Once a H1b petition is approved, the H1b beneficiary can continue to stay in USA if a H1b approval is issued with an I-94 and H1b is listed as the status. Such approvals are issued with I-94, for change of status to H1b or H1b transfer or H1b extension. But there are instances, when an I-94 is not issued. It could be either that the H1b employer opted for consular processing or the H1b employer’s request for H1b extension or change of status was not granted. In such situations, the H1b approval will clearly state that the H1b beneficiary cannot work pursuant to the approval and will have to apply for a H1b visa in a US Consulate abroad. The approval will clearly list the US consulate. Does it mean he has to go to the same consulate listed! No. The H1b beneficiary can go to any other US consulate as far as the US Consulate has some relation to the H1b beneficiary like it is the home country or H1b beneficiary is travelling to a particular country or he is temporarily residing in a particular country. For example an Indian national can go to Singapore if he is temporarily working in Singapore. One can also go to neighboring countries like Canada or Mexico for H1b stamping. If you are from Asia but travelling to Europe you can also apply for H1b visa from any of the US Consulates in Europe.
Once the H1b visa applicant goes online and submits a non-immigrant visa application he will have to appear for an interview unless he qualifies for Dropbox. Post Covid, most of the H1b visa applicants who had H1b visa in the past qualify for Dropbox. But remember that because you qualified for Dropbox your visa stamping is not guaranteed. US Consulate often issues 221(g) notices which will ask for additional documentation. Many times, US Consulate requests for same documents which were part of the H1b filing. Again, they will give you two options. Either submit the requested documents by Dropbox or appear for a personal interview. There are also some cases where no documents are requested by the US Consulate and only information you will get is that your case is under administrative processing. Basically, your case is in limbo or went into the administrative black hole. So, what do you when you are such a predicament? You can contact the US Consulate in the timeframe they have stipulated on how often you can contact. It might also help if your H1b employer writes to them and let US Consulate know how crucial you are to their success and how they will suffer financially without your presence in USA. These administrative processing situations are especially tough on H1b employees who are residents of USA and went on a trip to their home country. Many times these H1b applicants own home, kids are US citizens and they attend schools and they have vehicles. Basically, these visa applicants are stuck abroad and cannot move back to USA, which they call home. I should not fail to mention that you have any urgent issues to take care off like moving things in your house or selling things you can apply for B-2 for the limited purpose of winding down you affairs in USA.
What ultimately happens to such 221g cases? Sometimes, as we said, it is in a black hole and nothing happens in many cases and the H1b approval itself would have expired because of lapse of time. Very unfortunate but it happens often. For the cases which sees the light at the end of the tunnel, the US Consulate will write a consular report to the USCIS and USCIS will take their own sweet time and send a Notice of Intent to Revoke(NOIR). But unfortunately, by the time a USCIS officer picks up the case to send a NOIR the H1b would have expired. So, should you wait for eternity for a chance to get back to USA? No. Start developing an alternate plan. Afterall, dealing with Department of State or USCIS is like playing Chess. You always develop your openings well and try to play with all pieces. Based on the interview you need to figure out what exactly triggered the 221g? You can come to a fair conclusion based on the interaction you had with US Consular officer or based on the H1b documents itself. May be the H1b petition did not state in clear terms what client or project you are going to work on. Or maybe the H1b employer lacks good track record which made the US consular officer suspicious. You assess the situation and then file the H1b through another employer who has a good track record and list out in great detail what work you will be doing including Statement of Work, Purchase Orders etc. Most of the time the US Consulate suspects if there is actual work for the H1b beneficiary and if you cover this issue in the filing, the US consulate has less reason to issue a 221g. Read our prior blog on this topic of filing a new H1b while your H1b is pending because of 221g administrative processing.
Many times, it also helps to speak with an Immigration Attorney before attending a US visa interview. An Attorney can give important tips after going through the H1b petition on how to answer certain questions relating to the H1b petition or address some issues pertaining to prior jobs or any status related issues.
So, I will say, don’t wait for the 221g issue to be resolved if it remains pending for a long time. Just find a good H1b employer and get your H1b filed under consular processing. Make sure you have a client assignment, if a consulting firm is filing the H1b. If a product company is filing the H1b make sure enough information/documents are provided about what the company does, product details and what is your role in the company. If you are one such visa applicant stuck because of 221g, we are sorry for your plight. But don’t lose hope and start talking to other employers and get your H1b filed again. Just the fact that you had 221g in the past or present does not mean that you will get another 221g. Every application must be reviewed by officer on merits. As far as the prior 221gs were not issued because of any fraud or misrepresentation attributed to the you (H1b beneficiary), you can rest assured, you have a good chance to get the H1b visa stamped if the case is presented in a strong way to USCIS since US consulate gets a copy of the petition and US consulate relies a lot on the H1b petition papers when it comes to availability of work. We wish you the very best if you are stuck in 221g and we hope you can soon come back to USA to resume work and start leading a life with your family and friends.
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