Mitigating the Likelihood of a 221(g) Visa Refusal

Mitigating the Likelihood of a 221(g) Visa Refusal
January 2, 2019

There are reports of a significant increase in the frequency with which IT professionals are refused H-1B visas under INA §221(g) at U.S. consular posts in India. Refusals are reportedly accompanied by questionnaires that seek to elicit information that either is already available in PIMS (Petitioner Information Management Service) or that is specific to an assignment or project such as a technical description, budget, timeline, current status, the number and name of employees assigned to the project, along with title, salary, immigration status, and employment start and end dates.

 

Impact of Buy American/Hire American (BAHA) Executive Order

The DOS (Department of State) has confirmed that there have been no policy or regulatory changes that have altered adjudication standards as a result of BAHA.  When asked if DOS could make statistics on 221(g) refusals publicly available for U.S. Consulates in India and other posts, DOS could not commit to posting these statistics.

 

Staffing and Post Capacity

Given the potentially severe financial impact of visa processing delays, DOS was asked about a mechanism by which a business may request expedited review of material sent to a consular post following a 221(g) refusal. DOS explained that there currently is no expedite process due to the heavy volume of cases and post-specific workflow challenges. However, DOS confirmed that it is in the process of increasing capacity at several consular posts in India, which includes expanded facilities in Hyderabad and New Delhi and renovations in Chennai. This expansion, along with additional personnel should result in faster handling of cases.

 

Strategies for Reducing the Likelihood of 221(g) Refusals:

While it may not be possible to avoid questions about the applicant's job duties, including questioning as to the availability of U.S. workers, applicants should employ the following strategies to reduce the likelihood of a refusal under 221(g): 

  • Be prepared to discuss the job offered and the specific skill set required to perform the job.
  • Be prepared to provide a succinct explanation to the consular officer about the position (what the H-1B employee will do) and the value that they bring to the U.S. employer.
  • Be prepared to explain how the position has a positive impact on the U.S. economy considering the BAHA Executive Order.
  • Have up-to-date resumes containing detailed information of the visa applicant’s current and prior positions, education, publications, and other relevant experience.
  • Applicants working as consultants or at third-party locations should be prepared to provide a work itinerary, an explanation of the supervisory structure, and other relevant information to document the employer/employee relationship with the petitioner.
  • Prepare for potential delays, including those brought on by "administrative processing," and devise a contingency plan in event of such delays.