Individuals seeking to receive a visa to work in the United States go through a two-step process: 1) the US company employer files a petition with the USCIS, and 2) after approval, applies for a visa at the consulate abroad. The consular officer must issue the visa to the visa applicant unless 1) he is not admissible (problem of a criminal, medical, etc… nature); 2) there was fraud or material misrepresentations in the process; or 3) the officer discovers new, material, adverse information at the time of the visa application. Referrals back to USCIS are supposed to be rare; consular officers are prohibited from substituting their judgment for the judgment of the USCIS because USCIS is the lead agency in approving employment petitions. The consequences of referral back to USCIS: a 6-12 month black hole in which the petition awaits re-adjudication by USCIS and the visa applicant is not permitted to work in the US (and in fact, may have his visitor visa cancelled).
While there are no official statistics, anecdotal evidence suggests that the Embassy in Moscow has been referring more petitions back to USCIS. For example, a Russian Ph.D. in linguistics was denied a visa and had his H-1B petition referred back to USCIS, notwithstanding the fact that he had already worked for that company in Moscow in a similar position.
Before going to the consulate for a work visa interview, it is imperative to be prepared. If the interview goes awry and it appears that the officer will send the petition back to USCIS, it is necessary to act immediately.
If you have been denied a work visa or will be applying soon, please contact us to discuss your options.