Murthy Success Story: Reaffirmation of H1B Petition Approval after 221(g) Visa Refusal

The ever-present problems presented by the visa adjudications process at U.S. consulates around the world – and particularly in India – are well known to many of our readers. At these consulates, the issuance of section 221(g) visa refusals to those working as IT consultants has become routine. Similar problems are now faced even by the spouses of the IT (or other) consultants when they apply for the H-4 dependent visa. An alarming trend is that an application for the H-4 dependent visa can generate problems for the H1B worker, even if that H1B worker has not applied for a visa at the consulate. Following is a discussion of one such case; an example of the Murthy Law Firm’s successful efforts to overcome a notice of intent to revoke (NOIR) an approved H1B petition, issued after the spouse applied for an H-4 visa. Case-specific details and other client information are never revealed without consent from our clients. We appreciate the generosity of our clients, who have allowed us to share their experience for the benefit of MurthyDotCom and MurthyBulletin readers.

Background: H1B Worker and Change in End Client

This story begins with a foreign national who was the beneficiary of an approved H1B petition, who would later engage the Murthy Law Firm to help in this matter. The H1B petition filed by the petitioning employer indicated that the H1B worker would be assigned a certain project with a particular client of the employer, and that the work would be performed at that client’s offices. Accordingly, the H1B petition was supported by a labor condition application (LCA), listing the client’s address as the work location.

At some point after the individual’s H1B petition was approved, the particular project ended. The H1B-petitioning employer assigned the H1B employee to perform the same job at another client’s offices. The new client’s offices were located in the same Metropolitan Statistical Area (MSA) as the work location listed on the initial H1B LCA, filed with the U.S. Department of Labor and as part of the H1B petition.

Spouse Applies for H-4 Visa at Consulate

Several months after the change in the end client assignment for the H1B worker, the spouse traveled out of the United States. She was in H-4 dependent status at the time of the departure from the U.S. Accordingly, the H-4 spouse applied for an H-4 visa, based on her marital relationship with the H1B worker.

During the H-4 visa interview at the U.S. consulate abroad, the Consular Officer asked the H-4 spouse several questions about her husband’s employment, including his work location. She truthfully told the Consular Officer her husband’s current work location. This work location was different from the location listed in the LCA.

Additionally, there were mid-vendors between her husband’s employer and the end client on his current project. When the Consular Officer asked the spouse to provide the names of the mid-vendors, she mistakenly gave the name of a mid-vendor that was involved with her husband’s first project, but not the current project.

Consular Officer Issues 221(g) Refusal

Of course, the Consular Officer noticed the discrepancies between the H1B petition and the H-4 applicant spouse’s answers. Thus, the Consular Officer refused to issue the H-4 visa and, instead, issued a 221(g) request for information about the H1B employee’s work location, and the vendors involved in the H1B work assignment.

The H1B worker’s employer provided documentation to the consulate describing the current project, and identifying the series of new contractual relationships that led to placement at the current work location. After receiving this information, the consulate denied the H-4 visa application.

Consulate Requests Revocation of H1B Petition

After denying the H-4 visa application, the consulate went one step further and requested that the U.S. Citizenship and Immigration Services (USCIS) revoke the H1B petition approval. This is a fairly recent development in consular practice. Historically, this step typically was taken only when an individual applied for an H1B visa and the H1B petition was before the consulate. Currently, the consulates in India may choose to request that the USCIS revoke H1B petitions after denying the H-4 visas of dependents.

USCIS Issues NOIR on H1B

In response to the consular request to revoke the H1B petition, the USCIS issued a notice of intent to revoke (NOIR) the H1B petition. This notice cited the inconsistencies between the information received at the H-4 visa interview, the information submitted with the 221(g) response, and with the information listed on the H1B petition. At this point, the individual engaged the Murthy Law Firm to obtain guidance and prepare a response to the NOIR.

Murthy Law Firm Responds to NOIR

The attorneys from the Murthy Law Firm responded to the NOIR by arguing that the information in the LCA and H1B petition was true and correct at the time it was filed; the first project ended after the H1B petition approval. Additionally, it was noted that our client’s subsequent work location was in the same MSA as the stated petition work location. Thus, the LCA and initial petition continued to remain valid. (We note for our readers that, at a minimum, such location changes even within the same MSA may require reposting of the LCA.)

We contended in our response that our client’s spouse had simply made an error in identifying the vendor with whom her husband no longer worked. She could not reasonably be expected to understand the minor nuances and intricacies of the contractual relationships underlying her spouse’s H1B employment. We presented evidence that our client’s employment with the petitioner continued to be consistent with the terms of the H1B petition.

USCIS Agrees and Reaffirms H1B Petition Approval

The USCIS agreed with the Murthy Law Firm’s line of arguments, after reviewing and considering the arguments and proof presented in the NOIR response. Accordingly, the USCIS reaffirmed the H1B approval for the employer and for this employee.

By obtaining the H1B approval reaffirmation, the path was cleared for the H-4 spouse to obtain the long-awaited H-4 visa and return home to her family in the United States. The consulate finally issued her H-4 visa stamp.

Conclusion

We at the Murthy Law Firm were delighted with the result in this case – particularly since it is often difficult to overcome issues raised in H1B NOIRs. MurthyDotCom and MurthyBulletin readers again are cautioned regarding the risks of delays and denials of H1B visas for IT consultants, as well as H-4 visas for spouses of such IT workers.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.
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