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H-1 Visa Issuance Perils

Rajiv Khanna

July 9, 2012

A member of the legal immigrant community had posted this comment this morning

Submitted by Rajnikant on Jul 9th 2012.
Hi Rajiv, I am Rajnikant I went for visa stamping at Delhi ,India and my case was put under 221(g) administrative processing(Green letter). On April 1st 2011, and after that I submit required document to the VFS center Ahmedabad (document required A DHS latter copy and end client contract latter) on 13th April 2011After that there is no any Reply from US embassy till today its pass more than 14 month from interview and my petition is expired after 15 months so in such type of situation what can be expected from US embassy which type of output we expect from embassy in such type of cases.Plz
I am sorry Rajnikant, there is not much we can do short of a lawsuit. There was a recent 9th Circuit ruling that held courts CAN make the consulates deliver a delayed decision (however, courts cannot overrule consular discretion). But your lawyers can contact the Visa Office in Washington, DC to ascertain if anything can be done. It is sad indeed that we, the so called leaders of the "free" world, hold LEGAL applicants hostage to interminable processes. See the below letter we had sent to the powers that be over a year ago. While this letter was invited by the government, we have seen no improvements:

Document Begins

On the Letterhead of Law Offices of Rajiv S. Khanna, PC

27 June 2011 [Redacted] Re: Recurring impediments in procuring professional visas (H-1B)

Dear Dr. [Redacted]:
We are writing this letter on behalf of [Redacted Company Name] Consulting, Inc., who joins us in writing this letter, and on behalf of several of our corporate clients. Following is a brief summarization for your attention of the recurring impediments in procuring H-1B petitions and visas, which is making it impossible for U.S. companies to stay competitive and - for many of them - to even survive in this economy.

Problems with USCIS Processing

Over the past few years, USCIS has routinely started requiring documentation that is highly onerous and is often impossible to obtain. The standards of adjudication have been raised to beyond what is reasonable and necessary to fulfill any legitimate regulatory purpose.

[Readcted Company Name]'s Submissions

The supporting documentation that is required for each H1-B petition (new, extension, or transfer) has increased tremendously. We currently provide 200-250 additional pages of supporting documentation for each petition. In spite of providing the required documentation at the time of application, USCIS still sends us at least one or more rounds of queries for each petition. We have been in this business since 19XX and have established a good track record, but still we are required to repeatedly provide our tax returns, latest payroll details, latest bank records, business premises pictures, financial standing documents from CPA, etc. for each petition. This process involves a substantial amount of time and cost per petition even before the petition is considered or accepted.

Amongst other things, USCIS requires us to furnish a copy of our contract with the client and a purchase order naming specifically the beneficiary at the time of the petition. This is not practical for the following reasons:

  1. No client is willing to issue a purchase order because the process of applying for the petition, its approval, applying for and obtaining a visa to come to U.S.A takes on an average almost 6 months even when there are no queries or any other delays. There are hardly any clients who would enter into a contract with us for such an employee. Clients require resources as soon as they have identified a requirement for a technical resource in their company and they are not willing to wait for such a long period to fulfill that requirement.
  2. A client will not provide a purchase order as our employee who is being petitioned does not have any legal status in the U.S. Additionally, clients cannot perform background check, drug screening, etc., because of the uncertainty and delay involved in the USCIS and consular processing.
Problems at the Consulates

As a part of the a H-1B process, after obtaining approval from USCIS, employees are required to apply for a visa at a U.S. consulate either when they enter the U.S.A. for the first time or when they travel outside the U.S.A.

Unwarranted Delays

After spending $4,000 to $6,000 per H-1B visa petition, employees are being denied H-1B visas by U.S. consulates, which routinely revive issues that have been extensively addressed and resolved by USCIS. This leads to a tremendous waste of time and resources. The duration for a typical consular administrative processing can last from a few weeks to a few months. U.S. employers cannot afford these types of delays.

Unreasonable Denials

Even after employers supply all information and wait through weeks and months of processing, a large number of cases are being denied. What is worse is that no meaningful explanation is provided for the denials. Quoting from an actual consular denial: "Your visa is being denied because the U.S employer is unwilling or unable to offer you the position. The lack of a reasoned decision is obvious from the egregiously vague language of the denial".

Unfair Procedures

Once a case is denied, there is nothing an employer can do. There is no appeal against a consular denial. As soon as a visa is denied, the consulate sends the case back to USCIS for revocation. That leads to a further delay of several months, in case employers want to apply for an H-1B again for the same employee.

[Readcted Company Name]'s Submissions

In the past 2-3 years in almost 100% of our cases for visa applications the beneficiary is sent back with a query from the consulate. At this point we have to again produce the same kind of documentation for the consulate that has already been provided to the USCIS. Since all communication with the consulate is through our visa applicant employee, we are constrained to release all our financial documentation including bank statements, payroll details, and tax returns to the employee irrespective of the fact that he or she may or may not be joining us. Theconsulate also requires client letter of intent or purchase order. It is not practical to provide such letters for the same reason as mentioned above. This whole process can take anywhere between few weeks to a few months before we know that the person has been granted visa or not. At this point of time we have spent almost $5000.00 - $6000.00 for each petition. Despite our complete compliance with consular demands, in most of our cases employee is refused the visa. As a result of this we have stopped applying for fresh H-1B petitions since 2009.

In addition to new applications, even when our existing employees have to go to their home country for a vacation or family emergency they normally have to apply for visa extension at the consulate mentioned in their H1-B approval. These people are also handed the same kind of queries or issued denials. We have to provide the exact same information as in the case of a new visa applicant. In these cases most of the times we are able to provide letter from the client verifying that the beneficiary is working onsite. These are the people who are already working in the US for the past few years. They are already on our payroll, have SSNfs, pay taxes and are contributing to the economy.

The third issue that we have recently faced is regarding dependent visas. We have an employee who has been working in the US for the past one year. His wife and child want to join him but they have been denied H-4 approvals at the consulate level despite providing adequate documentation that includes H-1 petition of the beneficiary, client contracts and work order and our financial status documentation. The consulates are holding hostage the family of our employee.

On behalf of the stakeholders, including [Redacted Company Name], we urge you take immediate remedial action to save U.S. businesses and address the implicated humanitarian concerns. Prior to the extant culture of denial, H-1B petition approvals and visa approvals approached almost a 100% rate of success, whereas, now, the trend seems to have reversed drastically. We note for your reference that all impediments created are matters of policy and require no change whatsoever in existing statutes and regulations. Please let us know if we can provide any further documentation or information you may need.

Document Ends

About The Author

Rajiv S. Khanna is a member of the Virginia and DC Bars and the principal of the Law Offices of Rajiv S. Khanna, PC. Since 1993, the firm has focused its practice on employment and business-based immigration and related administrative and federal litigation, and represents individuals and businesses from every major city in USA and internationally. The firm immigration practice includes transactional work (immigration/visa petitions, etc.), compliance consultations, defending government audits and related litigation. The firm employs forty people and has offices located in Arlington and Staunton in Virginia. Mr. Khanna has been providing educational seminars for over ten years with emphasis on practical approaches for compliance with immigration laws. His background includes corporate law, commercial law, constitutional law, business law, government contracts, private international law, and RICO and Antitrust litigation and litigation management. Because of this diversity, Mr. Khanna possesses experience and insight from various disciplines that equips him to provide a unique insight into immigration law as a multi-faceted discipline. As of June 2012, he has provided advice and representation in over 65,000 immigration cases and over 170 investigations.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.