Lately, there has been a spate of immigrant visa refusals for follow-to-join family members under visa category E3. The consular hands the applicant Form 194 which says the following:
This office regrets to inform you that it is unable to issue a visa to you because you have been found ineligible to receive a visa under the following section of the Immigration and Nationality Act:
Section 221 (g) which prohibits the issuance of a visa to anyone whose application does not comply with the provisions of the Immigration and Nationality Act or regulations issued pursuant thereto. The following remarks apply in your case:
Section 221(g) of the Immigration and Nationality Act (INA) prohibits a consular officer from issuing a visa to an alien if the consular officer has reason to believe that the alien is ineligible. Based on indications that petition (KDU...........) contains inaccurate information, we are returning it to the Bureau of Citizenship and Immigratino Services (CIS) of the Department of Homeland Security (DHS) for review and possible revocation. If CIS determines that the information we are providing would provide a sufficient foundation for initiating revocation proceedings, it will send you a notice of intent to revoke that includes a statement of the facts and evidence and you will have the opportunity to respond. Under INA 222(f), which addresses the confidentiality of visa records, we are unable to provide any further detail.
While in some cases the applicant isn't given any specific reason for denial, some have been told that the reason was that the Embassy could not verify the employment experience of the petition filer. This is employment experience shown when applying for Labor Certification. Apparently since early 2006 the Embassy has been asking for a copy of ETA 750, the application for labor certification filed with the Department of Labor.
It seems the Embassy is denying visas on the basis of suspicion -- that employment experience shown is innacurate. It is not clear what kind of evidence the Embassy requires. In many cases the establishments have closed and it will be difficult to track owners and former employees. The Embassy is not even asking for additional evidence, it is just handing out refusal letters.
State Departments guidelines for returning approved immigrant visa petition are given here:
http://travel.state.gov/visa/laws/telegrams/telegrams_1415.html
http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html
http://foia.state.gov/masterdocs/09FAM/0942043PN.PDF
The guidelines emphasize that revocation requests must provide solid, factual evidence of fraud or misrepresentation, evidence that is likely to stand up in a court of law, because if the CIS does intend to revoke the petition, the petitioner will litigate.
Given that in most cases the Embassy won't be able to produce any solid evidence which cannot be refuted with counter-evidence, it is difficult to understand why it is taking this route. It is unneccesarily creating more hardship for the applicants and petitioners, and prospect of more litigation and work for CIS.
If anyone you know is soon applying for an immigrant visa in Nepal, kindly share this information with them. Also, please post your experience, suggestions.
