Upon approval of H-1B petition by the USCIS, 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 from 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. Further, a Consular Officer may determine that the application does not comply with the INA or regulations. 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 …).”
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, it can be formed through hearsay evidence.
In certain cases the final determination about visa can be placed 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). The same FAM guidance counsels Consular Officers not to reveal to visa applicants the specific reason for administrative processing in a given case.
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, it is very difficult to confirm this statement. 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 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