Liam Schwartz & Associates Practice Pointer:

Visa Refusals Under INA 221(g)

 
November 2009
 
Customs and Border Protection (CBP) is set to classify all consular 221(g) actions on visa applications as visa "denials" when processing ESTA applications by VWP travelers. An applicant answering "Yes" to the question "Have you ever been denied a U.S. visa…?” is subject to denial of his or her ESTA registration request, with the subsequent need to apply for visa at a U.S. consular post.
 
This Liam Schwartz & Associates Practice Pointer describes 221(g), examines the frequency of its use and explains the impact of a 221(g) action on our clients' subsequent visa applications.
 
What is 221(g)?
 
Section 221(g) of the INA provides for a temporary refusal when an otherwise qualified visa applicant is found to be lacking a specific document, or when a consular officer determines that additional security clearance is required. Consular officers beneficially use 221(g) as a way of affording applicants every opportunity to supplement their applications in order to address concerns – such as possible fraud – that arise at the visa interview. Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.
 
In practice, the following are examples of events that commonly trigger a 221(g) refusal:
 
  • The applicant is asked to provide additional supporting documents, such as proof of local employment;
  • The applicant is employed in a field listed on the Technology Alert List (TAL) and the consular officer requests a Visas Mantis Security Advisory Opinion ("SAO"). (This is one of the most common scenarios in which applicants in India, China and elsewhere are told their applications require "administrative processing.")
  • The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility.
  • There are no empty visa pages in the applicant’s passport, or the application photograph does not meet quality standards.
  • The applicant's petition approval is not yet listed in PIMS.
 
A consular officer, upon refusing an application under 221(g), will commonly provide the applicant with a refusal letter such as that found here:
 
Parenthetically, it is conceivable that an applicant would have been temporarily refused under 221(g) and not even know it.  For example, a consular officer might tell an applicant, "Hmm… I'd like to make some phone calls and check your story before I make a final decision."  Since the officer is not asking the applicant to take any action, he doesn't give the applicant a refusal letter. Meanwhile, the officer enters a 221(g) refusal for the case. Later, the applicant's story checks out and the visa is issued -- and the applicant was never told that, technically speaking, the case was “refused” for whatever period of time the officer needed for the additional scrutiny.
 
How Common is Use of Section 221(g) by Consular Officers?
 
Very. According to the Department of State (DOS), 221(g) is subject to overuse – so much so that there is a concern about its potential abuse by consular officers. DOS asks consular managers to initiate internal reviews to focus on "the potential overuse of 221(g) refusals." 9 FAM 41.121 N2.3-7. Indeed, DOS urges consular officers to strive to either approve or deny a visa application at the window, and that "using 221(g) to avoid decisions…invites abuse." 9 FAM 41.121 N2.5.
 
According to the Report of the Visa Office, in fiscal year 2008 a whopping 589,418 nonimmigrant visa applications were refused under 221(g). Of this number, 510,549 (nearly 87%!) of these quasi-refusals were overcome and the visas issued.
 
How Does 221(g) Impact on Subsequent Visa Applications?
 
Given that 221(g) involves only a quasi-refusal (which per DOS statistics is overcome in almost 9 of every 10 cases), how should our clients approach the question "Have you ever been refused a U.S. visa?" on the DS-156 or DS-160 in subsequent visa applications?
 
The client must indicate "Yes" to this question. Regretfully, a 221(g) action – even for something as innocent as PIMS - is still formally a "refusal". 9 FAM 41.121 N2.4
 
But what about the applicant who didn't even know that her application had been temporary refused under 221(g)? In our opinion, a consular officer would not consider the innocent failure to report that kind of "refusal" on a subsequent DS-156 as material. 
 
About Liam Schwartz & Associates: Our law firm is recognized internationally as a leader in U.S. immigration and consular law. Our founder, Liam Schwartz has been consistently named as one of the most respected practitioners of American corporate immigration law. Our legal staff, composed of Shanni Alexandrovitz, Cindy Azoulay and Jennifer Schear, together with former Foreign Service Officer Brian Bolton, comprises one of the more accomplished – and innovative – teams in the business.