H1-B denied and Issued 221(g). Refile?

USA
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1

Hi Anil - looking for some advice so would appreciate it if you could share your insights. I had my H1-B Visa interview in Chennai on 20th Nov, 2019 and was denied a visa and issued 221(g).

Case background:

  • Completed my Masters in the US in 2016. From 2016-17 worked for one employer on OPT and switched to current employer (US Big 4 Consulting co.) in 2017; was on STEM OPT from 2017-18
  • Employer filed H1-B petition in Apr 2018 and was picked up by lottery so status changed from F1 to H1 in Oct 2018
  • In the intervening time between Apr 2018 (when petition was filed) and now, I received a promotion - so title change to Manager (from Senior Consultant) and my salary increased by about 15% vs. the info in petition.
  • I’m currently on an internal role (so not deployed at client site) but unfortunately couldn’t get a signed off JD from the company on the current role in time due to delays at the company
  • While going through the original I-129, I also saw the client letter that the company gave in the original petition,filed in Apr 2018, was for a project that I was not a part of so not clear why they’d do that

Interview :

VO: Hello - may I have your passport?
Me: Good morning hands over passport
VO: Client letter and I-797 please
VO: Any intermediate vendors?
Me: No
VO: So what is your your role on the project?
Me: I’m currently a Strategy Manager. Its an internal role that I’m staffed on for the time being.
VO: So you’re not on this client project
Me: No
VO: Do you have a document that outlines your current responsibilities?
Me: Unfortunately I couldn’t get it in time for the interview realized this was beginning of the end
VO: Whats your salary
Me: Currrent Salary (which is different from what was in the petition filed almost 1.5 years back)
VO: What course did you complete?
Me: Masters in Ind. Engg.
VO: When did you graduate
Me: Jan 2016
VO: What status were you on
Me: F1 since I had OPT for 1 year (and the eventually STEM extension for 2 more)
VO: Have you ever been out of status?
Me: Never
VO: Married? Spouse status?
Me: Yes - H4
VO: Any children? US Citizen?
Me: Yes child is US Citizen
VO: I’m unable to issue a visa currently. Please respond back with the information requested in this form.

Issued a Blue 221(g) where I’m asked for:

  1. Description on role on current project
  2. Information on projects that I will be deployed on for the duration of the petition (till Aug 2021)
  3. W-2s from last 2 years

While I feel I clearly screwed up by not being fully prepared for this, I wanted to check if anyone has any advice to offer. I’m currently working with my employer to figure out next steps and I understand that replying to the 221(g) is like a black box with no clarity on when it will get resolved (7days -17 months) so wanted to check:

  1. Any general advice on the situation?
  2. Any suggestion on having the employer re-file the petition with updated info on title/salary/projects?
  3. Would re-filing be a better solution i.e. do not respond to 221(g) for now and refile with premium processing or do both in parallel?

Thanks in advance for your help

2

Hi @SS1452

The first thing to note is that if you started working for an internal project, then, you should have filed an H1B amendment.

You need to understand that you can only for work for the job + location + client that has been mentioned in your H1B approval. So, clearly, this is counted as a violation.

At this time, you can submit the requested documents and file H1B amendment in parallel.

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3

Thanks a ton @Anil.Gupta for the swift and very helpful response; deeply appreciate it!

Had a quick follow up:

  1. So if amended petition is sent and accepted, my next step would be to schedule an interview with the Consulate like before, correct?
  2. What impact would the 221(g) response have on my petition i.e. would it need to be accepted first before I can move ahead with interview etc.?

I’m trying to figure out what would the process ahead look like once a path is decided and the linkages/dependency between 221(g) processing and amendment to petition routes.

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4

Hi @SS1452

Once you have the approved amendment, you will need to file a new visa application.

The current form 221g can continue and visa officer will take decision based on your current application details and what you spoke in the interview.

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5

Got it - thanks again @Anil.Gupta for the helpful response :+1:

6

Just wanted to drop a follow up post after my H1 visa was refused and 221(g) was issued at an interview 2 months back. My company responded and provided 2 out of the 3 things that the VO asked for in the 221(g):

  1. My Job Description (which was pretty much a copy paste from the initial H1 petition) and

  2. My W-2s.

  3. They did not provide the detailed itinerary of the projects that I would be staffed on for the duration of the petition (because they’re in no position to predict where I will be staffed).

Surprisingly, the consulate ended up accepting the response and issuing a visa within 2 weeks of sending the response.

Timeline:

Nov 20 : Interview - 221g issued
Dec 18: Response sent by employer to consulate (Took 1 month; very inefficient internal processes)
Dec 27: Passport requested by consulate
Jan 6: Visa Issued

I maybe mistaken but looks like the USCIS is adopting double standards for US companies over Indian companies.

This situation worked out in my favor since my employer is American but someone else in my situation from an Indian IT org probably would have faced a more difficult scenario (since the 221g response that my employer sent was incomplete and rehash of existing information).

Anways, thanks @Anil.Gupta and others for your inputs;much appreciated.

7

Hi @SS1452

Thanks for sharing your experience.

I guess I would agree with your analysis. There is no one standard. They are changing their own decisions with each case.