Murthy Success Story: H-4 Visa Issuance Successful at Consulate

The Murthy Law Firm is pleased to report that our recent success in overcoming an improper refusal of an H-4 visa at a U.S. consular post abroad. The visa issuance and the successful result in this case allowed a long-separated family to reunite in the United States. The issues faced at the U.S. consulate and our efforts to address the improper refusal are explained here for the benefit of our readers. As always, the Murthy Law Firm never reveals the identity of any client or the specifics of any case without written consent from our clients. We appreciate the willingness of the clients in this case to share their story with MurthyDotCom and MurthyBulletin readers to help others who are suffering due to improper H1B or H-4 visa refusals at U.S. consulates around the world.

Background

The couple in this case met in the United States. At the time of their meeting, the future husband held H1B status. His future wife was present in the United States in B-2 visitor status. The relationship developed, with the future wife spending the full six-month period granted by U.S. Customs and Border Protection (CBP) and departing, as required, before her I-94 card expired.

The future wife went to her home country briefly, and then returned to the United States using her multiple-entry B-1/B-2 visa to gain entry to spend another six-month period with her future husband. She departed again, as required. When she attempted to enter the United States for another such visit, her travel pattern raised questions with the CBP at the U.S. port of entry (POE) and her entry was denied. The couple continued their long-distance relationship with the future husband making regular trips to spend time with his future wife outside of the United States.

H-4 Visas Denied: Murthy Law Firm Contacted

The couple made the decision to marry, with the intention of living together in the United States. Following their marriage, the couple was soon expecting their first child. Once the child arrived, they made preparations to apply for H-4 visas for the wife and baby. Unfortunately, the visa applications requesting H-4 visas for the wife and the baby daughter were denied at the U.S. consulate. The couple contacted the Murthy Law Firm for assistance. This case was assigned to our Special Projects Department, as part of our regular representation of clients who have had visas denied or unduly delayed at consulates abroad.

Improper Denial: § 214(b) Not Applicable to Dual Intent Category

Our review of the case quickly indicated that there was a mistake in the H-4 visa denials. The U.S. consulate referenced Immigration and Nationality Act (INA) Section 214(b) as the basis for the denial. This particular section of law refers to a presumed intention to immigrate that must be overcome in order to qualify for most nonimmigrant (temporary) visa categories. However, as explained below, this section does not apply to H1B or H-4 applicants. A discussion of § 214(b) can be found on MurthyDotCom in our news article, DOS Cable on 214(b) Presumption of Immigrant Intent (29.Apr.2005). This particular case did not involve a U.S. consulate in India. The consulates in India process many H1B and H-4 visa applications and are generally well-informed regarding the concept of dual intent.

H1B/H-4 and L-1/L-2 Enjoy Dual Intent under the Law

Unlike most other nonimmigrant categories, H-4 and H1B (as well as L-1 and L-2) are not subject to immigrant intent provisions of § 214(b). The exception is contained within the wording of § 214(b), and is referred to as the dual intent doctrine. The dual intent doctrine is well known, and it is highly unusual for an H1B, H-4, L-1 or L-2 visa applicant to obtain an H or L visa denial on this basis alone. Individuals applying for visas in dual-intent categories are allowed to possess the intention to immigrate to the United States in the future. Thus, the spouse’s H-4 visa application should not have been denied for her perceived lack of ties to her home country or the expectation that she may eventually seek to become a lawful permanent resident in the United States.

Murthy Takes Action

The attorneys in our Special Projects Department analyzed the facts and circumstances of the couple’s relationship and immigration history. The attorneys formulated a plan to address the H-4 visa denials with the U.S. consulate. We collected substantial evidence of the couple’s relationship prior to and subsequent to their marriage. We prepared the case for a renewed H-4 visa application process, including a convincing argument that the spouse and daughter were fully and legally eligible to obtain the H-4 visas under the law notwithstanding INA § 214(b).

Second Interview

Fully advised and prepared, the couple again completed an H-4 visa application and scheduled an interview at the concerned U.S. consulate. The H-4 applicant spouse was interviewed by several U.S. consular officers, and was asked questions about her relationship with her H1B husband, their marriage and planned life together in the United States. At the conclusion of the interview, a consular officer inquired as to why the H-4 applicant was not listed as a spouse in the H1B petition.

Conclusion: H-4 Visas Approved One Day Later

The attorney from the Murthy Law Firm eMailed the consulate to clarify that H-4 eligibility exists even when, as in this case, the marriage occurs after the H1B petition is filed and approved. Just one day after the H-4 visa interview, the U.S. consulate advised our clients by eMail that the H-4 visas were being approved.

It is a pleasure to share this positive outcome with MurthyDotCom and MurthyBulletin readers. We at the Murthy Law Firm are always available to assist those who encounter difficulties with the visa application process at U.S. consulates abroad.