221(g) Administrative Processing Refusals for H1B Visa Applicants

There are three typical outcomes for visa applicants at U.S. embassies and consulates overseas: approval, outright refusal, or refusal under § 221(g) of the Immigration and Nationality Act (INA). A 221(g) refusal – commonly referred to as “administrative processing” – generally occurs for one of three reasons: (1) the consular officer requires additional documents or information from the applicant, (2) the application requires closer scrutiny by the officer, or (3) the applicant requires additional background or security clearances. Applicants often wait many weeks to receive a final decision after a 221(g) refusal, and some cases remain pending for months, or even years. These refusals are again becoming common practice for H1B applicants, particularly for workers in the IT consulting industry.

221(g) Delay for Additional Information: Problem and Possible Options

It is not uncommon for consular officers to issue 221(g) refusals in order to request additional information from applicants. This type of refusal is especially common in H1B filings involving offsite employment. The applicant typically is given a sheet with the case number, the documents requested (in checkboxes or handwritten by the officer), and instructions for submission. Although the consular officer in an H1B case is not supposed to readjudicate a petition that has been approved by the U.S. Citizenship and Immigration Services (USCIS), in practice, this appears to be precisely what is often occurring.

Documents typically requested may include:

• Offer letter or employment agreement between the petitioner and beneficiary
• Contracts between the petitioner and the mid-vendor/s or end-client
• Letter from the end-client confirming the beneficiary’s assignment
• A detailed project description (particularly for work on in-house projects)
• A complete itinerary of services the beneficiary will perform, including the worksites and dates
• Financial documents, such as the petitioner’s tax returns and wage reports or the beneficiary’s W-2 forms, tax returns, or pay statements
• Evidence of the beneficiary’s educational qualifications or previous work experience

If a consular officer requests additional information, the best practice may be to provide documents that directly and succinctly respond to the request and further demonstrate the applicant’s eligibility for the visa. It is wise to avoid inundating the officer with documents or providing information that was not requested. A clear, targeted response offers the best chance for a quicker approval.

In order to avoid a 221(g) refusal for additional information, the applicant should be well prepared, answer questions truthfully, review the H1B petition carefully to fully understand the details of the work assignment in the United States, and bring copies of the documents to the interview that were submitted to the USCIS to obtain the H1B petition approval.

221(g) Delay for Additional Scrutiny

Sometimes the officer refuses an applicant under 221(g), but does not request any additional information. The applicant is usually given a letter indicating that “additional administrative processing” is required before a final decision can be made. There is usually no way to expedite the processing of these 221(g) refusals, for which there could be two reasons: additional security or background checks, or additional scrutiny of the applicant’s eligibility for a visa.

In the latter situation, the officer was unable to make a decision at the interview window and needs more time to review the application. For H1B applicants, this could mean reviewing the approved petition, the beneficiary’s educational and professional credentials, or other aspects of the beneficiary’s background. The case could also be referred to the consulate’s fraud prevention unit (FPU) for investigation. Increasingly, consulates in India are using this type of 221(g) refusal in order to contact end-clients of IT consultants and verify assignments in the approved petitions.

Troublingly, the consulates may take several weeks or months from the date of the visa interview to contact end-clients. In some cases, projects that existed at the time of the visa interview have fallen through due to the lengthy delay. Employers in the IT consulting industry should be aware of this practice, prepare their employees who are applying for visas by providing end-client letters with up-to-date and responsive contact information, and inform end-clients that delays and contact from the consulate are likely.

Return of H1B Petition to the USCIS for Possible Revocation

If the consular officer uncovers information that calls into question the applicant’s eligibility for H1B classification during the 221(g) processing – including inability to verify the assignment to the end-client location – the consulate generally returns the H1B petition to the USCIS for review and potential revocation. The officer will draft a memorandum outlining the evidence and how it demonstrates ineligibility. Such a memo is supposed to be based on previously unknown facts and not an officer’s disagreement with the USCIS’s approval. The USCIS will then review the case and either reaffirm the previous approval, which should result in a visa issuance, or send a notice of intent to deny (NOID) to the petitioner. Unfortunately, this process takes several months, or years, causing most employees and employers to seek other options rather than await a final outcome.

Possible Strategies for Avoiding 221(g) Refusals

Given the problems associated with 221(g) refusals, especially the uncertain and lengthy timeframes for processing, it is best to try to avoid them. Unfortunately, this can be quite challenging. But, there are some strategies that may help:

1. Ensure the visa applicant is well-prepared and knows the details of the employment and the contents of the H1B petition, including the duties, end-client, location of worksite, and more.

2. Provide the visa applicant with a copy of the petition and all documents submitted to the USCIS. For in-house projects, provide the applicant with a detailed project description, work location, and other details.

3. In end-client situations, provide the visa applicant with contracts or letters from the end-client verifying the assignment. Be sure that the end-client’s contact information is updated and that the end-client is responsive to any potential inquiries from the consulate.

Conclusion

221(g) refusals are again on the rise for H1B applicants, particularly for IT consultants. Such refusals are affecting both first-time and renewal applicants. Therefore, renewal applicants should consider the risks before traveling and make contingency plans for the possibility of lengthy delays. While it may be impossible to completely avoid 221(g) refusals, preparing both employees and end-clients may help to smooth the process.

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