H1B visa, but the refusal is not a final decision. This occurs when documents are requested via a 221(g) or when a case is under review for administrative processing. In such a situation, the U.S. employer continues to offer the position set forth in the H1B petition. In some cases, an employee is working remotely for the H1B employer while s/he waits. The H-4’s purpose in the U.S. in such a situation, is to await the return of the H1B spouse or parent.

While there is no specific guidance on this point, it would seem entirely appropriate, and consistent with the purpose of family unity, for the H-4 to wait in the United States for a reasonable amount of time, as required for the consulate to adjudicate the visa application.

Stay Permissible if Employer Seeks Reaffirmation of H1B

In other cases, the consulate has processed the visa application, and issued a 221(g) refusal, and indicated that the H1B petition will be returned to the USCIS with a request for revocation. This ends the visa application process at the consulate. However, the employer may choose to pursue the reaffirmation of the H1B petition approval. The presence of the dependent spouse in the U.S., during a time when the primary spouse is abroad again raises possible status questions. Arguably, the family unity purpose is still ongoing, if the job offer is still available, and the employer is working to bring the individual back to the United States.

Gray Areas

There are many gray areas within the various factual situations that arise for H1Bs who are stuck abroad and H-4s who await their return. H-4 status is not company specific. It is based on being the spouse or child of an H1B principal. Thus, another situation that occurs is when the H1B primary is unable to obtain an H1B visa through company A, but pursues the H1B visa with company B, in order to return to the U.S. and rejoin her or his family. It may be difficult or impractical for the H-4 family members to leave the United States during what could be months of the H1B primary’s efforts to return to them and to work with the employer. This can be particularly true for families that include school-aged children.

Emerging Trend of H1B Visa Delays

The existence of H-4 family members in the United States for long periods of time without the H1B primary family member was fairly rare prior to the recent patterns of 221(g) visa refusals. As it becomes more common, H-4s should ask themselves whether their purpose for being in the United States is family unity or whether they may have crossed over into the impermissible situation of being “parked” in the United States. Is their presence no longer connected to the expectation of the H1B family member’s return to the U.S.?

Conclusion

Given the extended delays experienced by many at the consulate, the reasonable timeframes for H-4s waiting in the United States, arguably, may be quite long. Such H-4 family members need to be prepared, however, to make viable arguments if there are questions regarding valid legal status.

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