For the past 6 months, I have been encouraging clients to file Federal Lawsuits to overcome unreasonable delays in processing petitions and to overcome wrongful denials. I truly believe this is the only way to hold USCIS and the Department of State accountable.
Recently I was contacted by a client who had received a 221g denial from the Chennai Consulate on both her H-1B and H-4 petitions.
Although the decisions of Consulates are generally not subject to review (Commonly referred to as the Doctrine of Consular Non-reviewability), they cannot unreasonably withhold a decision. Although I have seen the Consulate claim that they have made a final decision, the fact that the case undergoes further administrative processing is a clear indication that it is not. Therefore, a Lawsuit can be filed against the Department of State to compel the officer to make a final decision, which in most cases will result in an approval.
In this particular instance, my client had been stuck in India for over 9 months and despite regularly contacting the Consulate she was not given any update on her case. Furthermore, the Consulate had held onto her passport, claiming that her case was under review and required further administrative processing. Anyone who has received a 221g knows that it is something of a black hole and obtaining approval can take several weeks, months, and sometimes even more than a year.
When asked what I could do to help facilitate matters I had advised this client that filing a Federal lawsuit was really the only way forward. However, before filing the lawsuit I had e-mailed the Consulate to advise them of our client’s intention to move forward with a Federal Lawsuit and had informed the officer that unless they made a final decision on both the H-1B and H-4 applications my client would proceed to file a Federal lawsuit without further notice. The Consulate originally replied to my e-mail claiming that they had made a final decision. I pointed out that if it was a final decision then why was the case under further administrative processing and why had they not returned my client’s passport.
Prior to the 14- day deadline which I had provided, my client received an e-mail from the Consulate asking her to return the following week for an interview. By merely threatening a Lawsuit, I had prompted the officer into action.
Unfortunately, following the interview my client received yet a further 221g visa refusal, stating that her case with under further administrative review. I, therefore, put my client in contact with an experienced Federal Litigator who filed a Complaint against the Department of State, with the help of our experienced in-house Counsel (Jonathan Gitlin), in the Northern District of Texas. The Complaint was filed at the end of November 2019 and I just learned from my client that both her H-1B and H-4 have now been approved.
At the time of this approval, my client had been stuck outside of the U.S. for almost a year. Had the client not been prepared to take the additional step of filing a lawsuit, who knows how much longer her case would have taken.
If you have received a 221g visa refusal or know someone that has please e-mail our Senior Immigration Attorney, Chris Prescott at firstname.lastname@example.org.