E-2 Visa approved for a Singaporean national during COVID-19

221g Administrative Processing – What is it and What Can be Done

Pursuant to your non-immigrant visa (L, H-1B, E-2, O-1) interview, the consular officer will typically indicate whether they are approving or refusing/denying the visa.  But at times, officers may require additional information due to which they are unable to approve or deny the visa at the end of the interview.  In such instances, the officer will “refuse” the visa application placing it under “221g Administrative Processing,” requiring further scrutiny.  Generally, the applicant will receive a notice from the consular officer indicating that their case is undergoing administrative processing, and in some situations, listing further documents that may be needed.

There’s often confusion that a “Refused” visa status on the Department of State’s case portal means that the visa was denied. A Refused status in the context of administrative processing does not mean that the visa was denied or that the refusal is final; it means that the final decision is put on hold until necessary checks are completed.  A refusal may be overcome by providing further information and/or documents as may have been requested by the consulate.

Possible Reasons for Administrative Processing

  • Additional Background Checks – In certain situations, a consular officer will need to verify or confirm certain data.  For example, in H-1B cases, where the applicant will be deployed to an end-client worksite, common in the IT industry, the officer may need to contact the end client to verify assignment and worksite details or employer-employee relationship. 
  • Missing Documentation or Information – If any material information is missing or inaccurate, the officer will likely not make a decision and request further information or clarification as they deem fit. 
  • Criminal Background – If an applicant has a criminal record, the consular officer may need to conduct additional checks to determine their visa eligibility and further evidence such as police and court records may be needed.
  • Prior Visa denial – A prior visa denial does not necessarily hinder obtaining a visa in the same category (or a different one).  That said, if an applicant is unable to satisfactorily explain the change in circumstances from the last visa denial if applying in the same visa category, the consular officer may issue a 221g notice requesting further documentary evidence to clarify change in circumstances.  
  • Material Misrepresentation or Fraud Suspicion – Should an officer suspect fraud, for example, material inconsistencies in information provided in the petition and the applicant’s responses, the consular officer may want to perform additional checks or forward the application to their Fraud Prevention Unit for further investigation, which could involve employer site visits and interviews. 
  • Legal Question – In cases involving complex ownership corporate structures in the E-2 and L-1 visa context, an officer may want to seek guidance from higher authority or wish to review necessary departmental guidance and regulations. 
  • Petitioner Information Management Service (PIMS) – This generally happens when the underlying non-immigrant petition (filed with the United States Citizenship and Immigration Services) has not been updated at the Kentucky Service Center, which scans the duplicate into PIMS systems for consulates to access petition data.

 Timeline and What Can be Done?

There is, unfortunately, no predictable timeline to the administrative processing phase, it can take from a few weeks to several months. 

If the consulate requests specific documents or information via their letter or email, one should ensure that the requisite items are submitted promptly as per their submission instructions. 

DOS has stated that their goal is to complete administrative processing within 60 days.  It is advisable to write to the post (via email and through their online portal) regarding the status of your case if there’s no decision within this timeframe.  If you believe that the consular officer expressed concern regarding any specific point or that you were unable to answer a material question, it might help to address that particular concern or question by way of an email to the consulate.

If the case is stuck in administrative delay for  n excessive period of time, a Mandamus lawsuit could be an option, seeking a U.S. court’s order to direct the post to adjudicate the visa application.

Once the administrative processing is complete, the consulate will issue the visa or refuse/deny it.  In cases where fraud is suspected, the consulate may return the petition to the USCIS with a recommendation for revocation. 

What to Bear in Mind

Administrative processing not only prolongs visa adjudication but to an extent, adds an element of uncertainty; hence it’s important to apply well in advance and factor in such delays.  Certain factors prompting administrative delays are beyond one’s control.  That said, to minimize chances of such delays, the applicant should be prepared to answer all questions as best they can and truthfully.  If you believe there’s anything in the petition or your background that might warrant scrutiny, ensure that you have the necessary explanation and supporting evidence if any.  And very importantly, it helps greatly to understand the requirements of your visa category and be well versed with key petition documents.  As good practice, one should carry all pertinent paperwork to the interview.

D&A attorneys routinely assist and guide visa applicants in the consular processing stage.  Please feel free to contact us if you require assistance in this regard.


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


L1 Visa India

United States Sets Visa Records in India in 2023

In a recent press release, the U.S. Mission in India has stated that in 2023, the consular team in India processed more non-immigrant and immigrant visas than ever before – a record-breaking 1.4 million.  There was a 60% hike in visa applications compared to the previous year, with demands surging across all visa categories.

Employment visas remain a top priority.  Consular officers in India processed over 380,000 employment visas (L-1, H-1B, etc.) for Indians and their family members in 2023 alone. Most petition-based visa processing was consolidated in cities such as Chennai and Hyderabad to increase efficiency and maintain minimal appointment wait times.  

The U.S. stateside 2024 pilot program which has kicked off, allows certain H-1B employees to renew their visas in the U.S., further streamlining processing.

The post in Mumbai which processes immigrant visas in India eliminated a queue of over 31,000 immigrant visa cases delayed by the pandemic.  Immigrant visa applicants can now obtain an appointment within the standard, pre-pandemic appointment window.

The U.S. Mission continues to invest in the future of consular services in India and explore ways to provide more efficient and convenient services.  

Source: https://in.usembassy.gov/


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


H1-B visa India Interview

The Pilot Program to Renew H-1B Visa Applications within the U.S 

The Department of state has launched a pilot program to resume visa renewals for qualified H-1B non-immigrant visa applicants within the U.S. nearly after two decades.

The program has started from January 29, 2024, through April 1, 2024, or when all application slots are filled, whichever comes first. Under this program the department will make a maximum of 20,000 application slots available for approximately 4,000 per week for applicants whose most recent H-1B visa was issued by U.S. Mission India with an issuance date of February 1, 2021 through September 30, 2021, and for applicants whose most recent H-1B was issued by U.S. Mission Canada with an issuance date of January 1, 2020, through April 1, 2023.

This move will help to reduce the workload on officers at the U.S. consulate abroad and also the H1-B beneficiary could continue stay within the country while the visa is being processed. This move will surely a good start, if and when the program becomes permanent it would be a smooth renewal process.

Who are eligible for renewal within the country?

Applicants who fulfil the below criteria shall be eligible for renewal within the country

· Seek to renew an H-1B nonimmigrant visa only;

· Prior H-1B visa that is being renewed was issued by U.S. Mission India or by U.S. Mission Canada;

· Are not subject to a non-immigrant visa issuance fee also known as commonly “reciprocity fee”;

· Are eligible for a waiver of the in-person interview requirement;

· Have submitted ten fingerprints to the Department in connection with a previous visa application;

· Prior visa does not include a “clearance received” annotation;

· Do not have a visa ineligibility that would require a waiver prior to visa issuance;

· Were most recently admitted to the United States in H-1B status;

· Are currently maintaining H-1B status in the United States;

· Have an approved and unexpired H-1B petition;

· Period of authorized admission in H-1B status has not expired; and

· Intend to re-enter the United States in H-1B status after a temporary period abroad.

If the above criteria’s are met then the applicants must submit following list of documents and fees to renew the visa within the U.S.

· A DS-160 barcode sheet for a properly completed and electronically filed form DS-160, Online Non-immigrant Visa Application

· A passport valid for travel to the United States, which is valid for at least six months beyond the visa application date, and contains at least two blank, unmarked pages for placement of a visa foil. RECOMMENDED: A passport containing the most recently issued H-1B visa if the visa is not in the current passport

· Non-refundable and non-transferable $205.00 MRV application processing fee

· One photograph not older than six months

· Copy of current Form I-797, Notice of Action

· Copy of Form I-94, Arrival-Departure Record

The department is processing only H-1B Visa and not H-4 visas under the program. However, if the program becomes permanent then maybe more non-immigrant visa category shall be added such as L-1 visas, E-2 Visa, etc.


This article has been written by Sukanya Raman, Davies & Associates, India Office.

Sukanya is an Independent Consultant working the capacity of Associate of the firm’s Bengaluru office. She earned her first undergraduate degree in Commerce from Mumbai University in 2013 and her second undergraduate degree in Law from Indian Law Society’s Law College, Pune at Savitribai Phule Pune University in 2017.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


S

Importance of Timely Extension Filings and USCIS Update 

A foreign worker on a non-immigrant visa status in the United States (such as L-1, H-1B, E-2, etc.) may be needed to stay longer and work beyond the expiry of their admitted stay that was granted at the time of entering the United States, or as per their latest I-94, in which case the filing of an extension petition may become necessary.  The foreign worker’s US employer will file the I-129 with the USCIS, requesting to extend their non-immigrant status.  Extension petitions can be filed only if the employee (beneficiary) is present in the US at the time of filing.   

USCIS will generally not grant an extension approval if the foreign workers have failed to maintain their non-immigrant status or if their status has expired before the extension petition filing date.  Even during the validity period of their granted stay in the US, an employee could fall out of status; for example, an L-1 employee could lose their status if there is a structural change in the foreign employer abroad resulting in severance of the “qualifying relationship” between the foreign and US employer, as required for L-1 purposes. 

The timing of filing the extension petition is crucial as it has implications.  A late filing of an extension request, meaning filing after the expiry of the granted stay (generally until expiry of latest I-94), can result in them falling out of status.  This can at times have dire consequences, as unlawful presence in the US beyond certain prescribed periods trigger various bars to entering the country.  Thus, it’s very important to keep a track of petition/expiry dates and ensure timely filings of extension requests to avoid undesirable situations.   

Under certain circumstances, USCIS has discretion to condone late extension filings.  These circumstances are: 

  • Delay was due to extraordinary circumstances beyond the person’s control; 
  • The length of delay was commensurate with the circumstances; 
  • The person has not otherwise violated their nonimmigrant status; 
  • The person remains a bona fide nonimmigrant; and 
  • The person is not the subject of removal proceedings and deportation proceedings. 

On January 25, 2024, USCIS updated their Policy Manual to clarify extraordinary circumstances that would allow USCIS discretion to excuse untimely extension filings.  These circumstances include situations where delay arose from a stoppage of work involving a strike, lockout, or other labor dispute; or due to inability to obtain a certified labor condition application due to a lapse in government funding supporting those adjudications. 

If USCIS approves an untimely extension petition, the approval is effective as of the date of the expiration of the prior non-immigrant admission period.  


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.