Problems with Dependent Visa Issuance at U.S. Consulates

Within the past 24 hours two of my clients have had problems with dependent visa issuance. The first instance was out of China for the spouse of an H-1B visa holder. The principal H-1B visa holder has been in the United States with the spouse residing abroad. The couple appeared at the consulate together, the H-1B visa renewal was approved with the initial spousal application being held in suspense and a 221(g) letter being issued. The letter requested a copy of the “petition and/or letter and/or position information in the United States”, which is documentation that simply is not applicable for an H-4, regardless of whether it is an initial application or a renewal. A verbal instruction was issued to produce an “I-797 approval notice with your name on it”. An individual that has never been in the United States simply cannot have such a document. A letter was prepared addressed to the consulate instructing of the inapplicability of the request. The consulate promptly admitted error and is processing the visa.

I had assumed this to be a simple localized training error, but today another client experienced a similar issue. This time out of Egypt. The principal L-1 visa holder has also been in the United States for some time, with the spouse applying for an initial L-2 visa alone. In this instance, the consulate denied the visa under 214(b) indicating that the applicant was unable to demonstrate that the intended activities in the U.S. would be “consistent with one of the nonimmigrant visa categories established under immigration law”. The denial letter further indicated that “one of the most common elements within the various nonimmigrant visa requirements is for applicants to demonstrate that they have a residence in a foreign country which they have no intention of abandoning.” Once again, the applicant was verbally instructed to produce an “I-797 notice with your name on it”. As if this erroneous request was not frustrating enough, the fact that the application was denied makes the error even more egregious. My client will need to reschedule an appointment, fill out the application form and pay the fees once again to correct a Department of State error. I once again prepared a letter reminding the consulate that: a transferring L-1 employee may be accompanied or followed by his or her spouse, that 214(b) immigrant intent does not apply to L-1 workers and their families and that an I-797 approval notice cannot exist for a dependent spouse that has not been in the United States.

I have filed a report with the American Immigration Lawyers Association concerning these unacceptable errors. I will provide updates as applicable. In the meantime, should you and your spouse be processing dependent visas, be prepared to remind officers that I-797 approval notices for spouses that have never been in the United States do not exist and are not required for visa issuance.