New H1B Filing After 221(g) Visa Refusal at U.S. Consulate Abroad

H1B visa refusals have become common for those working within the IT consulting industry, as regular MurthyDotCom and MurthyBulletin readers are aware. These problems have made travel abroad by H1B employees risky, if a new visa is required for reentry to the United States. This problem is common in India. One of the potential solutions to the dreaded Immigration and Nationality Act 221(g) refusal is a new H1B petition filing.

221(g) Refusals Common

Several articles on MurthyDotCom address the 221(g) refusal practice that has become a common occurrence, particularly at U.S. consulates in India. The refusals primarily focus on applicants who work in H1B status within the IT consulting industry, and the H-4 spouses of such individuals. More information is available in our NewsBriefs, H1B and H-4 Visa Applications in India Plagued by 221(g) Refusals, Part I (14.Jan.2011) and Part II (21.Jan.2011). More recent insights into this matter are set out in Investigation Memo on Employers Results in 221(g) Refusals (19.Aug.2011).

Two-Step 221(g) Process

The 221(g) process essentially involves two steps. Often, a consulate issues a 221(g) refusal at the time of the visa interview. The Consular Officer may ask for additional documents, in a manner similar to a request for evidence (RFE). Once the documents are provided, the consulate makes a final decision (this may take months). This final decision could be an approval; it could also be another 221(g) refusal. This second refusal states that the H1B petition is being returned to the USCIS with a memorandum from the consulate. Unless the U.S. Citizenship and Immigration Services (USCIS) reviews the petition and verifies that it is valid, the visa issuance for the H1B employee is delayed or denied at this point.

One Option: New H1B Filing

The visa refusal experience can be confusing for many. Both H1B employers and employees believe that they are limited to options related to the H1B petition upon which their particular visa application was based. There may be other options, some of which may be pursued in parallel with the 221(g) response and waiting for consular action on that H1B petition and visa issuance.

It is possible for U.S. employers to file H1B petitions for individuals who are outside of the United States. This can be done even if the H1B visa process is pending a final decision, after an initial 221(g) refusal. It can also take place after the final 221(g) visa refusal and return of the H1B petition to the USCIS.

Typically, the most likely alternative employer would be the end client or mid-vendor. This is fairly common, particularly if the candidate has been a key player in a project for an extended period. There may be other companies interested in hiring the H1B employee. Likely H1B employers would be end clients or other companies where the applicant previously worked, as these would have firsthand knowledge of the H1B employee’s abilities.

No H1B Cap Issues

Filing through an alternative employer after a 221(g) visa refusal may avoid issues with the H1B annual limits or “cap.” Assuming that the applicant previously worked in H1B status for a cap-subject employer, the new filing would not be cap subject. If the individual spent a year outside of the United States, s/he may wish to have the case filed against the H1B cap, in order to take advantage of the provisions allowing for “resetting” the entire six-year period of H1B stay. However, this is optional and does not apply to those who have been abroad for less than a year. Thus, if there is an employer who would like to hire the individual, the H1B cap would not come into play in most cases.

Pay Stubs Not Necessary if H1B Employee is Abroad

People who are stranded abroad usually are not working for their H1B sponsors while they wait for decisions on their visas. This, too, is not an issue when seeking to re-file an H1B petition through a different company. Pay stubs can be important to prove that one is in status when filing a request to extend or change status within the United States. From outside the U.S., one does not hold any immigration status, and current paystubs are not needed. Of course, the consulate often wants proof of status during time periods when one was in the U.S. Pay stubs and W-2s from the time spent working in the United States can be important from that perspective.

H1B Employee Permitted to Work Remotely from Outside U.S.

While it is not typical for an employee to work for the H1B sponsor while abroad, some employees are able to continue performing their job duties remotely. They are often afraid that this is somehow a violation, since they are having problems with the H1B case. The immigration law restrictions do not control work performed while an employee is outside the U.S. Therefore, there is no reason to fear the discovery of earnings generated while outside of the United States.

Withdrawal of Prior Pending H1B Petitions

As mentioned above, a new company can file an H1B petition for an individual who is awaiting the outcome of a 221(g) refusal or who has received a final visa denial. In order to reapply for an H1B visa at the consulate, it is necessary to withdraw any prior, pending visa applications. The precise procedure for making this request varies from consulate to consulate. However, the applicant does not have to be concerned with whether or not the initial H1B petition (upon which the 221(g) refusal was based) has been withdrawn. This withdrawal is within the control of the employer who filed the particular H1B petition, and is not the responsibility of the foreign national.

Conclusion

It can be difficult to find a way to return to the United States after a 221(g) refusal of an H1B visa. But, it may be possible if a different employer is willing to hire the professional and file the H1B petition. The 221(g) refusals for IT consulting positions are, with limited exception, all related to matters regarding employers and employment. They usually are not related to negative factors regarding the employee or her/his educational or prior work experience credentials. Thus, filing through a different company – especially one that does not have the same employment structure – may help to resolve this dilemma.

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