AILA Survey and Consular Issues in H-1B Visa Issuance
This office participated in an AILA survey for the AILA/Department of State Liaison Committee for an upcoming meeting with DOS. The submission through this survey is not meant for individual case resolution, but rather is being used for an overall tracking of emerging problems and/or trends. We see definite problems with visa issuance at posts, particularly in India, where the most important issue appears to be the “Right to Control”. The Neufeld Memo (1/8/2010) requires employers to document their ‘right to control’ an employee for H-1B purposes. However, it appears the Consulates have translated this into ‘actual control’. For instance, one consular Officer was not satisfied that the supervisor of the visa applicant spoke with her and managed her work on a weekly basis! He brusquely rejected the visa stating – “not sufficient.” There appears to be no common thread or standard of adjudication followed by the Consulates in this regard. In one debriefing, a client told our Office that the interviewing officer wrote down – “maintained eye-contact throughout,” before granting the visa. Unfortunately, since visa issuance is an arbitrary process, there no telling how it is likely to turn based merely on the preparedness of the applicant. We encourage applicants to read through and understand petition paperwork prior to appearing for a visa interview. Since, this is a quasi-adjudications process, prepare by grooming and dressing properly. Remember you cannot appear for a Hearing wearing a Yankees Cap! Maintain eye-contact at all times and respond to each question clearly and concisely. Visa issuance is an administrative process and therefore, it is important to provide information in a fearless and convincing manner as though you are before a Hearing Officer in a U.S. Immigration Office. Trying to embellish answers leads to further questioning. If the outcome of the interview is not favorable there is no use fretting about it at the Consulate. Leave the premises in a dignified manner without any further exchanges, but making sure you have thanked the Consular Officer; Contact your employer and the Attorney of Record for further action.