U
pon approval of H-1B petition by the
USCIS[ii], foreign nationals residing
abroad may need to go to the U.S.
Consulate/Embassy to get an H-1B visa
stamped into their passport before they can
travel to and enter the United States. Before
going for the visa interview, it is very
important for a visa applicant to understand
the purpose of the visa interview, the
discretionary powers vested in the Consular
Officers, and most importantly the kind of
fraud, technical violations and/or
misrepresentation that could result in visa
refusal or administrative processing.
First and foremost, it is very important to
understand that although Consular Officers
cannot re-adjudicate petitions approved by
the USCIS, Consular Officers can certainly
review the petitions to determine the
eligibility of visa applicants. Consular
Officers, thus, are vested with wide and
discretionary powers. Till date, there is no
set mechanism in-place by which a foreign
national, applying for a visa abroad, can
challenge a Consular Officer's unfavorable
exercise of discretion.
To be specific, Consular Officers derive
such broad discretionary powers through
section 221(g) of the Immigration and
Nationality Act (INA). A quick glimpse at
Section 221(g) provides the factors that may
form the basis of visa refusals or
administrative processing. In simple layman
terms, the statements in the application or
in the papers submitted therewith may
trigger visa denial[iii]. Further, a Consular
Officer may determine that the application
does not comply with the INA or
regulations[iv]. If that happens then
Consular Officers is bound to explain clearly
"... what documents or other evidence is
needed, or what procedural step needs to be
completed (e.g., case being submitted to the
Department for advisory opinion ...)."[v].
Additionally, a Consular Officer may
refuse to issue visas if s/he "knows or has
reason to believe" that the foreign national
is ineligible to receive a visa. Interestingly,
although "Reason to believe" is an objective
determination based upon facts or
circumstances which would lead a
reasonable person to conclude
ineligibility[vi], it can be formed through
hearsay evidence.
In certain cases the final determination
about visa can put on-hold pending
"administrative processing" The Foreign
Affairs Manual (FAM) defines
"administrative processing" as clearance
procedures or the submission of a case to
the Department of State (DOS)[vii]. The
same FAM guidance counsels Consular
Officers not to reveal to visa applicants the
specific reason for administrative
processing in a given case[viii].
Further, there is no strict timeline
specified for administrative processing
resolution. Even though the DOS
Administrative Processing webpage informs
us that most administrative processing is
resolved within 60 days of the visa
interview[ix], it is very difficult to confirm
this claim. In other words, clients whose
visa applications are subjected to
administrative processing could end up
waiting significant amount of time (often in
excess of 60 days) until the administrative
processing is completed and visa is finally
issued. In some cases, the administrative
processing of the case can take up to two (2)
years.
Types of Fraud, Technical Violations, and/or
Misrepresentation That May Trigger
Administrative Processing/Visa Refusal at
Consular Posts
Understanding the kind of fraud,
technical violations, and/or
misrepresentation may help avoid the visa
refusals or administrative processing at the
Consular Posts abroad. Listed below are
some typical violations, fraud or
misrepresentations that could trigger
administrative processing/visa refusal:
• H-1B employer required the beneficiary to
pay the ACWIA fee[x] or deducted certain
fees associated with filing the I-129 petition,
effectively lowering the beneficiary's wages
to less than the required prevailing wage;
• Employer failed to pay the beneficiary at
least the prevailing wage for the particular
occupation in the specific geographical
location, as noted and attested to on the
LCA filed with DOL;
• Beneficiary was working in a geographical
location not covered by a valid Labor
Condition Application (LCA) filed with
Department of Labor (DOL);
• The employer placed the beneficiary in a
non-productive status, commonly referred
to as "benching"[xi] (where the
beneficiaries are not paid or paid less than
the full hours specified on the petition),
when work was not immediately or
continuously available;
• Business did not exist, no evidence of daily
business activity, the business location was
unable to support the number of employees
claimed, or there was no evidence that the
employer ever intended for the beneficiary
to fill the actual job offered;
• Educational degrees or experience letters
submitted were confirmed to be fraudulent;
• Signatures had been forged on supporting
documentation; and
• Beneficiary performing duties that were
significantly different from those described
on the LCA and I-129 petition.
News India Times
July 17, 2015
24
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IMMIGRATION
By:
Michael Phulwani, Esq.,
David H. Nachman, Esq.
and
Rabindra K. Singh, Esq.
Fraud, Technical Violations,
and/or Misrepresentation That
Could Trigger H-1B Visa Refusal
or Administrative Processing
Under 221(g) at a Consular Post
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