H-1B and L-1 Processing in India

Department of State Q & A from an April 6, 2011, meeting:

a. 221(g) Requests

We have seen a tremendous increase in the issuance of 221(g) requests from several posts abroad, particularly in India. It is impacting businesses across various sectors, including those who are not engaged in consulting. As we have expressed in the past, AILA is concerned because many of these requests are for documents already provided with initial filings or in response to RFEs from USCIS. Evidence requested includes documentation of corporate existence and viability, company relationships, income tax returns, financial statements and state unemployment wage reports, proof of employment, future itineraries, and employer-employee relationships. The applicant will bring an entire copy of that filing to the NIV interview. Nevertheless, applicants often are issued 221(g) letters asking for the same documents just presented to the consular officer or, worse, will be provided notice that post intends to return the petition to USCIS for revocation. Additionally, the visa applicant is told not to contact the post for an update or, in the case of a revocation, to contact the USCIS for more information.

i. At a minimum in the H-1B and L-1B context, AILA respectfully requests that the supporting documentation be reviewed by the Consular Officer (CO) to determine whether or not the applicant will be working for a consulting company with multiple job sites before a lengthy 221(g) is issued.

A: Unlike with most nonimmigrant visa applications, it is not unusual that H&L applicants must provide supporting documentation (often of a highly voluminous and technical nature) to demonstrate their qualification for the visa. While consular officers are sometimes able to make a determination during the course of the interview, they often need additional time to review the documentation presented by the applicant or to research whether the applicant qualifies for the visa. Consular Team India (CTI) requests AILA to encourage their clients to be fully forthcoming during their visa interviews. We often have cases where the visa applicants convey facts during their interview that are contrary to the supporting documentation provided by the petitioner. This is especially true in cases involving multiple job sites. What AILA proposes would involve two detailed reviews of cases in many instances, which would have the practical effect of reducing the volume of cases posts could handle. We believe the current system of a quick review followed by a detailed review, if necessary, best suits our applicants.

ii. In addition, AILA is concerned about the quality of adjudication “decisions” on difficult business cases in India. In one instance, the file was transferred because the I-129 form mentioned education equivalency based on a combination of education and experience, a perfectly acceptable norm in H-1B cases. The officer did not even issue a 221(g) letter. Instead, the file was returned USCIS for revocation. In other cases, we see visa denials on “consulting cases” where post denies the visa, finding that “the petitioner is unable or unwilling to provide qualifying employment and will not be able to maintain the employer-employee relationship,” without interviewing the applicant about the issue. Please explain the ongoing training that officers receive on evolving business issues, and how much time is allotted for reviewing such cases.

A: CTI processed almost 115,000 petition-based employment visa applications in FY2010, accounting for almost 49 percent of all H1-B issuances and almost 45 percent of all L-1 issuances worldwide (just as in the past four fiscal years). The five Consular Sections in CTI have worked together and with VO to ensure that their consular officers are using similar standards and are correctly applying U.S. immigration law. Although the Consulate in Chennai coordinates the Mission-wide BEP program, each post has a BEP coordinator. In addition, each post has an H&L coordinator, an outreach coordinator, and a training officer. Together these officers provide outreach and training programs both within each Consular Section to consular employees and beyond the Consular Section to BEP members and the public at large. CTI has recently unified India as one consular district and we are making additional efforts to better coordinate our adjudications and case-handling. If there are specific cases of concern, CTI encourages AILA to provide information on those cases, so that it can look further into the matter.

b. Confidential Information

Posts continue to require H-1B and L-1 visa applicants to personally present confidential petitioner financial information, including income tax returns, financial statements, and state unemployment wage reports. Please direct posts to develop systems to receive confidential information from petitioners that do not involve delivery by visa applicants.

A: The best option is for the petitioner to have the visa applicant present the supporting documentation to the Consular Section directly to ensure that it is connected to the relevant case. If there are significant confidentiality concerns, companies may also send information through the mail, and some Consular Sections accept information via email or fax.