The Department of State (DOS) recently updated the Foreign Affairs Manual (FAM). This update is intended to provide additional guidance to U.S. consular officers in terms of what role they should play regarding confirming the validity of a petition being used to apply for a visa. The update encourages officers to take a more active role in verifying the information provided in a petition. Special emphasis appears to be placed on H-1B visas.
The FAM is a crucial document that provides U.S. consular officers with official guidance. The FAM already contains instructions explaining that it is the responsibility of United States Citizenship and Immigration Services (USCIS) to adjudicate petitions, rather than consular officers. The manual explains that for I-129 based petitions, such as H-1Bs and L-1s, officers should not request additional evidence or send the approval back to USCIS for reconsideration unless relevant information is found during the visa interview process that was not available to USCIS. The FAM works under the assumption that a majority of approved H petitions are valid and that “disagreement with USCIS interpretation of the law or the facts … is not sufficient reason to ask USCIS to reconsider its approval of the petition.”
Despite this language in the FAM, there have been issues with officers re-adjudicating petitions. This is especially the case for H-1Bs, when applying for a nonimmigrant “foil.” This is often referred to as a “stamp.” Consular officers routinely issue 221(g) refusals, using the visa interview as an opportunity to request additional documentation, despite USCIS having found the documents presented to be sufficient to approve the petition. In addition, officers will sometimes return the petition to USCIS for re-review.
The update to the FAM diverts from previous guidance. This update is titled “Confirming Petition Validity.” Instead, this update encourages officers to “… confirm during the visa interview that the facts as stated in the petition are true, and that nothing has changed …” This essentially validates the current practice of officers taking on a role of re-adjudication. This update could have major implications for the review of petitions such as H-1Bs.
If you have questions on this or other H-1B related questions, please be sure to contact Berardi Immigration Law today to set up a consultation with one of our attorneys.
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