Today we thought we give an update as released by the US Government as the nature of Deportations of foreigners from the US in the fiscal Immigration year FY-2011. We don’t really have an opinion on this as we don’t know anything about any of the individual cases or much about deportation generally as a US Immigration issue. Certainly for convicted violent felons who happen to be foreigners it is hard to feel much sympathy when you think the many thousands of foreigners who are want to come to the US legally or those that are already here on waiting lists for more permanent status like a Green Card or US Citizenship.

However deportation is something that any Immigrant who is not a US citizen certainly faces as a reality of the status whether due to fault of their own or things beyond their control. So it is important to be aware of what is going on in the world of US Immigration as far as deportation is concerned. In the past we have written specifically about the cases of deportation of people who were already approved and received an H1B visa from the US consulate for dubious and yet fully unknown reasons at best.

So exactly 396,906 foreigners were deported in FY2011 of which about 55% had either a felony or misdemeanor conviction for some crime committed within the US. Unfortunately this crime rate was up about 89% from 2008 levels and possibly could be attributed to the more bleak economic picture and bad job situation meaning many of these immigrants who are living close to the poverty line were following a trend that is all too common with crime and bad prospects for prosperity. This also includes people who were found to have re-entered the US after being ordered to leave or violating an earlier order to leave the country.

Let’s hope that these negative statistics with both deportation and violent crimes committed by foreigners trends back down in next period and that positive legislative efforts and reforms are made to make the whole US Immigration system fairer for all.

Cj

©2012 E3 Visa. All Rights Reserved.

(also see recent H1B Deportation news)

When a foreign national chooses to visit or stay in the United States on visa status or as a permanent resident, he or she must abide by certain laws and regulations in order to remain in the country legally. If an individual who is not a U.S. citizen fails to abide by these terms, he or she may be ordered to leave the country.

The process of requiring an individual to physically leave the country is known as deportation. If you are visiting the U.S. temporarily or living in the country as a permanent resident, it is important to know the laws that regulate deportation.

Visa Requirements

A person who is visiting the U.S. on visa status must adhere to certain rules and restrictions to avoid nullifying the visa. Some of the key requirements to consider include:

• There are specific visas for different groups of applicants, and a person must keep the same status during their stay in the U.S. in order for the visa to remain valid. For example, a foreign national visiting on a student visa must remain in school to remain in the country legally under his or her visa.
• If the expiration date is approaching for a visa, the applicant must re-apply to remain in the United States.
• An individual may not legally remain in the U.S. if his or her visa has expired.
• A foreign national may be required to return to his or her home country in order to re-new a visa and legally re-enter the U.S.

A violation of any of these terms can be grounds for deportation by the U.S. government.

Criminal Grounds for Deportation

Any non-citizen staying the country may be deported if he or she commits a qualifying crime. This applies to visa holders and permanent residents alike. The criminal offenses that may lead to deportation include the following:

• Crimes against a person (murder, manslaughter, rape, kidnapping)
• Domestic violence crimes
• Sexual offenses
• Crimes against the government (counterfeiting, mail fraud, bribery, tax evasion, perjury)
• Fraud crimes
• Drug crimes
• Firearms offenses

If you have committed any of the above crimes, your legal permit to remain in the U.S. may be nullified and you may be forced to leave the country. The laws and regulations for visas and permanent residency can sometimes be confusing, and it can be easy for a person to accidentally disqualify himself or herself and risk deportation. If you have questions regarding the rules of your visa, permanent residency, or renewing or changing your legal status in the U.S., consider consulting with an experienced immigration lawyer as soon as possible.

©2012 E3 Visa. All Rights Reserved.

The US Immigration Policy on Asylum Seekers is a comprehensive report on the fundamentals of the US asylum policy. Individuals may seek asylum to the US if they are in fear of being persecuted because of their inclusion in a social group, nationality, political viewpoint, race, or religion. Other highlights of the US asylum policy guidelines can be found in this report.

Asylum Proceedings

The two methods for seeking asylum are an affirmative asylum proceeding and a defensive asylum proceeding. Aliens already in the US apply for asylum with the US Citizenship and Immigration Services through an affirmative asylum proceeding. This method entails a USCIS officer to review the application, the testimony of the alien, and the condition of the country the alien is seeking asylum from.

A defensive asylum proceeding is sought through the Executive Office for Immigration Review during a deportation proceeding. If an individual seeks asylum at a US port and expresses a fear of persecution, their application will be considered through the defensive asylum proceeding if he or she is deemed credible.

Aliens seeking asylum must begin apply within one year of their entry into the US unless there is a change of circumstances which can cause the time period to change. Approximately 1,000 asylum cases are allowed in the US per year.

Current policy dictates the distinction between credible fear of persecution and a well-rounded fear of persecution the alien may claim. Credible fear is a significant amount of fear demonstrated by the alien which can be substantiated.

Reasons to be barred from Asylum

Aliens can be barred from asylum because of the following reasons:

• The alien has resided in another country before arriving in the US;
• The alien had participated in any way in the persecution of another person;
• The alien had been convicted of a serious crime,
• The alien would pose a security threat; and
• The alien belongs to a terrorist organization or has engaged in terrorist activity.
Guest Post Author

If you or a family member are seeking asylum, work with an immigration lawyer to have the best chance for your application to be accepted.

©2012 E3 Visa. All Rights Reserved.

The E3 visa itself is on the lower end of complex non-immigrant visas in the US Immigration system in terms of documents, costs, competition, approval process and logistics of actually obtaining the US visa in your passport.

However the US Immigration system is inherently complex and often very unfair and unforgiving, and many people unfairly get caught up in this. Often with the E3 visa this happens at the last hurdle just when an applicant is up to the final stage and attending their E3 Visa US Consulate Interview. Often not fully prepared people are in a manner of speaking ambushed at this juncture and can have their visa application outright denied or almost as bad have it go through Administrative Processing.

Now many people are up to or have gone through their first E3 visa renewal after their 2 year period and others have gone through 2 or 3 visa renewals. Now this E3 visa renewal can be done within the US but the drawbacks with this approach are that it has to be done via the USCIS. This means the process can take up to 6 months but on average for most people seems to take about 1-3 months to be approved. So this requires plenty of planning in advance with your employer if this is to be done.

Unlike the H1B visa where it explicitly states, that a foreigner on this visa can continue working while this renewal application is being process, the E3 does not. This is actually common with the E3 visa in that USCIS directives are that when in doubt it should follow the H1B visa legislation since that is what it was modeled on and is similar too, however as it is not explicitly written in the law, different people give different advice both from the Legal industry and from within the US Government itself! Therefore if you talk to E3 visa holders they will give you different advice and different good and horror stories. Because of this what tends to happen as I mentioned above for those that want to do it wihin the country, they tend to plan and do the application well in advance to avoid any potential immigration issues.

The other thing to note in regards to the E3 visa renewal petition itself with the USCIS is that a new Labor Condition Application approval is needed from the Department of Labor and then a fee is required to be paid to the USCIS for the E3 visa renewal petition which is currently over $300 USD. This differs from doing the application outside the US where the only fee is the US Consulate application fee which is approximately $130 USD.

The biggest drawback other than the cost/time issue with doing the E3 visa renewal within the US is that you don’t actually get a new E3 visa. In fact as far as the US Government is concerned it is not your US Visa that has been renewed or extended it is your US Visa status that has been extended. This subtle distinction which may seem just semantics actually means a lot.

If you were to travel Internationally anywhere after your current E3 visa has expired but you have an approval for extension of E3 visa status from the USCIS, you will need to re-apply again for a new E3 visa at a US Consulate. A vaild and unexpired US visa is needed for re-entry into the US and the extension of status you received within the US just means you can continue working legally and operate as normal but does not give you the new visa which is the only thing that get you reentry into the United States under that same visa status.

So given all that what is the positive change that has recently been made for E3 Visa Renewals and Reissues.

Well for Australian citizens on the E3 visa who;

• Are applying for the same type of visa within 12 months of the expiration of your previous visa?
• Have previously provided a full set of 10 fingerprints at a Consulate during a visa interview?
• Are an Australian citizen or permanent resident?
• Area resident of the Consular district in which you are applying for your visa?
• Where the previous visa approved at the time of the interview without any correspondence from the Consulate indicating your application required further administrative processing?
  and whose…
• Previous visa was not lost, stolen, or revoked;
• Have not changed your name or nationality since the issuance of your last U.S. visa;
• Have not been previously refused a visa or entry into the US;
• Previous visa did not require a waiver of ineligibility (For example: criminal convictions)
• Have had no arrests or convictions (other than minor traffic violations) that have occurred since your previous visa was issued.
• Have no ineligibilities or reason to believe you have failed to comply with U.S. immigration law

So if you could answer yes to all those question you may be eligible to the E3 Visa Renewal and Reissue without attending the US Consulate Interview. It should be noted that you have to present within your designated Consular district within this time and you have to mail the application from Australia and not from the US.

There isn’t any word on the processing time of all this but if they could legitimately receive an application you posted on Monday, on Tuesday. Then take 24 hours to review and to the E3R E3 visa renewal in you passport and mail it back to you by Thursday or Friday that same week, then it could definitely be worth it. However if it takes much longer than this period to process that could effect many people’s plans so we will report back as we find out more and look forward to your feedback and experiences with this process.

CJ

©2012 E3 Visa. All Rights Reserved.

The recent deportation of a number of Indian H1B IT workers from Newark and JFK airports has sent shock waves through the H-1B community. H-1B employers, employees and their attorneys alike are flabbergasted by this brazen act of official highhandedness where individuals arriving on H-1B visas were singled out even before their primary immigration inspection, put through a sham questioning, forced into making coercive statements, issued expedited removal orders, and sent back! Their crime? They landed in the U.S. with legitimate H-1B visas to work for genuine U.S. entities, but at a location other than their office, i.e., at a client site or third party site!

H1B employees working at a client site or a third party site is a practice as old as the H1B program itself, and is not a violation of the regulations when supported by appropriate documentation. What is shocking is that the disgraceful action by CBP inspectors was triggered by an overzealous (mis)interpretation of a recent Memo issued by Donald Neufeld, Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services (USCIS).

At its core, the Neufeld Memo underlines the requirement of an employer-employee relationship that would last the entire period of the foreign individual’s H-1B stay in the United States. In such a relationship the employer should have the “actual” control or the “right” to control the employee, to hire, fire, pay, and to decide when, where, and how the employee will be employed.

Based on the experience of this writer in processing thousands of H-1B petitions over a period of more than 15 years (and attending to the resultant issues), this situation can be addressed with a little foresight, logical planning, and preparation and maintenance of appropriate documentation. Also, H1B employees should be educated on how to answer questions from overbearing government officials. Pardon me for saying this, a small minority of companies, through a lackadaisical attitude towards adhering to the regulations, seem to bring a bad name to the entire H-1B community and to the H-1B program itself, resulting in such sweeping governmental actions that affect legitimate H1B employers and put the lifestyle of unsuspecting employees and their families in jeopardy. Moreover, this supplies fodder to the anti-H-1B bogey that is becoming more and more vociferous in the light of rising unemployment in the United States. We, at our office, always make it a point to emphasize to H-1B employers and employees alike to strictly adhere to the governing regulations and requirements of the H-1B program.

As stated above, the focus of the CBP enforcement action is as to who the actual employer is. It should be noted, in situations where an individual works at a location different from the petitioning company’s office, the question is whether such petitioner employer has the “actual” control or the “right” of control over the H1B employee. When the H-1B employee works at a client site, or a third party site, the H-1B employer may not always be able to exercise “actual” control over the individual’s employment. But to maintain the H-1B status and be in compliance with the regulations, the H1B employer needs to prove the “right” to control, if not the “actual” control. There are various ways to meet the requirements of actual control or right to control, as we have been advising our clients, by ensuring acquisition, usage, and maintenance of appropriate documents. It takes logical planning under effective legal guidance.

In conclusion, we would like to remind our clients and other readers of this article that the government’s enforcement of the regulations can be expected to become stricter in the future, and appropriate proactive steps will save the employers and employees alike a lot of hardship and aggravation.
Guest Post Author

Disclaimer: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.

Copyright: The Law Offices of Morley J. Nair, Inc.

©2012 E3 Visa. All Rights Reserved.

So really this topic is already covered via the above resources but given the large amount of search volume from this query to our site more than anything else, along with many comments, we will do a brief post on the E3 visa process itself.

Step 1: Find an Employer willing to sponsor you
This is of course easier said than done but the crux of this is finding a US employer who is willing to hire you and thus sponsor your E3 Visa. The barrier to entry for this is at least less than the H-1B visa which has certain times of year associated to it, a very competitive fixed quota and large costs. However most employers will not hire someone without at least one face to face interview so there could be expense for you to achieve your goal. Note you can’t apply for your E3 visa as a new visa from within the US or transfer to it from the Visa Waiver Program. You can transfer to it from visa like the J1 Internship visa and F1 Student visa.

Step 2: Apply for Jobs At US Companies
I guess this is really interchangeable with Step 1 or indeed a subset of it. Given the important and uniqueness of this act I thought I would devote a paragraph to it. Of course for a foreigner on the other side of the earth to find a job in the US is some kind of effort and certainly requires some forward planning. Many people come to the US on the visas mentioned above like the J1 visa and F1 visa as a stepping stone to working in the US allowing them time to make contacts and attend interviews while under legal status. However many people do indeed do things like apply to jobs from Australia and then fly to the US and attend as many interviews as they can. Some good general tips are to have a US phone number on your application (i.e. via Skype), try and have a US mailing address if possible and mention visa status on their resume in explaining it to a potential employer. Of course from here the job interview and selection process is generally similar to what people may be used too but note that salary negotiations are a much bigger part of the US process and often begin right upfront. Finally ensure you understand the specialty occupation and bachelors degree provision.

Step 3: The Visa Application process
Once an employer has agreed to hire you and sponsor your E3 visa they need to file form ETA-9035(e) with the US Department of Labor. This is so they can received an approved Labor Condition Application (LCA). This is a free filing and can be done online. Essentially on this form includes details on the nature of the job, the nature of the company, a little on the candidate (i.e. you) and the salary. You should note that the salary has to meet the Department standard for the average salary for that type of role in that region of the country. You would take this document, along with an offer letter from the company to your US Consulate Interview for the E3 visa.

Step 4: The US Consulate Interview
From the link referenced above you can see a detailed account of the US Consulate interview for the E-3 visa. You can do this in other countries like Canada, UK, etc. but of course the most common tends to be at a Consulate in Australia. You should take as many supporting documents as possible including bank statements, asset ownership proof, copy of your degrees and any licenses that may be relevant to your role, etc. One of the things you need to demonstrate is the residence abroad condition. This is basically proof to the US that your ties to Australia are strong and that you intend to return home at the conclusion of your E3 visa period. The more prepared you are for this, the easier and quicker and less hassled it tends to be. You should note that you have to prepay the E3 Visa Application Fee at Australia Post prior to your interview.

So that in short is the E3 visa process but like I said read a lot of the other posts for in depth information and tips about particular aspects and how you can best navigate them.

Good Luck,
CJ

©2012 E3 Visa. All Rights Reserved.

For the past few months, the U.S. Department of Homeland Security, Citizenship and Immigration Services (“CIS”) has conducted an investigation program aimed at visiting H-1B petitioner worksites throughout the U.S. These site visits began as part of the CIS’ goal to decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS’ Office of Fraud Detection and National Security (“FDNS”), published this past September. According to the FDNS’ findings, as many as one in five H-1B applications were affected by either fraud or “technical violations” of the H-1B program.

Why should employers care?
Any employer who sponsored a foreign national worker for an H-1B visa can be subject to an unannounced site visit. What this means is that an investigator can randomly show up at a worksite and demand to see a copy of the H-1B petition, interview the person who represented the company in connection with the H-1B as well as the H-1B employee or other employees presently on site. Any inconsistencies found can mean big trouble for employers.

FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However other sources say that employers are not required to give in to the investigators’ demands without a subpoena. What to do? Our office recommends that you always comply as much as possible with any investigative agency that shows up at your door. CIS has indicated that attorneys can be present during an inspection, but the investigator is not likely going to come back another day if the attorney is not available on the day of the unscheduled visit. Attorneys may be present via telephone in these circumstances.

Some common questions that have been raised by employers include: “how are companies selected to be investigated,” “if I am visited, should I be concerned,” “what type of violations are the investigators looking for,” and “how can I prepare for a site visit from a CIS/FDNS investigator?” To address these issues in order, firstly any employer who has filed an H-1B petition can be subject to a site visit. While CIS claims the employers are chosen at random, close to 40,000 employers’ names have been selected for site visits. Some factors that may have been taken into consideration when selecting these 40,000 employers include: companies with less than 15 employees; companies with less than $10 million in sales; companies less than 10 years old; accounting, HR, business analyst, sales and advertising positions; and petitions where the beneficiary merely had a bachelor’s degree, not an advanced degree.

If your company is visited and your records are in order, you have nothing to worry about. Generally speaking employers are aware of inconsistencies before any investigative agency may catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case may be referred to U.S. Immigration and Customs Enforcement (ICE), or the Department of Labor (DOL) for further investigation depending on the offense. This could mean there will be monetary, and if egregious offenses, possible criminal penalties for the employer.

The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the offenses range from technical violations to outright fraud, with the most common violation being the non- payment of a prevailing wage to the H-1B beneficiary. More specifically, the investigators may be looking for the following types of violations: job location not listed on the H-1B petition and/or LCA; H-1B worker not receiving the required wage; fraudulent H-1B documents or H-1B worker credentials; non-existent business or office location; job duties significantly different from those listed on H-1B petition/LCA; misrepresentation of H-1B status by the H-1B worker (e.g., had been terminated from previous H-1B position prior to new employer H-1B being filed); and H-1B worker paid the $1500 ACWIA fee.

How can you prepare yourself and your company for a possible site visit? Step one is to ensure that you have Public Access Files (PAF) for each H-1B worker, and that the PAF documents are accurate and up to date. In general, it is a good idea to review and audit your H-1B/LCA records to make sure everything is in order and all information is readily available. Designate a specific individual at each H-1B worker location to meet the investigator should he/she arrive. Prepare a quick list of facts about the company and also a listing of H-1B workers, work locations, title and salary information so you don’t need to search frantically for this information while the investigator is there. If you are not sure what a PAF is, or if you’d like to have your documents reviewed by legal counsel, you may contact our office at the number or e-mail below.

©2012 E3 Visa. All Rights Reserved.

The latest USCIS update for the quota was released on November 6, where the reported receiving 54,700 H1B visa petition filings on top of the already 20,000 approved advance degree cap exemption filings. The annual quota is of course 65,000 for the main group so there is still at least 10,000 visas available and probably a fair number more as many of the H1B visa petitions will be denied or revoked.

The other major update the USCIS released for the H1B visa for November is that due to the Department of Labor (DOL) having a major backlog and delays with certifying and issuing the approved Labor Condition Application (LCA) which is need prior to filing the H1B visa petition with the USCIS.

For the next 120 days from November 5 2009, through March 10, 2010 (or whenever the cap is exhausted), the USCIS will accept H1B visa petitions even without the approved LCA from the DOL if it has been filed at least 7 days prior to sending the petition to the USCIS. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA to prove this when filing with the USCIS without the approved LCA.

Following this H1B visa applicants and the prospective sponsor employers who make use of this temporary flexibility in the normal filing procedures for H-1B visa petitions must wait until they receive a request for evidence (RFE) before they submit the DOL approved LCA to USCIS in support of the H-1B visa petition.

The USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE.  Ultimately the USCIS will only approve H-1B visa petitions that include certified approved LCAs.

The most interesting thing has been since the October 1 (i.e. the start of the new US Immigration year), the rush of applicants and companies filing for the H1B visa meaning the job market is seeming picking up for college educated folks despite the 26 year record high 10.2% unemployment rate nationally.

Actually if you look at the following NY times interactive chart for unemployment you can easily see how not all groups are effected equally and the market for laid off H1B visa workers, F1 Student visa graduates and foreigners wanting to work in the US in general may be looking up finally

Good Luck,
CJ

©2012 E3 Visa. All Rights Reserved.

This post is particularly helpful for the K1 Visa for Fiances and K3 Visa for Marriage.

If you or your spouse/fiance are applying for a green card in the United States, you will undoubtedly participate in the green card interview. This famously strict and regimented process is where a USCIS consular officer asks the newly-wed, or soon to be wed, couple a series of questions. This is something you will need to be prepared for in several ways, not just in the consistency of your answers but ensuring you are providing all the requested documentation. By arming yourself with knowledge and learning as much as you can about the process, you will become more comfortable with the fact that the USCIS is going to dig deep during this question and answer session.

A big part of understanding the green card interview is having a glimpse of the types of questions you will be asked. Of course there is no set number of questions or any specific questions that can be studied. Mostly it will be based off of each individual circumstance with the focus on your relationship and living situation. These will get personal so rule number one is keep an open mind. Some of the question categories may consist of the following:

1. The plans you and your spouse or fiance have for the future
2. Detailed questions regarding the veracity of undergoing the green card process
3. You interests, hobbies or pastimes that you enjoy
4. How you met your spouse or fiance
5. Your work history and current work situation
6. Just about any question pertaining to your life and your relationship

The USCIS consular officer’s main goal is understanding your relationship and working to ensure the marriage is valid. The questions they ask may not seem to have any rhyme or reason, but it is an effort to ensure there are consistent answers from both partners. These questions will get very detailed regarding your personal relationship. Remember that the green card interview questions are in place to ensure no one is abusing the system. Simple inconsistencies or dishonesty are what the consular officer is trying to uncover during your interview.

If you or your spouse answer questions posed during the green card interview in a contradictory way, the consular officer may become concerned and may ask even more pointed questions. It is critical to answer every question as honestly and openly as possible; being deceptive can backfire in a really big way. When you apply for a green card, you are making a promise that the marriage you’ve entered it to has been done in good faith. The INS works to protect its interests – and the interests of the United States government – by weeding out situations where a marriage has been entered in to strictly for the purpose of getting a green card.

Not only do you want to ensure you are answering all questions honestly and openly, you want to be prepared with all the right documentation. Part of the green card interview questions may be focused on asking for specific documents. You should have received a request for documentation when your interview was arranged. These documents are critical to bring with you on the day of the interview. Please be sure to review this list as often as you can and certainly prior to your interview that day. Failing to provide just one of these requested documents can cause major delays in your application for a green card and may even place your chances of getting a green card in question.

Of course, each individual is different from the next, but there is a general list of the types of documents you may be requested to bring with you on your interview day. It is always a good idea to be thorough and check with your local office as well. This way you can be sure one, you understand what you need to bring and two you double check your appointment date and time. The common items requested for the green card interview are:

1. Your green card appointment letter
2. Your passport that will be valid for at least the next six months
3. Alien registration form DS-230 and your application for green card
4. Birth certificates
5. A marriage certificate, if applicable
6. Divorce certificates
7. Two front view – and recent – photographs
8. Any relevant USCIS documentation
9. Death certificates

The best idea to ensure that you are completely ready for your interview is to create a checklist. On it, list all of the documents that you must bring and check them off as you compile them. Include some of the sample questions that might be asked, and practice answering them before going to your interview. Be sure to go through the checklist with your spouse or fiancee to ensure that the two of you are completely ready for the big day.

Guest Post Author Information:

©2012 E3 Visa. All Rights Reserved.

As with the H1B visa and L1 visa, petitions and forms have to filed and approved at the USCIS and Department of Labor and with the E3 visa at the Department of Labor only, so a lot of the vetting has already been done. Then of course employers if they are planning to go through the time, expense and hassle of hiring a foreigner, they themselves are going to make sure most of the time, that the employer is a legitimate candidate with relevant experience and qualifications.

So going to the US Consulate interview, while in many ways seeming like a big deal to the candidate because of the formality, seriousness and security of the process, ends up being just a routine with at the most and most a few hours wasted in the room waiting. Therefore actually getting the E3 visa or H1B visa stamp in the passport is the last step in the process before flying to the US to begin their new career.

However for some unfortunate candidates it is not so simple and the process at the US consulate takes a lot longer under the title of “administrative processing” under condition 221(g).

For a few of this group it is partly or fully their own fault as they have forgotten documents they were supposed to bring or to pay relevant fees. Usually in these instances, it just requires another US consulate visa appointment or even a quick dash out to get things and pay the relevant costs, returning the same day to continue the interview albeit with going to back of the queue.

Also in some instance people have lied about their experience, qualifications and/or circumstances and/or their employer has to some degree and this is noticed or suspected by the US conular officer. In these cases the administrative processing that follows will ultimately result in a visa denial or occasionally and instant denial at the US consulate.

(To Note visa like the F1 visa or J1 visa tend not to have this issue. Of course you can still be denied for these visas, but it tends to be instant at the US consulate as the USCIS is generally not involved in these petitions)

However in most cases the “administrative processing” or condition 221(g) is a lot more grey and is often as a result of a very particular case officer hesitation due to some aspect of the application. These can include;

1. Unsure about the company as never sponsored a foreigner before and/or is a smaller organization or possibly operates in an industry field not usually associated with the professional work visa like E3, H1B and L1
2. Unsure about the job offer as it sounds like a non-professional or specialty role which may not require a bachelors degree not usually associated with the E3 visa, H1B visa or L1 visa
3. Unsure about the candidate as either their something amiss about their qualifications and experience and how it relates to the role they are about to fulfill or about their personal background from a security/character/criminal standpoint or for the E3 visa whether they intend to return home
4. Unsure about the nature of a dependent on the visa petition

The problem is at this point if a candidate receives a letter or notification under “administrative processing” 221 (g) that they lose complete control over the process. Whether their case will take a 1 week or 4 months is really dependent on the individual US consulate, what the backlog is at the time, mailing times, whether the processing will happen locally or be sent back to the US, public holidays and of course the nature of the individual case.

Additionally in most instances there is no way to get extra information until the US consulate contacts you with an update or request for more information or in any way to find out how long the process is going to take. This of course can complete ruin a potential work position, as many employers in the US are unlikely to hold open a role indefinitely with no guarantee of success or timeliness. Then of course individuals and families have also no doubt made travel plans and paid costs and begun to wind down local life so can cause a lot of heartache and financial pain as well.

This is a clear example of the US Immigration system for Legal Immigrants being completely unfair and in need of complete reform. However in the new immigration laws proposed by members of congress, things like this are never discussed as that would be too practical and not score any political points! This aspect and many like it is why the Legal Immigration mess feeds into and causes Illegal Immigration problems for the US.

Sometimes US consulates when required don’t even send the “diplomatic pouch” which carries the case documents back to the US straight away and collect other cases from their particular US consulate and others in the area or country prior to sending it back. This of courses further delay along with the fact the USCIS who re-process these cases often view this as low priority cases to evaluate.
In truth this process should only be used sparingly by US consular officials as in many cases just duplicating work already done by other US Government agencies as well as the Private employer.

I wish I could give more hope and insight to the process for people in this situation but it is a veyr mysterious process and this is all that is really known about it. All I can hope is that you never be subject to condition 221 (g) and administrative processing!

CJ

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