Tag Archives: department of labor

E3 Visa & H1B Visa “Administrative Processing” Refusal at US Consulate

In general for most people once an potential employer sponsor in the US has agreed to hire a foreigner under the E3 Visa, H1B visa or L1 Visa, the hard part has been done. This also applies to the K1 Visa for Marriage.

As with the H1B visa and L1 visa, petitions and forms have to filed and approved at the USCIS and Department of Labor and with the E3 visa at the Department of Labor only, so a lot of the vetting has already been done. Then of course employers if they are planning to go through the time, expense and hassle of hiring a foreigner, they themselves are going to make sure most of the time, that the employer is a legitimate candidate with relevant experience and qualifications.

So going to the US Consulate interview, while in many ways seeming like a big deal to the candidate because of the formality, seriousness and security of the process, ends up being just a routine with at the most and most a few hours wasted in the room waiting. Therefore actually getting the E3 visa or H1B visa stamp in the passport is the last step in the process before flying to the US to begin their new career.

However for some unfortunate candidates it is not so simple and the process at the US consulate takes a lot longer under the title of “administrative processing” under condition 221(g).

For a few of this group it is partly or fully their own fault as they have forgotten documents they were supposed to bring or to pay relevant fees. Usually in these instances, it just requires another US consulate visa appointment or even a quick dash out to get things and pay the relevant costs, returning the same day to continue the interview albeit with going to back of the queue.

Also in some instance people have lied about their experience, qualifications and/or circumstances and/or their employer has to some degree and this is noticed or suspected by the US conular officer. In these cases the administrative processing that follows will ultimately result in a visa denial or occasionally and instant denial at the US consulate.

(To Note visa like the F1 visa or J1 visa tend not to have this issue. Of course you can still be denied for these visas, but it tends to be instant at the US consulate as the USCIS is generally not involved in these petitions)

However in most cases the “administrative processing” or condition 221(g) is a lot more grey and is often as a result of a very particular case officer hesitation due to some aspect of the application. These can include;

  1. Unsure about the company as never sponsored a foreigner before and/or is a smaller organization or possibly operates in an industry field not usually associated with the professional work visa like E3, H1B and L1
  2. Unsure about the job offer as it sounds like a non-professional or specialty role which may not require a bachelors degree not usually associated with the E3 visa, H1B visa or L1 visa
  3. Unsure about the candidate as either their something amiss about their qualifications and experience and how it relates to the role they are about to fulfill or about their personal background from a security/character/criminal standpoint or for the E3 visa whether they intend to return home
  4. Unsure about the nature of a dependent on the visa petition

The problem is at this point if a candidate receives a letter or notification under “administrative processing” 221 (g) that they lose complete control over the process. Whether their case will take a 1 week or 4 months is really dependent on the individual US consulate, what the backlog is at the time, mailing times, whether the processing will happen locally or be sent back to the US, public holidays and of course the nature of the individual case.

Additionally in most instances there is no way to get extra information until the US consulate contacts you with an update or request for more information or in any way to find out how long the process is going to take. This of course can complete ruin a potential work position, as many employers in the US are unlikely to hold open a role indefinitely with no guarantee of success or timeliness. Then of course individuals and families have also no doubt made travel plans and paid costs and begun to wind down local life so can cause a lot of heartache and financial pain as well.

This is a clear example of the US Immigration system for Legal Immigrants being completely unfair and in need of complete reform. However in the new immigration laws proposed by members of congress, things like this are never discussed as that would be too practical and not score any political points! This aspect and many like it is why the Legal Immigration mess feeds into and causes Illegal Immigration problems for the US.

Sometimes US consulates when required don’t even send the “diplomatic pouch” which carries the case documents back to the US straight away and collect other cases from their particular US consulate and others in the area or country prior to sending it back. This of courses further delay along with the fact the USCIS who re-process these cases often view this as low priority cases to evaluate.
In truth this process should only be used sparingly by US consular officials as in many cases just duplicating work already done by other US Government agencies as well as the Private employer.

I wish I could give more hope and insight to the process for people in this situation but it is a veyr mysterious process and this is all that is really known about it. All I can hope is that you never be subject to condition 221 (g) and administrative processing!

CJ

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H-2B Visa Overview

It happens all the time these days. A contractor is awarded a large contract, but finds he doesn’t have enough workers to perform the job. He advertises the position, asks around the community, always with the same result – no workers available. Finally, as a last resort, he considers importing qualified skilled workers from outside the United States, but everyone tells him it is legally impossible to import such workers. So he ends up violating the law by hiring undocumented workers, as a matter of survival. Something is wrong with this picture.

What is wrong with the picture is the misperception that importing skilled workers is legally impossible. This misperception has been perpetuated over the years by the likes of the U.S. Department of Labor and even, more surprisingly, by over-cautious immigration lawyers. It is a misperception that has so worked its way into the very psyche of the construction industry and the legal community, that there have been calls on Capitol Hill for immigration reform and for new treaties between the U.S. and Mexico to address the labor shortage problem. In fact, before the tragedy of September 11th, 2001, President George Bush was in the midst of holding high-level meetings with Mexican President Vicente Fox on the subject. These talks have since come to a halt, like many other exigencies, in the interests of Homeland Security.

Unfortunately, a lot of time and effort has been wasted trying to fix the labor shortage problem, and all the hysterics and calls for immigration reform have been for the most part unnecessary. The truth is that there is actually a little-used provision in the immigration law for importation of temporary skilled labor: the much-misunderstood “H-2B visa.” This goal of this article is to demystify and clarify exactly what the H-2B visa is all about, and to offer some general information as to how a contractor might go about obtaining approval from the government for the temporary importation of workers from offshore.

OBTAINING A TEMPORARY LABOR CERTIFICATION

A contractor who seeks to import skilled labor for his short-term needs must first obtain a Labor Certificate for a specified number of workers from the U.S. Department of Labor (DOL). He does this by presenting evidence to the DOL that his need for labor is temporary and that there are no workers available in the local labor market. Once the contractor has obtained the Labor Certificate, he files this with U.S. Citizenship and Immigration Services (USCIS), which then authorizes the visas. The USCIS will deny any visa request that does not include a Labor Certificate.

TEMPORARY NEED DEFINED

A temporary need is defined in the applicable laws and regulations as a need that is less than twelve months. Additionally, the need must fall into one of the following categories: one-time need, seasonal need, peak-load need, or intermittent need. In the construction industry, the category that is most often used is the peak load need, which usually recurs annually. In any case, the contractor must present documentary evidence of his temporary need along with the application for Temporary Labor Certificate. Failure to provide such documentation is always fatal to a case. Other documents that are helpful in establishing a temporary need are a detailed itinerary and any larger than normal contracts.

PROVING UNAVAILABILITY OF LOCAL WORKERS

Proving that there are no available workers in the local labor pool involves advertising the position in a local newspaper of general circulation for three consecutive days. The DOL also opens a job order on the internet for a period of ten days. Interested applicants are instructed to send their resumes and references directly to the DOL, which then forwards these to the contractor. Given the current labor shortage, our experience has been that few, if any, qualified workers send their resumes to the DOL. Those that do rarely show up for work if offered a job. In any event, the contractor must contact any applicant that appears to meet the minimum qualifications. Once the recruitment period comes to an end (usually 14 days), the contractor send a statement of recruitment results to the DOL and waits two or three weeks for approval of the Labor Certificate.

UNION INVOLVEMENT

An extra-congressional, internal DOL policy singles out the construction industry as having to get union clearance before the DOL will issue a Temporary Labor Certificate. It is our opinion that this is a burdensome and discriminatory policy. At present, we are informed that a preliminary understanding with DOL officials in Washington D.C. and in Boston has been reached that notification of the appropriate union local is sufficient, so long as the contractor proves that the contact was made. If the union then wishes to refer individuals, they must apply as individuals through the normal channels. The union may not simply send over a roster of names. Additionally, the union has only 5 days in which to make its referrals. This understanding, as stated above, is only preliminary. Total elimination of the union notification requirement is preferred by non-shop contractors seeking to employ alien labor.

ROOM FOR EXPANSION

There are currently 66,000 H-2B visas available every year. However, on average, only 40,000 visas are actually utilized in any one year. This is in marked contrast to the better known H-1B visa, which is utilized to import professional labor. The H-1B visa was originally capped out at 65,000 visa per year, and each year there were more visa applications than available visas. At the insistence of the High Tech and IT lobby, congress raised the cap in excess of 200,000 visas per year. Although the number of available H-1B visas is back down to 65,000, the precedent for the solution is established nonetheless: Even if contractors suddenly take advantage of the H-2B visa to address their temporary labor needs (as the IT industry has done), there is no problem if the visa demand exceeds the supply of available visas – congress can always raise the cap as it has done before.

A WIN-WIN SITUATION

Contractors that take advantage of the H-2B visa to solve their short-term labor needs will not only benefit themselves, but will benefit the labor market on the whole. They will not need to continually run afoul of the law by hiring undocumented workers. Instead, they can bring these same workers into the system (regardless of whether they come from Mexico or Canada or Europe), use their valuable services for several months each year, and then let them go home for a few months until the next peak-load or seasonal labor cycle. At the same time, these same contractors will have effectively solved their short-term labor problems and will no longer have to turn down or lose valuable contracts due to lack of workers. In the meantime, the United States construction industry will have the time to find local solutions to the skilled labor shortage.


Guest Author
Ortega-Medina & Associates Ltd.

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