In today’s US Immigration environment, many foreign nationals are increasingly apprehensive about their visa position in the US when applying to change, transfer or extend their status. The introduction of arbitrary rules and memoranda by the US such as the H-1B Visa Third Party Placement (also known as the Neufeld Memo) has made non-immigrant visa approval more complex. Even though the criteria set form in the Neufeld memo were intended to apply in the H-1B visa program, we now see application of the Neufeld memo to have bled to the adjudication of other non-immigrant visa programs including O, L and others. This environment has amplified foreign national’s concerns relative to the success of their non-immigrant visa stamping at the consulates even after having procured petition approval by the USCIS.
This article will dissect the issues relevant in the consular visa stamping process and will offer insights as to how the “sausage is made” behind the scenes” from the time of the petition approval until the consular stamping process. This information is being brought to you by Columbus immigration attorneys after careful review of material available in our files and elsewhere. Our practice encompasses the entire nation and we accept clients globally.
Step One: The Non-immigrant Visa Petition Process
The first step in a successful visa stamping process, believe it or not, begins at the initial filing of the non-immigrant visa petition. It is imperative for the immigration attorney to send in an additional copy of the visa petition and any subsequent RFEs along to the Service center processing the petition with a cover sheet requesting the Service Center to forward to the “Kentucky Consular Center” (“KCC”) for what is known as the PIMS system. PIMS is an acronym for “Petition Information Management Service” is a secure web enabled system established in 2007 which allows the US Consulates to review all the documents filed by the petitioning company from a secured source. The KCC receives more than 1000 non-immigrant petitions per day from the various service centers and uploads them into the PIMS system. In addition, the KCC conducts a limited verification process of the petitioners and creates a database record of from the I-129 petition itself.
You can immediately surmise that the consulates would much rather review documents from a source they trust than from the beneficiary him or herself. You must remember that the USCIS Service Center WILL NOT send an extra copy of the visa petition package to the KCC and many immigration lawyers do not take the time to comply with the rules and neglect to send a copy thereby causing the beneficiary to experience delays during the consular process. Hence, the first step to a successful visa stamping process begins at the time the petition is filed.
Step Two: Planning For the Interview
If your petition made it to the KCC for inclusion in the PIMS system, you are in decent shape. If not, you must contact your attorney to make certain that a copy is mailed to the Service for uploading in the PIMS system.
In order to prepare for your consular interview you must visit the US Consular website to learn about the specific steps required to schedule the appointment. Remember to complete the on-line form and the payment of the filing fee. If your petition was approved prior to the establishment of the PIMS system in 2007 and you wish to receive stamping you should have your attorney make certain that the Service Center sends a copy of the petition and other related response to an RFE to the KCC with instructions to upload it in the PIMS.
You must also understand that the consulate will have access to information and documentation about you and the petitioner as stated in the most recent approved petition which was later uploaded by the KCC in the PIMS system. If circumstances of your employment changed, for example you have been assigned to a different end client or your work-site address changed significantly, it is high advisable to file an amended H-1B visa petition prior to the scheduled visa stamping.
Take with you a copy of the entire petition package in case including any RFEs that had been issued and responded to by your immigration lawyer. In addition, take with you the original approval notice for presentation to the consular officer if necessary.
KCC advised the American Immigration Lawyers Association that five days prior to the interview, the consular officer is required to review the candidate’s file and to determine whether the PIMS system is updated. If not, the consular officer is directed to request that the file be updated to the KCC which in turn will contact the USCIS Service Center regarding any missing or inconsistent information. For instance, if the PIMS system did not show an approval in the file, the KCC will attempt to obtain the same from the USCIS. The USCIS normally responds within 48 hours. Once the KCC receives the missing information from the USCIS, it updates the PIMS system.
Step Three: The Date of the Consular Interview
You must be aware that US Consulates may investigate your case notwithstanding the stature of your employer. From experience, we generally see more consular inquiries relative to petitions filed by smaller petitioners although it is not necessarily a rule of thumb. Hence, it should not be a point of concern or frustration as most cases filed in good faith will be resolved in favor of the beneficiary.
If the consular officer wants to investigate your case further, they will issue a letter to you pursuant to INA 221(g) (also known as the 221g letter) requiring you to submit additional documentation. The consular officer will also send an email to the KCC Fraud Prevention Unit through the PIMS system which will conduct a limited investigation on the petitioner and/or beneficiary. Sometimes, the KCC may contact the end client if one was identified in the petition to confirm whether the beneficiary’s employment circumstances. The KCC does not have any access to investigative efforts previously conducted by the USCIS during the petition review process. It is therefore conceivable that the end client may be called twice, once from the USCIS during the initial petition adjudication phase and again during the consular processing stage. The KCC stated that efforts are underway to avoid duplicative investigative efforts; but that may not be forthcoming in the near future.
You must quickly contact a competent immigration attorney as some of the information requested by the consular officer is ludicrous such as tax returns for the petitioning company. Many large companies’ tax returns could fill several bankers’ boxes and hence it will not be possible nor helpful to submit such voluminous documentation. Other petitioning employer will simply not surrender their tax returns for privacy concerns. These issues may be resolved by submitting alternative evidence as the primary concern of the consular officer is whether the employer has the financial means or that it is a bona fide going concern.
Step Four: Submitting the Required Documents
If you were requested to submit additional documentation, carefully read the instructions located on the 221(g) letter to transmit the documents back to the consulate. Some 221(g) letters state that the documents may be submitted in person to the consulate. Do not expect the officer to review the documents the instant you submit it to them. We have had clients who reprimanded by the consular officer when the beneficiary demanded that the officer review the additional documents impromptu.
If you plan your consular visa stamping process properly, your experience should be pleasant. Only with early planning will your consular visa stamping interview be successful.
Contact The Law Firm of Shihab & Associates should you have any questions or require assistance with your consular stamping process. We have successfully resolved complex issues in the visa process because we work hard for our clients. Contact one of our competent attorneys at 1-877-479-4USA (4872).