Responses to 221(g) letters
When a petitioning company becomes the focus of an immigration investigation, often one of the first outward signs of compliance problems is that its employees will be issued vague letters from the consul citing "inadequate evidence to support issuance of the visa" under Section 221(g) of the Immigration and Nationality Act. This is often a stall tactic for the Department of State while it requests revocation of the approved visa petition based upon new evidence of fraud or ineligibility that might have been developed since the petition was adjudicated. Delays can drag on for months, until after a year the consul will finally cancel the visa application. This letter is also a way of gathering additional information.
Many visa applicants will respond with confusion and personally contact the consul in an attempt to find out the basis for issuance of the letter. Consular staff generally will not reveal information to the beneficiary that is relevant to an ongoing investigation. While consuls are under no obligation to give details on investigations to visa applicants, statements made by applicants can and will be used as evidence against them and the petitioner.
In such an instance it is essential for an attorney to make a formal inquiry to try to determine the reason for the 221(g) letter and:
- whether this is a matter that can be resolved simply by providing additional information; or
- if the consul suspects fraud, what the basis for that is and how best to address the issues.
US Citizenship and Immigration Services (USCIS) makes no secret of the fact that it is standard operating procedure for US consulates to issue a 221(g) letter when the Department of State has requested that USCIS revoke an approved immigrant visa petition. To this effect, USCIS posts the following advisory on its website:
"The most common types of immigrant visa petitions . . . may be revoked at the discretion of USCIS upon notice or, under certain prescribed circumstances, automatically.
If a DOS [Department of State] consular officer discovers during the course of a visa interview that the underlying petition should not have been approved, or is no longer approvable, the petition may be referred back to USCIS. In such cases, the returned petition should be accompanied by a memorandum explaining the reasons the approved petition should be revoked…
When a consular officer returns an immigrant visa petition to USCIS for reconsideration and possible revocation, he or she will typically deny the visa application on the basis of INA section 221(g) (temporary refusal of immigrant visa), pending USCIS review of the returned petition."(1)
Beyond an inquiry to the consul, what else can counsel do? If the attorney has reason to believe that a visa has been returned to USCIS (consular officers will sometimes reveal this), counsel should immediately contact the director of the service centre that did the initial adjudication, as that office will have to make its own determination about revocation or take other steps to intercede with USCIS.
If the petition is returned and USCIS determines that there is sufficient evidence, it will issue a notice of intent to revoke. According to USCIS:
"The [notice of intent to revoke] will explain the reasons the approved petition should be revoked and will give the petitioner a reasonable period of time to submit evidence to show why the petition should not be revoked. The petitioner must respond within the time allotted. An extension may be granted at the discretion of USCIS if the petitioner needs additional time to obtain documentation from abroad or for other meritorious reasons; however, the petitioner must respond in a timely manner to the NOIR by the stated deadline, and provide a reason for requesting the extra time…
If the petitioner does not overcome the basis for the revocation, or fails to timely respond, a decision of revocation will be issued to the petitioner on Form I-292. The petitioner may file an appeal on a decision to revoke a petition just as if the petition had been denied originally."
At the end of a visa interview, an applicant who has been refused a visa or whose visa issuance is delayed pending "administrative processing" will be handed a pink or a blue sheet by the consular officer.(2) Those who receive a pink sheet must take further action to respond to the request stated on the form. Usually, the response required is to provide specific additional documents. The chances are that a full response which includes the documents or information indicated will result in the issuance of a visa.
Applicants who receive a blue sheet are told that they must wait – that is, a 'don't call us, we'll call you' response. In blue sheet 'pending process' cases, the consulate makes it clear that it does not want to be contacted in any fashion by the visa applicant. Where the consul has made a clear error on the application, or it involves an issue that can be taken care of by the attorney, the attorney should contact the US consul directly. Letters of inquiry on law firm stationery will receive a response.
For further information on this topic please contact Rami D Fakhoury at Fakhoury Law Group PC by telephone (+1 248 643 4900), fax (+1 248 643 4907) or email ([email protected]).
(1) See USCIS, "Immigrant Visa Petitions Returned by the State Department Consular Offices".
(2) Although this process applies to the US consulate in Chennai, the terms and procedures are commonplace at Indian posts and will often also apply at other US consulates around the world.