Mr. C worked as a teacher at an elementary school in Texas for several years in H-1B status. When he applied to renew his H-1B visa in Mexico City, the consular officer denied him, expressing his belief that Texas should be hiring American teachers. The school district then planned to terminate his contract because of his inability to return to the United States. Our firm brought this to the attention to the Department of State, and the consular officer issued the visa to Mr. C.
Section 221(g) of the Immigration and Nationality Act
It is often the case when an applicant for a visa is told that a final decision cannot be made on his visa application immediately. In doing so, the consular officer invokes Section 221(g) of the Immigration and Nationality Act and informs the applicant that the case will be put on hold until the applicant’s eligibility for the visa can be determined. This processing “time-out” is taken frequently: approximately more than 1,100,000 visa applications were subjected to 221(g) during 2012. Technically, 221(g) is considered a denial; in subsequent visa applications and registration in the Electronic System for Travel Authorization, this must be disclosed. Nevertheless, the overwhelming majority of 221(g) denials are overcome and visas issued.
There are, in essence, two types of 221(g) cases:
- Washington-related “administrative processing”, in which a clearance or approval is required from an interested agency or agencies in Washington, D.C.
- Post-related, in which the consular officer requires additional time, information, or documentation before making a final visa decision.
Clearances from Washington are required when the applicant presents issues of security, criminality, legal questions, technology exports from the US, other admissibility problems, or is from a country of concern. The question of a security “hit” can arise in a variety of situations, such as potential terrorists, individuals who previously worked as military or other attachés in the US for an unfriendly country, even if that work took place decades before, or even individuals who spent time in certain countries (e.g., Iran). To resolve these issues, a Security Advisory Opinion is needed. Often the “hits” arise because the applicant has a common name: other individuals with the same name are blacklisted, causing cases of mistaken identity or prolonged delays. Suspected criminal activity or ties (e.g., Russian mafia) can also lead to prolonged processing to allow for an investigation. In addition, consular officers refer some legal issues, such as certain material misrepresentations made in a visa application, to Washington for a legal advisory opinion. The application will be held in abeyance until receiving guidance from the Visa Office Advisory Opinion section.
A widely applicable phenomenon has been administrative processing for applicants, usually scientists, researchers, and businessmen, who may be exposed to technologies in the United States which fall under the Technology Alert List. The US does not want sensitive technologies to fall into the wrong hands. In such cases, the applicant is requested to provide an English-language resume, list of publications, and description of the proposed work to be done in the US, which is forwarded to Washington. Individuals who hail from certain countries, such as Iran, Syria, Sudan, must be cleared by Washington. Quite often, these clearances are a formality and simply a question of time to run through the interagency gamut. However, for certain types of clearances, the visa validity period may be limited.
Post-related issues can also be broad in scope. They may include investigations or verifications in the home country of the applicant or requests for information or documentation relating to the qualifications of the applicant for a visa. A consular officer may seek to investigate or verify issues such as:
- the legitimacy of a marriage (e.g., send an investigator to the home of the couple applying for a visa);
- employment of an applicant (e.g., calling an applicant’s company to verify that he does work there);
- tax filings or information (e.g., confirming with the tax inspectorate the tax number of an entrepreneur);
- pension fund payments; authenticity of an education document (e.g., sending an inquiry to the Ministry of Education or a school or university to confirm that such a diploma was issued);
- intentions or existence of a sponsor (e.g., calling the United States to speak to the signatory of an affidavit of support);
- or authenticity of a statutory document, such as a marriage, birth, or divorce certificate.
Additional document requests may include:
- a police certificate from a country in which the applicant lived after the age of 16;
- certified copies of court dispositions (arrests, convictions); confirmation of the date of a past departure from the US (e.g. visa overstay);
- employer tax documentation; additional affidavit of support (e.g., consular officer does not believe that the submitted affidavit of support suffices);
- job offer (e.g., a Lottery winner); financial documents (e.g., if the applicant will undergo medical treatment in the U.S.);
- and additional information about the job to be performed in the United States or the employer.
Sometimes, the initiation or outcome of these investigations can be erroneous. For example, a consular officer may mistakenly believe that an applicant has a background in a technology that is on the Technology Alert List; a consular investigator may visit the wrong office address; a secretary who picks up the phone at the applicant’s place of employment may tell the consular caller that no such person works there when in fact the applicant does work there; a consular officer may be attempting to re-adjudicate a previously-approved employment petition by requiring additional documentation or sending it back to USCIS.
This is why it is necessary to be proactive in dealing with a 221(g) decision by a consular officer. Applicants should cooperate with reasonable consular requests, but also seek to aggressively challenge questionable requests, overreaching demands, and protracted delays in processing. If your application is pending under Section 221(g), please contact us to discuss your situation.