The Rise of Administrative Processing at U.S. Consulates in India and China

Since January 2018, our firm has seen a sharp increase in administrative processing for U.S. visa applications at consulates in India and China. This has caused significant delays in visas being approved and has resulted in foreign nationals spending an additional three weeks to two months in the country of the visa interview, as opposed to the typical two weeks.

According to the Foreign Affairs Manual (FAM), administrative processing “should be used to refer to clearance procedures or the submission of a case to the Department.”[i] There are three possible scenarios that could lead to a visa application undergoing administrative processing. These include national security, the Technology Alert List, and further consultation.

 

Administrative Processing for National Security Reasons

Prior to the visa appointment, each visa applicant will have her biographical data scanned in various national security databases. The results from these scans are available to the consular officer at the time of the visa interview. If the consular officer notices a “hit” on one of the databases, indicating that there is potentially adverse information about the visa applicant on a watchlist, then the consular officer “must “clear” the hit by seeking confirmation that the person applying for the visa is not the same person on the watchlist.”[ii] Once the hit has been cleared, the consular officer should approve the visa and change the administrative processing report on the Department of State’s online visa portal to say “visa approved”.

 

Administrative Processing for Technology Alert List Reasons

Visa applicants, especially those engaged in STEM professions, may also have their visa applications subject to administrative processing because their professional activities triggered concerns about the Department of State’s Technology Alert List.[iii]

“Technology Alert List: Administrative processing can be the outcome of certain visa applications…where the applicant’s intended commercial or academic activity triggers concerns about the possible illegal transfer of technology as defined in the Technology Alert List (TAL)….When a consul encounters an applicant who intends to pursue activities in one of the areas included on the TAL, the consul must submit an inquiry on the matter to DOS for a determination of whether the risk is significant enough to require visa denial.”

Once the consular officer has received the determination from the Department of State and the determination indicates that the visa applicant does not warrant risk significant enough to issue visa denial, the consular officer should approve the visa and change the administrative processing report on the Department of State’s online visa portal to say “visa approved”.

 

 

Administrative Processing for Further Consultation Reasons

The Department of State may also initiate administrative processing on a visa application because it requires “further consultation”. This provides a “catch all” explanation for why the consular officer has delayed the visa application and offers the consular officer a wide discretionary berth in the visa application process.

“Further Consultation: A consular officer can advise an applicant that further “administrative processing” is required in his or her case if the consul believes that there are circumstances that require further internal consultation within the mission or with DOS. In such cases, it is not the existence of a lookout hit that triggers the decision, but other circumstances that either have arisen during the interview or are based on information in the record that makes it impossible to render the decision at the completion of the interview.”[iv]

In these situations, sometimes the consular officer asks for additional information from the visa applicant about her job, education, or plans in the U.S. The information should be provided promptly and thoroughly. Once the information has been received and reviewed by the consular officer, the consular officer should approve the visa and change the administrative processing report on the Department of State’s online visa portal to say “visa approved”.

 

Wait Times for Administrative Processing

When a visa application enters administrative processing, it means that the visa applicant will be delayed in the foreign country. The length of the delay depends on the type of administrative processing, the work volume of the consulate, and the readiness with which the visa applicant provided requested additional information (if applicable). According to the Department of State, most administrative processing is resolved within 60 days of the visa interview.[v] Our firm has seen administrative processing take between three weeks and 60 days, with the longest waits in India. Visa applicants, especially those applying in India and China, should be prepared for administrative processing to delay their case.

 

Our firm will continue to follow this development closely. If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

 

This blog is made available by the The Immigration Group, PC for educational purposes only in order to give you general information and a general understanding of the law, not to provide specific legal advice. For legal advice, please contact an attorney directly.

 

 

[i] See 9 FAM 601.7-4, Content of Written Correspondence, available at https://fam.state.gov/FAM/09FAM/09FAM060107.html.

[ii] Pattison, Stephen R. and Andrew T. Simkin, “Consular Processing in India,” The Consular Practice Handbook, 2012 Ed., AILA, June 2012. http://agora.aila.org/Product/Detail/37.

[iii] See Technology Alert List, available at http://www.bu.edu/isso/files/pdf/tal.pdf.

[iv] Pattison, Stephen R. and Andrew T. Simkin, “Consular Processing in India,” The Consular Practice Handbook, 2012 Ed., AILA, June 2012. http://agora.aila.org/Product/Detail/37.

[v] Administrative Processing Information, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/administrative-processing-information.html.

 

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

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USDOS Announces April Priority Dates For Filing Permanent Residency Applications

The following priority dates determine whether an applicant may file for permanent residency during the month of April 2018.

Category Country of Chargeability Priority Date Comment
EB-1 Worldwide Current Unchanged
EB-1 China January 1, 2012 Retrogressed 74 months
EB-1 India January 1, 2012 Retrogressed 74 months
EB-1 Mexico Current Unchanged
EB-1 Philippines Current Unchanged
EB-2 Worldwide Current Unchanged
EB-2 China August 1, 2014 Advanced 31 weeks
EB-2 India December 22, 2008 Advanced 1 week
EB-2 Mexico Current Unchanged
EB-2 Philippines Current Unchanged
EB-3 Worldwide Current Unchanged
EB-3 China June 1, 2015 Advanced 26 weeks
EB-3 India February 1, 2008 Advanced 56 weeks
EB-3 Mexico Current Unchanged
EB-3 Philippines January 1, 2017 Advanced 32 weeks

Dan White leads the law practice at The Immigration Group, focusing exclusively on work visas and green cards for companies and their employees. He is a graduate of Vanderbilt Law School and his writings have appeared in the National Law Journal and the Tennessee Bar Journal. Clients include corporations nationwide and in more than 60 countries.

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The USCIS Drops “Nation of Immigrants” From Mission Statement

The United States Citizenship and Immigration Services (“USCIS”) recently changed its mission statement to remove the section describing the U.S. as “a nation of immigrants.” Before the recent change, the USCIS’s mission statement read:

“USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”

With this new change, the current mission statement reads:

“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”

As noted by the bolded and underlined sections above, the new mission statement reflects President Trump’s “American First” foreign policy agenda (a policy which also instituted the Travel Ban and the proposed Border Wall).

The new mission statement also moves away from referring to agency applicants as “customers”. When asked about this, USCIS Director L. Francis Cissna announced in an email letter that use of the word customers “leads to the erroneous belief that applicants and petitioners, rather than the American people, are whom we ultimately serve.”

Overall, this change in mission statement echoes the heightened scrutiny that our firm has seen when dealing with responses from USCIS.

Our firm will continue to follow this development closely. If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

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USDOS Announces March Priority Dates For Filing Permanent Residency Applications

The following priority dates determine whether an applicant may file for permanent residency during the month of March 2018.

Category

Country of Chargeability Priority Date Comment

EB-1

Worldwide Current Unchanged

EB-1

China Current

Unchanged

EB-1

India Current

Unchanged

EB-1

Mexico Current Unchanged
EB-1 Philippines Current

Unchanged

EB-2

Worldwide Current Unchanged
EB-2 China December 8, 2013

Advanced 9 weeks

EB-2 India December 15, 2008

Advanced 1 week

EB-2

Mexico Current

Unchanged

EB-2

Philippines Current

Unchanged

EB-3

Worldwide Current

Unchanged

EB-3

China November 15, 2014 Advanced 8 weeks

EB-3

India January 1, 2007 Advanced 4 weeks
EB-3 Mexico Current

Unchanged

EB-3 Philippines May 1, 2016

Advanced 8 weeks

Dan White leads the law practice at The Immigration Group, focusing exclusively on work visas and green cards for companies and their employees. He is a graduate of Vanderbilt Law School and his writings have appeared in the National Law Journal and the Tennessee Bar Journal. Clients include corporations nationwide and in more than 60 countries.

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Work Permits for H-4 Spouses Face Uncertain Future

Based on current political talks, work permits (“EADs”) for H-4 visa holders may no longer be an option. The current law states that spouses of H-1B visa holders, also known as H-4 visa holders, may not apply for work authorization. The exception to this rule is that H-4 spouses may apply for work authorization if the H-1B visa holder has surpassed the second step in the green card process, the I-140 phase, and now holds an approved I-140. Under the existing policy, the approved I-140 acts as the golden ticket for families who want to move from a single-income home to a dual-income home. It is a highly motivating factor for H-1B visa holders to request that their employers sponsor them for a green card sooner rather than later.

On Thursday, January 18, 2018, lobbyists of U.S. technology trade groups met with the Senate Judiciary Committee to demand the retention of work authorization for spouses of H-1B visa holders. In the meeting with the Senate Judiciary Committee, the technology trade groups organized by the Information Technology Industry Council, which includes Apple Inc, Amazon.com Inc, Facebook Inc, Alphabet Inc’s Google, and Microsoft Corp., expressed their concern that vital IT talent will not be incentivized to move to the U.S. The groups believe that families that prioritize both spouses’ abilities to pursue a career will be less inclined to move to the U.S. in order to fill long-standing vacant positions. Specifically, the groups noted that major Western technology competitors such as Canada and Australia both allow visa-holding spouses to work.

If this policy changes, women with a desire to work will be the most affected. In 2016, approximately 42,000 H-4 spouses present in the U.S. were granted work authorization. The USCIS estimates that that number grew to 48,000 in 2017. Although the USCIS does not release H-1B statistics involving gender, 13% of the H-1B holders in our practice are women. 87% are men. Of that 87%, 67% of male H-1B visa holders are married to women holding H-4 visas. In 2016, the US Office for Immigration Statistics estimated that 90% of H-4 visa holders are women. In our practice, 100% of H-4 visa holders are women, and are professionals in their field, often holding bachelor or master’s degrees in areas such as law, engineering, health & nutrition, and business. If we apply those statistics to the USCIS figures, then between 43,200 and 48,000 women in the U.S. with the desire to work will be prohibited from holding a job in 2018.

As the requisite comment period continues regarding this potential policy change, we are recommending that our clients who are H-4 visa holders file their initial work authorization application or renewal application as soon as lawfully possible.

Our firm will continue to follow this development closely. If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

Posted in H1B, Immigration Law | Leave a comment

USDOS Announces February Priority Dates For Filing Permanent Residency Applications

The following priority dates determine whether an applicant may file for permanent residency during the month of February 2018.

Category Country of Chargeability Priority Date Comment
EB-1 Worldwide Current Unchanged
EB-1 China Current Unchanged
EB-1 India Current Unchanged
EB-1 Mexico Current Unchanged
EB-1 Philippines Current Unchanged
EB-2 Worldwide Current Unchanged
EB-2 China October 1, 2013 Advanced 7 weeks
EB-2 India December 8, 2008 Advanced 2 weeks
EB-2 Mexico Current Unchanged
EB-2 Philippines Current Unchanged
EB-3 Worldwide Current Unchanged
EB-3 China September 15, 2014 Advanced 5 months
EB-3 India December 1, 2006 Advanced 1 month
EB-3 Mexico Current Unchanged
EB-3 Philippines March 1, 2016 Advanced 2 weeks

 

Dan White leads the law practice at The Immigration Group, focusing exclusively on work visas and green cards for companies and their employees. He is a graduate of Vanderbilt Law School and his writings have appeared in the National Law Journal and the Tennessee Bar Journal. Clients include corporations nationwide and in more than 60 countries.

Posted in Green cards, Immigration Law, PERM | Leave a comment

The 12 Notes of H-1B Sponsorship: What U.S. Employers Should Know About the H-1B Lottery

The 12 Notes of Christmas H-1B Sponsorship: What U.S. Employers Should Know About the H-1B Lottery

The holidays are just around the corner, closely followed by the H-1B lottery during the first week of April. Though the deadline may seem far off, now is when U.S. employers should begin to consider which foreign workers they would like to sponsor for an H-1B visa. Below are 12 things that U.S. employers should know about the H-1B lottery:

  1. The foreign worker must be sponsored for a specialty occupation. A specialty occupation is one that requires “theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty”. Degrees in business are usually excluded from being a specialty occupation.
  2. There are 65,000 slots in the H-1B lottery for foreign workers only holding a bachelor’s degree.
  3. There are 20,000 additional slots for foreign workers holding a master’s degree from a college or university in the U.S. These workers are entered in both the bachelor’s lottery and the master’s lottery. The master’s degree must be in a field related to the sponsored position.
  4. The U.S. employer must be prepared to pay the prevailing wage, as determined by the government. The U.S. Department of Labor determines how much U.S. companies must pay H-1B visas holder based on their occupation in a metropolitan statistical area. Level 1 wages have received a lot of scrutiny from the government in the past few months and should be bumped to Level 2 wages, if possible.
  5. It may take until the end of June to know if a foreign worker was selected in the H-1B lottery.
  6. If the U.S. employer’s H-1B petition is not selected in the lottery, then the government filing fees are returned.
  7. Premium Processing is an option, for now. Premium Processing was suspended during the most recent H-1B lottery but has been permitted for the upcoming H-1B lottery. Premium Processing costs $1,225 and requests that the USCIS respond to the petition within 15 calendar days of being selected.
  8. Although the lottery takes place in April, the earliest the foreign worker can start work is October 1. Foreign workers may not start before October 1 (unless they are covered by the Cap Gap) and must hold an H-1B approval notice before beginning work.
  9. The maximum stay for a foreign worker in H-1B status is 6 years, unless the company begins the process of sponsoring the foreign worker for a green card. Foreign workers who hold an approved I-140 may renew their H-1B status in 3-year increments until they have their green card in hand.
  10. H-4 visa holders (spouses and dependents of H-1B visa holders) cannot work unless the H-1B spouse holds an approved I-140.
  11. Requests for Evidence (“RFEs”) are likely and may delay the process. A recent policy change at the USCIS has led to increased scrutiny for H-1B petitions. This means that more RFEs are being issued, which can increase the cost and processing time of H-1B petitions.
  12. H-1B visas put foreign workers in a good position to transition into the green card process. There is no dual-intent issue with foreign workers going from H-1B visa holders to green card holders.

Happy holidays from our firm. If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

Posted in Green cards, H1B | Leave a comment