Issue of 221(g) and Other Delays for H-1bs in India

H-1b fraud is rampant in India, and is one of the most falsified visas in India. Many Indian H-1b cases require site visits, as it is necessary for officials to authenticate H-1b applicants’ experience letters due to applicants fabricating employment. According to the India Biannual Fraud Update, 2009, the city of Hyderabad, in Andhra Pradesh, India, is a center for counterfeit documentation in educational qualifications, experience letters and nonexistent companies. Worldwide there are 300,000 H-1b applications that are filed, 100,000 of which that are adjudicated in India.

According to the Fraud Update, Hyderabadi applicants make up over 30% of the consulate’s visa workload. In the first three months of H-1b assessment, the Consulate General of Hyderabad detained and prosecuted multiple vendors on the basis of falsified documents. Some Hyderabadi applicants even tried to submit their applications through the Mumbai Consulate by alleging that their employer was in Pune, which is in the jurisdiction of the Mumbai Consulate. Applicants often used these shell companies so that they could change jurisdictions and avoid applying through the Chennai consulate.

The 2009 Fraud Report enumerated high volumes of fraudulent documentation, namely in education degrees and experience letters. Since then, India has been on high alert and visas are being re-adjudicated—reexamined based on evidence presented by the beneficiary at the interview. It was discovered that H-1b applicants who did not meet minimum education qualifications were being approved for H1B visas. In Hyderabad, India, when the applicants’ experience letters were investigated through site visits to verify the existence of 150 companies, 77% of these employers turned out to be fraudulent. The outcome of this fraud report has led to a higher number of requests for evidence in the US, and a greater number of applicants being sent into administrative processing by the consulates for both H-1b and L-1b visas. The Chennai Consulate has hosted a worldwide H and L fraud conference, which has been attended by, amongst others, Department of Homeland Security (DHS), Kentucky Consular Center (KCC), and multiple posts that adjudicate a number of Indian H-1b applicants.

In other words, the outcome is that even if you have an approved H-1b, there is a 27% chance worldwide of being re-judged, reexamined and re-adjudicated by an officer at the consulate. At this time, there is no deference being accorded to approvals by US Citizenship and Immigration Services (USCIS) of H-1b applications. The H-1b visa holder who has been approved in the US, either through change of status, extension of status, or change of employer, now faces a prospect of going through another judgment process. At the consulate, the H-1b visa applicant is either given a visa stamp of approval in their passport or given a notice under Immigration and Naturalization Act (INA) 221(g). Or worse yet, the applicant is denied.

A 221(g) notice will generally ask for more documentation from the employer and from the employee, and for documentation that demonstrates an employer-employee relationship between the two. H-1b applicants must establish the existence of an employer-employee relationship with documentation that demonstrates that the requirements of experience and employment have been met. Among the various documents required by the consulate are petitions of tax returns; petitions of employees; state tax returns; employee’s work itinerary; a detailed account of the development project that the employee is working on; and academic credentials.

Under the US Department of State (DOS), Foreign Affairs Manual volume 9, FAM 41.53, Congress is given the authority to determine whether the alien meets the required qualifications for “H” status. This approval, in general, is to be considered prima facie evidence that the employee has met the requirements for H visa classification. According to 9 FAM 41.53 N2.2, “DOS does not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.” On the other hand, even if DHS approves the petition, this does not relieve the employee from establishing that they are eligible for the visa at the visa interview. New information could be made available to DOS during the interview, which could determine whether the consular officer should or should not approve H status without additional evidence. This evidence should bear a reasonable relationship to the issue, but the consular officer should not reconsider the petition because of legal or factual disagreements with DHS. In fact, 9 FAM 41.53 N2.2 states that, “By mandating a preliminary petition process, Congress placed responsibility and authority with DHS to determine whether the alien meets the required qualifications for “H” status. Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” These are the specific directions to DOS consular officers to accord deference to USCIS decisions. Yet, in a knee jerk reaction to the 2009 Fraud Report, it appears that far more petitions are issued 221(g) notices, demanding more documentation despite apparent bona fides established by the visa applicant and employer.

Further, Regulation 9 FAM 41.53 N2.2 also authorizes consular officers to process applications that appear legitimate; identify applications that require local investigation; and identify applications that require referral to USCIS for reconsideration. To avoid inconveniencing petitioners and beneficiaries, and causing duplication by DOS, the consular officer must have specific evidence of a requirement of automatic revocation of the visa; misinterpretation in the petition process; a lack of qualification on the part of the beneficiary; or if other previously unknown facts come to light that might alter a USCIS finding of approval.

When a consular officer seeks reconsideration of previously approved USCIS petition, the consular officer sends the application to KCC with Form DS-3099. The consular officer includes pertinent documentation, or a written memorandum of evidence supporting the request for reconsideration. KCC forwards the request to the approving USCIS office; then KCC scans the request and all the supporting documents to Petition Information Management Service (PIMS). KCC maintains a copy and tracks consular revocation requests. USCIS reconsiders the petition and sends back an approval or denial. This process may take several weeks or months.

The effect of this delay is that employees who are currently employed by US companies on various projects, and who are spending their vacation time with friends and family abroad, are now delayed 3-6 months in their home country. US companies are scrambling to fill those unexpected vacancies; there is a huge loss of revenue and profitability for US companies in the US. Consular officers often reject H-1b petitions based on an erroneous belief that given the high rate of unemployment in the US, those positions filled by the H-1b visa holder should actually be filled by a US citizen.

There is also a belief that US employers want to employ H-1b visa holders instead of US citizens — that US workers are fired so US companies may hire foreign nationals on H-1b visas who may work for lower pay. This is not true. Under current statute and regulations, H-1b visa holders must be paid the higher of the prevailing wage or the actual wage paid to US citizens in similar employment. In fact, every US employer attests to this fact when they file for Labor Condition Application (LCA) certification with the Department of Labor (DOL). US companies pay approximately $6,000 in additional legal and government imposed fees when hiring an H-1b visa holder.

Offsite working is a common practice in the computer industry. Large US companies in the business process consulting industry employ foreign nationals, and place these H-1b visa holders at customer work sites in order to design, build; and deliver business driven technology solutions that enable customers to get a competitive advantage in their market place. Due to the nature of the products and services offered by these US companies to its clients, it is necessary for US employers in this particular industry to provide its products and services directly at the customer’s location. When consular officers see a beneficiary of an H-1b visa not working at the employer’s offices but at a third party location, the immediate reaction by a consular official is to require the H-1b applicant’s employer to provide documentation of employee-employer relationship —- the right to control and the actual control. This requires both employer and employee to provide tax documentation, employee payroll, state tax payroll, contract letters, agreements with customers, and signed employee benefit manuals. It apparently does not matter that some or all of this information may be either confidential or proprietary to the US employer and their customer. Employers are between a rock and a hard place; between disclosing too much private or proprietary information, and risking a denial if these documents are not provided.

To counter these issues presented to and by consular officers, employers and employees should follow the subsequent list of Best Management Practices (BMPs) for adjudicating while applying for H-1b visas.

As an employee, you should avoid traveling outside the US; it could be detrimental to the status of your H-1b. If you must travel, you should notify your employer and attorney and wait for consent, an application review and an update by your immigration attorney, before traveling abroad. Your DS-160 Form should not say “unemployed” while you are not working for your employer. Obtain a vacation letter from your manager.

In terms of the application, the beneficiary should be aware of what the company says about him or her. The beneficiary must have supporting evidence that proves he or she has the skills and expertise to do the job. The beneficiary should also know the organizational framework of the company, and know how education and experience qualifications make him or her eligible for H-1b. If the beneficiary has been with the employer for over two years, then it is wise to begin the Labor and Green Card process and fill out an I-140 Form. Before submitting the H-1b application, make a full copy of the petition with all the supporting documents and study the original H-1b application. Be prepared to answer questions that are not within the scope of the application. Remember to dress business casual, and do not be modest about your accomplishments.

As an employer, the support letter should describe the company’s product, and the employer must ensure that the application meets the criteria of a US company. The employer must identify job duties, qualifications and experience for employees; and that the employer is the source of tools and knowledge for the job. The employer must prove that he or she manages the employee, and has the authority to delegate supplementary tasks and hire and fire, as well as review employee performance and furnish company benefits. Evidence should support the fact that the employer pays employees’ wages, and pays federal, state and local taxes on the employee’s wages. The employer must show that he or she claims the beneficiary as an employee on tax filings. The employer must also provide employee records, corporate tax returns and payroll for employees. In addition, companies must ensure that any publicly available information about their business is accurate. Consular officers either check Vibe or perform a quick search online about the company.

Please contact Mahadevan Law Office if you have any further questions.
Phone: 314-725-9958

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012. All rights reserved.

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