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Immigration Issues/H1B visa denial at the Consulate

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Question
Hello Ajay,

I went for H1B stamping in Kolkata and the consulate officer issued me a white form 221g refusing visa approval. I had all documents including my petitioner's tax returns. The reason given by the consulate officer was "your company is sub-contracting and this is illegal in the US".

I understood from the consulate officer that my documents will be sent to USCIS to revoke my I-129 and my petitioner can contest. I learnt from my petitioner that this process will take place over a 'minimum' period of four months. Until they get notified by USCIS, they cannot do anything.

Q1. Is the reason of sub-contracting being illegal true? Isn't it legal? Some of my colleagues have already got their H1B approved.
Q2. Does it really take four months to do all the follow up process?
Q3. If the process and duration is correct, is there any way to expedite the process?
Q4. Given my situation, and the fact that a similar case never got resolved, is it safer to find another H1B sponsor in the US and file a new petition? Can I do so while this petition is pending?

Thanks in advance for your help!

Answer
Hi,

It is not illegal for an H1B employer to subcontract an employee. However, as a practical matter, the H1B visa stamping process for I.T. professionals working at client sites (esp. when the client of the H1B employer is not a direct client) has been difficult in the past 2 years or so. To make rejection less likely at the Consulate in the future, it is highly recommended that the H1B petition filed by the H1B employer clearly spell out the client, the work location, that the LCA (labor condition application, Form ETA 9035, which is part of the H1B petition filed with the USCIS) assign the correct worksite location, that the itinerary is provided (agreement or contract between the H1B employer and client), etc.

It is likely that the Consulate will never issue you the H1B visa stamp through this employer; it may not formally acknowledge its decision for at least 4 months, and probably longer. There is no way to expedite.

I recommend that another employer file an H1B petition for you.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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