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Immigration Issues/Options after H1b 221(g) visa denial


Hi, I have a BBA in MIS/Finance (US educated) and been working in IT since then. Current job with Company A is of a Business Systems Analyst. However the LCA was for a 'Systems Analyst'. When I was at the consulate in my home country (traveling for vacation), my H1b visa was denied twice (a 221(g) denial), stating that my degree was not valid for the position the H1b was applied for. Its been 9 months since I am stuck here, 7 of which I have been allowed to work remotely. However due to the fact that I no longer have a client engagement, I am sort of out of work. My employer is keeping my H1b open - in the event the USCIS does not agree to revoke my H1b as suggested by the consulate.

I would like to know what options I have to make it back.

1. Can I transfer my H1b to another company (in case I find another job)?
2. Will I get another 221(g) denial again with this new H1b
3. If I try for a visitor's visa, will it cancel my current approved H1b petition? or harm the H1b transfer to another company?
4. Will I even get a visitor's visa - I am trying to attend a friend's wedding and bring my stuff back.

I am just trying to find out what all options I have available..Please help! This has been confusing since the consulate has an issue with my US education. And I apologize for the long letter. Thanks for all the help you can provide. Really do appreciate it!

Eileen Chun-Fruto, Los Angeles immigration attorney writes:

Dear Div,

Sorry to hear of your H-1B visa troubles.  Let me try to answer your questions.

1.  You can transfer your H-1B to another company, but I'd be wary that the visa will just be denied again.

2.  see answer above

3.  If you get a visitor's visa, it won't cancel your H-1B or hard an H1-B transfer.  The only way an H-1B petition is "revoked" is if USCIS make a formal action to cancel it.  

4.  Getting a visitor's visa.  That's a tough one.  I would think that after 2 denials of the H-1B visa, they Consulate will be reluctant to issue you a visitor's visa.  They may be concerned that you are using the excuse of a friend's wedding to overstay or enter the US to begin work for the H-1B employer.

Consulate decisions, as you probably know are not appealable and what's worse is that the Consular officer does not always indicate what specific reason they are using for the denial.  Citing 221(g), is as you know not really helpful.  Based on what you've told me, it seems like the LCA was not improper and that you do sound qualified.

In my experience, consular decisions are very difficult to overcome.

Eileen Chun-Fruto

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Eileen Chun-Fruto


I can answer any employment-based immigration question including questions about PERM labor certifications, H-1B skilled workers, L-1A multinational managers or executives and L-1B specialized knowledge, R-1 and I-360 religious workers, investor cases (E Treaty Trader and E Treaty Investors and EB-5 "million dollar investors") and O-1 extraordinary ability cases. I can also answer any questions regarding family-based immigration, such as adoptions, waiver cases, consular processing (using foreign consulates to enter as an immigrant), marriage and fiance/fiancee cases, 245(i) cases, VAWA (Violence Against Women's Act), battered spouses, and Child Status Protection Act (CSPA).


I have over 12 years of experience in business and family immigration. I was a former law clerk for the Executive Officer for Immigration Review (the immigration courts) in San Francisco and I current serve as the California Service Center's (CSC) liaison on behalf of the Los Angeles County Bar Association. I represent individuals and corporations alike, ranging from professionals in the high tech, science, liberal arts fields. I have a special niche in working with start-up companies and individuals with more complex immigration issues.

Member, American Immigration Lawyers Association Member, Los Angeles County Bar Association, Executive Committee on Immigration

J.D., University of California at Davis - King Hall School of Law (1997) B.A., University of California at Irvine, cum laude (1994)

Awards and Honors
2005, 2006, 2007, 2008: Selected to Southern California Rising Star - Super Lawyers List (an honor shared by no more than 2.5% of the attorneys practicing in the entire Southern California region) Faculty/Moderator on various AILA and LACBA continuing legal education seminars in the following topics: H-1B, O-1, religious workers, business immigration visas

Past/Present Clients
My typical business clients can range from a start-up company, established engineering and software research and development companies, manufacturing, trade and distribution companies, public and private schools, and religious organizations. Family clients include spouses, parent-child petitions, siblings, naturalization, and most especially, representation of abandoned and neglected children viewed as orphans under the immigration law. I have represented many clients who relied on special provisions of the immigration law to preserve or "grandfather" benefits to family members in limited (and complicated) circumstances, to avoid re-application fees and longer waiting times.

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