Visa Refusal under 221(g) May be Overcome
June 13, 2012
Although technically a visa denial, a 221(g) refusal means that the case is pending further action, which could be because additional documents are needed or administrative processing is required.
The consular officer issuing the 221(g) visa refusal should explain to the applicant what documents or other evidence are lacking or what procedural steps need to be completed.
Examples of additional supporting documents include police certificates; proof of local employment, particularly for nonimmigrant visa applicants; additional affidavits of support; court records about arrests or criminal convictions; job offer; and tax documents.
Processing resumes after the applicant submits the missing documents or information. The rules allow one year for documents to be submitted. If the applicant takes longer than that, he will need to reapply for the visa and pay the application fee again because the application will have been cancelled.
In cases where the reason for a 221(g) refusal is administrative processing, the consular officer needs to make further investigation or review in order to determine the applicant’s eligibility. Processing of an application that is suspended due to administrative processing may take months, possibly longer.
The additional processing may entail verification of the authenticity of civil documents; sending an investigator to the applicant’s home to look into the legitimacy of a marriage; calling a company to verify the applicant’s employment; checking with a school or university if a diploma was indeed issued to the applicant; and calling the sponsor who signed the affidavit of support on the applicant’s behalf.
In cases where there is already an approved petition such as in H-1B visa applications, if the consular officer discovers in the course of investigation that fraudulent documents were submitted or the beneficiary is not qualified, the officer is not limited to refusing the visa but also recommending to the USCIS that the earlier approved petition be revoked.
A 221(g) refusal is also invoked when an applicant presents security issues. This may be because the applicant resided in certain countries, previously worked for the military, or has the same name as a terrorist. In these situations, the consular officer will put the application on hold until a security clearance or approval is received.
Section 221(g) refusals are actually very common. It was used by consular officers in about 590,000 visa applications in 2008 and in almost a million cases in 2010. These staggering numbers have caused the Department of State to look into the potential overuse of Section 221(g) and urge consular officers to either approve or deny a visa application at the window.
Nonetheless, a 221(g) refusal can be overcome when the consular official receives the requested documents or is satisfied with the applicant’s eligibility for the visa. In 2008, the refusal was overcome in nearly 87% of the cases. In some cases it is possible to seek reconsideration of the visa refusal.
Note that although a refusal under Section 221(g) is a “soft” or temporary refusal, it is still a visa refusal that must be disclosed in subsequent visa applications. Even if a visa applicant was able to overcome a 221(g) refusal, he must still disclose it the next time he applies for a visa.