H1B and H-4 Visa Applications in India Plagued by 221(g) Refusals: Part 1
Historically, the U.S. consulates in India have had a reputation for closely
scrutinizing visa applications. The standards at the consulates for H1B
visas were quite strict, even prior to the U.S. Citizenship and Immigration
Services' (USCIS's) implementation of stricter adjudications policies.
Recently, however, the consular rates of reported issuance of 221(g) visa
refusals and denials have reached a critical level. At the present time,
it would be wise for
H1B workers employed by IT consulting companies, as well as their H-4
spouses, that they limit international travel unless it is absolutely
necessary. Those working for employers in other sectors also face risks that
should be carefully considered before traveling internationally and applying
for visa stamps abroad.
The Immigration and Nationality Act (INA) Section 221(g) is a fairly generic
provision, which states that consular officers cannot issue visas to
applicants who are ineligible to receive the visas under any section of law,
or if the visa applications do not comply with immigration laws and
regulations. Put simply, 221(g) is a catchall provision for refusing a visa
if, in the opinion of the consular officer, the applicant has not proven
eligibility for visa issuance. The 221(g) is classified as a visa "refusal"
and must be revealed as such in any later visa applications. This was
addressed in our news article,
221(g) Visa Stamp is
Considered a Visa Refusal (18.Dec.2009), available on
For many applicants, the 221(g) notification (issued on various colors of
paper) is not the end of the road. It is not uncommon for 221(g) visa
refusals to be used by the consulates as a way of issuing requests for
evidence (RFEs). They contain preprinted lists of documents, and consular
officers check off the boxes corresponding to the additional documents
needed to make their final decisions.
Some 221(g) notices are for administrative processing. These do not require
additional documents from the applicant. They involve internal background
checks on the applicant and/or the petitioning employer, if applicable.
Cases Receiving 221(g)s
The 221(g) can be issued in any type of visa application. We are receiving
daily inquiries and requests for assistance from individuals and their
employers after problems arise in their visa applications. The cases coming
into the Murthy Law Firm and Murthy Immigration Services, Pvt. Ltd. (MISPL)
in Chennai, India, most commonly involve IT consulting company employees
applying for H1B visas. However, we are also receiving inquiries from
individuals in other lines of work who have received the same treatment. While
these types of cases represent a smaller proportion of those experiencing
problems, it has become a common occurrence.
Why Visa Applicants Receive 221(g) Refusals
The 221(g) provisions have been used for many years to request additional
documentation, or to put the application on "hold," pending additional
background and security checks. What is occurring at the present time,
however, is the seemingly universal use of a laundry list 221(g) in many H1B
cases, without regard to the content of the H1B petition itself or documents
and information offered at the interview.
In many situations, documents are offered, but apparently not reviewed at
the interview. Rather, a 221(g) is handed over routinely, without
consideration for the substance of the submitted visa application. This is
largely connected to the January 8, 2010 USCIS memorandum on
employer-employee relationships, covered in our news article,
Analysis: H1B Memo on
Employer-Employee Relationships and 3rd-Party Placements
Many H1B visa denials are issued based on a finding that there is no bona
fide employer-employee relationship. This is also connected to the overall
focus on fraud in the immigration process. There may be warnings or flags in
the system, alerting the consulate to fraud or suspected fraud by the
H-4 Spouses - Disconcerting Development & Prior
Cause for some concern, is that H-4 spouses are receiving 221(g) refusals
and requests for elaborate H1B employer documents.
This is a fairly recent development, as H-4 visa applications were fairly
routine until lately.
Until very recently, an H-4 spouse applying for a visa was expected to
demonstrate a few basic points of eligibility. S/he had to prove marriage to
the individual with the associated H1B petition approval. This was done by
showing the marriage certificate and related documents, and the H1B petition
and status approval notice of the spouse. The H-4 visa applicant had to
demonstrate that his/her H1B spouse was maintaining H1B status. This was
done by providing a current letter from the H1B employer, verifying
employment, and the spouse's current paystubs. In some instances, the
consulates wanted verification that the H1B spouse had a good history of
maintaining valid status, an indication that the H-4 spouse would also be
likely to maintain status if permitted entry to United States. This
typically involved review of the H1B beneficiary's prior immigration
approvals and pay history. The pay history was also relevant to establishing
that the H1B principal could financially support the H-4 derivative spouse.
Current H-4 Spouse Visa Applications at
Consulates in India
At this time, we at the Murthy Law Firm and MISPL are seeing instances of
H-4 spouses in India being required to provide detailed documents regarding
the H1B position, as well as the H1B employer's operations. We are receiving
calls from distraught H1B workers, separated from their spouses, as well as
calls from employers asking why they must provide tax documentation and
employee records to the spouses of their workers. The source of this problem
for H-4s is that consulates are issuing 221(g) notices requesting the list
of documents that would be called for if the H1B spouse was applying for a
Types of Documents Typically Requested in a
There are standardized lists utilized by the U.S. consulates in India for
H1B and, lately, H-4 applicants. In addition to requesting a copy of the
complete H1B petition, including all supporting documentation filed with the
USCIS in support of the petition, the 221(g) typically requests the
following documents from the employer:
employment contract / letter of agreement between the H1B employee and
the H1B employer
petitioning employer's last two income tax returns and financial
notarized list of all the petitioning employer's employees (This list
must include names, job titles, start and end dates of employment,
salaries and immigration statuses. This request is sometimes limited to
employees at the particular jobsite, but is often more expansive.)
employer's state unemployment wage reports, for the past three quarters
letter from the end client, verifying the position and vacancy
letter from the end client and a copy of the contract between the
petitioning employer and the end client, setting forth the timing and
terms for the project
position is for work on an internal development project, the 221(g) requires
a detailed and specific description of the internal development project.
This must include a complete technical description and timeline, the
individual's current status, the number of employees assigned, the worksite
location, and a marketing analysis for the final product.
After 221(g) Administrative Processing Issuance
If the 221(g) does not request documents, the case is under administrative
processing. These cases can take many months, with very little information
forthcoming regarding timeframes.
In cases for individuals who have documents requested, these documents
typically are gathered and submitted according to the instructions. The
waiting time can vary, from a few weeks to a few months. In some instances,
the visas are approved following document submission. In many others,
however, the visas are denied. If one's visa is denied, the consulate sends
the H1B petition back to the USCIS for reconsideration and possible
revocation. The USCIS is supposed to review these cases and either reaffirm
the approval or issue a notice of intent to deny (NOID). This is a separate
issue, beyond the scope of this article, which has been discussed in past
news articles available on MurthyDotCom.
H-4 Gets a 221(g) for H1B Documents
As stated, H-4 spouses are not immune to the list of documents the 221(g)
requests. We at the Murthy Law Firm are aware of instances in which H-4s
have received 221(g) requests for the same types of documents requested for
H1B visa applications. This
includes employer documents, such as tax returns, state unemployment
filings, information about the employer's other workers, and end-client
letters. We have seen H-4 221(g) requests pre-printed with requests for an
end-client letter, verifying the H1B spouse's position. End-client letters
are not always possible to obtain, due to the internal policies of many
large U.S. companies that use the services of IT consultants. Absent a
complete response to the 221(g), the visa is likely to be denied.
The frequent issuance of a 221(g) refusal of the visa without a substantive
review of the application is obviously problematic. Part two of this news
article will address the legal issues involved, and efforts to address
problems. For now, however, it is important for MurthyDotCom and
MurthyBulletin readers to be aware of this growing problem and alarming
trend. Accordingly, any H1B or H-4 visa applicant must consider the risks
before making travel plans. If international travel is imperative, it is
necessary to ensure that one's employer will supply the requested documents
and keep the position open, if there are delays and denials. There are
avenues to address abuses of authority within the system, but it is
necessary for employers and individual applicants to be willing to pursue
these methods when problems arise. The Murthy Law Firm is available guide
and assist those who are facing denial or potential denial of visas at U.S.
consulates due to these matters.
Editor's Note: H1B And H-4 Visa Applications In India Plagued By 221(g) Refusals: Part 2 was published on the January 31 issue of Immigration Daily.
This article originally appeared in Murthy Bulletin on www.murthy.com. Reprinted with permission.
About The Author
Attorneys from the Murthy Law Firm. Sheela Murthy is the founder of the Law Office of Sheela Murthy, P.C. which consists of over 45 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Office of Sheela Murthy, P.C. handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
Share this page
Bookmark this page
The leading immigration law publisher - over 50000 pages of free information!
© Copyright 1995- American Immigration LLC, ILW.COM