Imagine the following situation.
You’re a student working on OPT whose status is about to expire. Logically, you ask your company to sponsor you for H-1B. Your company happily obliges. After a longer than normal processing time and after responding to a 20 page Request for Evidence from USCIS your H-1B is finally approved. The news is exhilarating as H-1B is often the first step towards an employment based Green Card for many highly educated immigrants in the United States.
Now that you’ve accrued some vacation time, you decide it’s a good time to visit your friends and family back home. You inform your manager that you’ll be taking two weeks off and will be back on your project in no time. Due to the amazing work you’ve been doing your manager is more than happy to give you some much needed R&R. You fly home, see your family, get nostalgic for your childhood, see some of your old friends, and maybe even look for a spouse.
WATCH THIS MOVIE ON INA 221(g)
However, you know that your career is in the United States, and being the intelligent person that you are, you immediately schedule an interview at your local consular office in order to quickly obtain an H-1B Visa stamp on your passport. You speak with your company attorney and representatives of the consular office who adviced you on what documents to bring. To be on the safe side, you bring a copy of your 300 page H-1B petition, all your school records, and letters from your manager testifying to their need for your services on the current project.
You feel a bit nervous on the day of your interview. You’ve heard all kinds of horrible stories about people whose visas were denied during consular processing. Nonetheless, you move all those negative thoughts to the back of your mind, after all, those people were most likely scammers and cheats who make law abiding immigrants like yourself look bad. After going through the security protocol and waiting your turn, you’re finally called in. The officer in charge of your interview seems nice enough and initiates a friendly banter as he goes through your file. Then without notice, the banter stops and he starts mumbling to himself and shaking his head disapprovingly. “Sorry, but I’m going to have to send this petition back to the state department with an intent to deny,” he says with absolutely no sympathy.
“Why!?” you ask in disbelief. After all, the Department of Homeland Security approved your H-1B petition. What does this guy, who isn’t an attorney or judge, know that could make your H-1B petition deniable? The officer seems shocked that you’re shocked and tries to lay the blame for your misfortune on the attorney who filed your H-1B and the company you work for.
The first thing you do upon leaving the interview is email your project manager asking him to either call, write, or email the consular office stating that you need to return to work. He happily agrees to do so. Unfortunately, he receives no response. What starts as a daily email exchange between you and your project manager informing him of your situation with the consular office dwindles into a trickle of semi- weekly updates with your manager.
Finally, after 4 months of waiting with no pay, you find out that your H-1B was denied. Your company can’t rehire you much less re file an H-1B
for you because your long term absence forced them to hire someone else. Meanwhile, your ability to find new work in the United States is strained because of the obvious difficulty in finding a job overseas, while many jobs won’t hire prospective employees without an in-person interview which given your predicament is impossible.
Unfortunately, the above mentioned Kafkaesque situation while fictional is based on the reality of many H-1B holders who decide to return home to their country of origin for a short trip. Consular officials often misinterpret the law and question the approval of H-1B petitions that already went through a 4-6 month review process with the Department of Homeland Security, thus throwing the lives of many people into disarray while simultaneously doing harm to the American economy. It’s an unfortunate reality that the American Immigration Lawyer Association (AILA) is attempting to resolve with American consular offices overseas, however, until these issues are resolved scores of H-1B holders risk having their careers ruined by an uninformed consular officer.
For more information on consular processing call us at (510) 742 5887. The scenario above is based on some of our clients’ experiences with the US consulate. It is not an actual case. You should not rely on this story as legal advice. The story is to illustrate INA 221(g) which reads:
Section 221(g) of the Immigration and Nationality Act reads:
(g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law: Provided, That a visa or other documentation may be issued to an alien who is within the purview of section 212(a)(4), if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213: Provided further, That a visa may be issued to an alien defined in section 101(a)(15) (B) or (F), if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 214(a), or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 248 of the Act, such alien will depart from the United States.