Several nonimmigrant visas such as B, F, J, and R don’t require prior petition approval from USCIS. However, many other nonimmigrant visas such as H, K, L, O, and P require a petition to be filed with USCIS. USCIS must approve the petition before the beneficiary can appear at the U.S. Embassy/Consulate for the visa interview.
In the visa categories that require visa petitions, USCIS will research the case and take necessary measures for the legitimacy of the petition, eligibility of the beneficiary, etc., before approving the petition.
Even after the approved petition, a consular officer may still discover new issues, such as the petition approval being obtained through fraud, misrepresentation, or other unlawful means; the beneficiary is not entitled to the status conferred by the petition; or a consular officer discovers that the degree certificate presented is forged or the applicant does not have the necessary experience claimed that is required for the petition approval. In these cases, the consular officer can refuse the visa under the 221(g) provision and return the case back to USCIS to reconsider their decision and possibly revoke the earlier approved petition. (Of course, there are other cases of 221(g) denial where the documents are missing, and the visa will be issued once the documents are presented.)
Most of the applicants involved in such administrative processing are either temporary workers (such as H-1 visa applicants) or a fiancée applying for a visa abroad. Consular officers may discover that, in the case of temporary work, the applicant does not appear to meet the requirements for a temporary work classification, or in the case of a fiancée, they do not seem to have a genuine relationship with the petitioning U.S. citizen.
Consular officers should use the revocation process sparingly and should not attempt to re-adjudicate or reevaluate petitions. However, consular officers in India appear to be using this process liberally and frequently. This essentially causes the duplication of efforts by two U.S. government agencies: USCIS and the Department of State (DOS). The revocation process is quite lengthy and burdensome. It can take anywhere from several months to a couple of years. Neither the petitioning employer nor the applicant would be willing to wait that long. The employer would then potentially look for a different employee, and the applicant would look for another employer. Even if the entire administrative processing goes through positively in favor of the petitioner and visa applicant, about half the validity of the LCA duration would be wasted. In the case of a fiancée, approval of the original K-1 would have already expired.
Process
- At the conclusion of the interview, a consular officer hands over the 221(g) refusal indicating that the petition is being returned to the U.S.
- Consulate returns the petition to the U.S. in a diplomatic pouch for further review.
- When NVC receives the returned petition, it reviews it and enters it into the fraud database by fraud management.
It may take 2–3 months for NVC to receive the diplomatic pouch, as it may be sent to different consulates to pick up other returned petitions along the way. - NVC returns the petition to the USCIS service center where the petition was originally filed and approved.
This may take around 1 month. - Once the USCIS service center receives the petition, it sends a notice of receipt to the petitioner.
- The service center reviews the returned petition and the interviewing consular officer’s notes on the case.
Returned applications are low priority at USCIS. They are reviewed in the order they are received and after new petitions have been processed. - Service center sends either a Notice of Intent to Deny (NOID) or a Notice of Intent to Revoke (NOIR) to the petitioner documents relevant to the consular officer’s objections to rebut.
- Depending on the service center, it gives 30–60 days from the date of NOIR/NOID to the petitioner to respond with additional evidence. The letter will also specify the time frame in which to respond.
- If the service center receives the response in a timely manner, it reviews the case and either the original approval is reaffirmed or the petition is officially denied.
- The service center accordingly sends the official denial letter or a notice of reaffirmation.
- If the petition is reaffirmed, the service center sends the reaffirmed petition and its supporting evidence provided in the rebuttal directly to the original consulate, along with a recommendation to issue a visa.
- The consulate notifies the beneficiary of a new interview date. Exact procedures may vary at different consulates.
- The consular officer conducts the interview of the visa applicant, and the visa is either issued and placed in administrative processing again or denied via section 221(g) and returned to the USCIS with a recommendation for revocation.
Timings
Most administrative processing is resolved within 60 days of your visa interview. However, some cases may take longer, depending upon the circumstances of your case.
Checking Status
If your visa application is pending at the U.S. Embassy/Consulate in India due to administrative processing, you can check its status by visiting an appropriate website.
Before you inquire about the status of your case, make sure to wait at least 60 days from the date of your interview or the submission of supplemental documents, whichever is later.
