Introduction

Imagine this scenario: you’re an H-1B professional who traveled abroad to get your visa stamped. You’ve done everything right: you filled out the DS-160, prepared all the necessary documents, and attended your consular interview. Yet instead of receiving an approved visa, you get handed a 221(g) notice. No clear reason or timeline, just a slip of paper indicating “administrative processing.” Weeks turn into months with no update. Meanwhile, your job in the U.S. hangs in the balance. Unfortunately, this scenario has become increasingly common for H-1B applicants and their employers, leaving many to wonder what they can do when a visa is stuck in limbo.

In this blog post, we’ll break down what a 221(g) delay is, why these delays seem to be on the rise, and how filing a lawsuit (yes, suing the government) can sometimes be the only way to get a decision. We’ll also discuss what litigation can and cannot accomplish (it can compel action, but it cannot guarantee a visa approval), along with the pros and cons of suing. As immigration attorneys at Reddy Neumann Brown PC, we’ll share what we consider before recommending litigation to our clients. Finally, we’ll offer some practical tips to minimize the chance of getting stuck in administrative processing in the first place. Our goal is to explain all this in plain English so that H-1B visa holders and employers can make informed decisions.

What Is a 221(g) Delay?

A “221(g) delay” refers to a visa application being put on hold under Section 221(g) of the Immigration and Nationality Act. While the language of INA § 221(g) calls it a refusal, that is now how DOS practically treats these cases. Instead, DOS treats it as more of a pause. In simple terms, it means the consular officer did not approve or deny your visa at the interview. Instead, they issued a temporary refusal pending further action. This is commonly known as administrative processing. It’s the State Department’s way of saying, “We’re not done with your case yet.”

There are a few reasons a case might fall into 221(g) administrative processing. Sometimes the consulate needs additional documents or information from the applicant or the employer. In other cases, the application requires extra scrutiny or background checks. For example, there might be a security clearance required if you work in a sensitive field, or a fraud investigation if something about the application needs verification. Finally, it could simply be that the consular officer wasn’t able to make a decision on the spot and needs more time to review your file. It can also mean the officer was backlogged and didn’t have time to review things enough prior to your appointment.

When you receive a 221(g) notice, the consulate usually gives you a written letter or slip. If more documents are required, the notice will list what you need to provide (such as an employment letter, client contract, tax documents, etc.). If no additional info is requested, the notice typically states that your case is pending further administrative processing. In both situations, the applicant is left waiting, often with no clear timeline. It’s not uncommon for these “few weeks” of processing to stretch into many months. During this time, your passport is often held by the consulate (unless they returned it), and you cannot obtain your visa or return to the U.S. until the issue is resolved.

The key point is that 221(g) is not a final denial. Think of it as a delay or a hold. The case is still technically open, and it can still end in an approval (or a denial) later. But while you’re in 221(g) limbo, you’re effectively in visa purgatory, unsure if or when you’ll get to go back to your life in the U.S.

Why Are 221(g) Delays Increasing?

Many H-1B visa applicants and employers have noticed that administrative processing is being used more frequently in recent years. There are a few factors contributing to the rise of 221(g) delays, often without clear justification:

• Heightened Security and Vetting: U.S. immigration authorities have increased security screening in the past decade. Visa applications now undergo checks for security, criminal records, and technological expertise. While security is important, these checks can drag on, and applicants often aren’t told what specific review is occurring. Notably, most background checks can be completed in days or at worst weeks.
• Workload and Staffing Issues: The COVID-19 pandemic caused huge backlogs at U.S. consulates. Even as consulates have reopened, many are still dealing with staff shortages and high volumes of visa applications. Sometimes issuing a 221(g) is a way for an overwhelmed consulate to buy time. It pushes the case into a pending pile, even if the application was complete. This is frustrating for applicants, especially when no additional documents are requested and you’re simply told to wait.
• Lack of Clear Standards: By law and policy, consular officers are expected to make a decision (approve or refuse) when possible at the interview. If a 221(g) is issued, they are supposed to explain what is needed to move forward. In practice, however, we see many 221(g) notices that give no specific reason at all. Instead, the notice is just a generic statement about administrative processing. Some in the immigration community feel that certain consulates have developed an unofficial practice of issuing 221(g) notices even when an application is perfectly in order. It’s as if the case is put into a black hole with the hope that the applicant will simply wait indefinitely or even abandon the effort. This perceived “strategy” delays cases without accountability, and it’s happening enough that it has caught the attention of immigration attorneys.
• Case-Specific Factors: Sometimes, of course, there is a concrete reason for a delay. If an applicant has a common name or personal history that triggers a security match, the case will go through additional government checks. If the consulate wants to verify an H-1B job (especially if you work at a client site or consulting company), they might reach out to the employer or client. All of this takes a reasonably amount of time. However, even these legitimate checks often lack transparency. The applicant might not know what’s going on behind the scenes; they only know that they must wait.

The bottom line is that more H-1B visa applicants are finding themselves stuck in 221(g) limbo, sometimes for no obvious reason. This trend is worrisome for both foreign workers and U.S. businesses. Every month of delay means the worker can’t contribute to projects, and the employer might be missing a critical team member. We’ve seen cases where projects had to be canceled or people even lost their jobs because the visa delay went on for so long. It’s an increasingly common and painful problem.

Can a Lawsuit Help? What Litigation Can and Cannot Do

When you’ve been waiting endlessly for a visa decision, it’s natural to feel helpless. One option people are turning to is litigation (in plain terms, suing the U.S. government) to force action on the case. This usually takes the form of a writ of mandamus lawsuit or an Administrative Procedure Act (APA) lawsuit, claiming that the government is unreasonably delaying a decision.

The big question: does suing actually help?

What Litigation Can Do: Filing a federal lawsuit can indeed get the government’s attention. In many instances, a mandamus or APA lawsuit prompts the consulate or State Department to finally do something with the stalled case. The legal theory is that the government has a duty to adjudicate the visa application within a reasonable time, and a court can order them to perform that duty. Sometimes, once sued, the government will prioritize that case to avoid a court order. We’ve seen situations where a visa that was stuck for months (or years) suddenly gets issued a few weeks after a lawsuit is filed. In short, litigation can compel a decision when all else has failed. It forces the issue out of limbo. Other times, we are going to see DOS put up more of a fight to defend the delay. 

What Litigation Cannot Do: It’s crucial to understand that a judge cannot order the consulate to approve your visa. The court’s power is limited to making the government take action (i.e., make a decision), but the content of that decision is still up to the consular officer (or USCIS, or whichever agency is involved). This means if you sue, the possible outcomes could be:

• The consulate issues the visa (best case scenario).
• The consulate denies the visa (perhaps by finding some ground of ineligibility).
• In some cases, the government might offer a compromise like agreeing to make a decision by a certain date or scheduling a new interview, but ultimately the case will end in either an approval or a denial.

The idea of a denial makes some people nervous about suing. However, keep in mind that if your case was strong enough that the only thing holding it back was bureaucratic delay, an approval is likely once they finally address it. If there was a hidden issue or the officers were unsure about something, forcing a decision could result in a refusal, but at least you’d know the outcome instead of languishing in uncertainty. Also, if a visa is denied, you can sometimes take further action, like seeking new plans or reaching out to LegalNet if necessary.

 In summary, litigation is a tool to break the logjam, not a magic wand for approval. It presses the government to do its job. Many courts recognize that endless delay is not acceptable, and a well-timed lawsuit simply asks the court to enforce the reasonable timing of a decision. But anyone considering this step should go in with eyes open: you are demanding an answer, which could be yes or no. Keep in mind, if there is a legitimate reason for the delay, say a security issue, courts will often side with DOS, but it has to be well founded.

Pros and Cons of Suing Over a 221(g) Delay

Deciding to sue the government to act on a visa is a big decision. It’s important to weigh the upsides and downsides. Here are some of the main pros and cons of litigation in the 221(g) context:

Pros:

• Faster Resolution: A lawsuit can dramatically speed up a resolution. Cases that have stalled for months can see movement once a legal complaint is filed. The government may issue the visa or at least respond with next steps rather than dragging on indefinitely.
• Getting Clarity: Even if the outcome isn’t favorable, you get an answer. Knowing where you stand (approval or denial) is better than indefinite limbo, especially if you need to make life decisions or your employer needs to plan for staffing. If you receive a denial, you can evaluate your options such as waivers, new employment, or other options you might have.
• Upholding Your Rights: By suing, you’re asserting your right to a timely decision. U.S. law expects agencies to avoid unreasonable delays. Taking legal action can feel empowering. You’re not just passively waiting; you’re actively pushing for fairness.
• Often Effective: In many cases, especially for applicants with no negative factors, litigation ultimately ends with the visa being issued. The reality is that if the government has no good reason for the delay, they often choose to approve the visa once a court is overseeing the case rather than try to justify the delay before a judge.

Cons:

• Litigation Expenses: You’ll likely need to hire an attorney experienced in visa delay litigation. There are filing fees and legal fees. You have to decide if the urgency of your return to the U.S. and the importance of resolving the situation outweigh the cost.
• No Guarantee of Approval: As mentioned above, suing guarantees a decision, not a positive decision. There is a chance the consulate could respond by issuing a denial if they believe there is a legal reason to refuse the visa. You need to be prepared for that possibility. (It’s relatively rare for well-qualified H-1B applicants with bona fide jobs to get denied in response to a mandamus suit; more often the case gets approved. However, it can happen.)
• Relationship with the Consulate: Many people worry that suing the government will “anger” the consulate or harm their future visa prospects. Generally, there’s no evidence of retaliation or blacklisting just because you asserted your rights. Consular officers are professionals, and if anything, a lawsuit just goes through legal channels. Still, it’s understandable to feel uneasy about taking an adversarial stance against the agency that holds your visa fate. This is more of a psychological con than a practical one, but it’s something applicants often consider.
• Timing and Logistics: A lawsuit can take some time to work through the process. While it is possible to resolve a 221(g) lawsuit in a couple of months, there’s no guarantee. The government may try to defend the delay and require a court to make a ruling. Federeal judges are sympathetic to mandamus cases, but still have their own docket and timeline for cases.

Ultimately, the decision to litigate comes down to your specific circumstances. If you’ve been waiting an unreasonably long time and stand to suffer significant harm if the delay continues, the pros often outweigh the cons. On the other hand, if you’ve only been waiting a short while or suspect the check will clear soon, you might decide to hold off.

When Do We Recommend Litigation? (What We Look For)

Our litigation team has handled many 221(g) delay cases. We don’t tell every person stuck in administrative processing to run to court immediately. There are definitely cases that are not good for litigation. There are certain factors we evaluate before recommending a lawsuit. Here’s what we look for:

• Duration of Delay: How long has your case been pending in 221(g)? A few weeks of silence after an interview is normal; a few months is frustrating but not unheard of. However, once you’re crossing the 3–6 month mark with no meaningful updates, it starts to look like an “unreasonable” delay. Many of our lawsuit clients come to us after waiting four months, six months, eight months, a year, or even longer with no resolution in sight. The longer it’s been, the stronger the argument that the delay is unreasonable. But each case is unique. Someone with US Citizen children and a high impact job might have a stronger case that a lesser delay is unreasonable.
• No Legitimate Reason or Explanation: We examine the 221(g) notice and any consular communications. Did the consulate actually request something from you? If yes, was it provided promptly? If everything on your end is done and the consulate isn’t saying why they are still holding the case, that’s a good sign that litigation might be needed. For example, if the 221(g) notice simply said “administrative processing” and you’ve heard nothing since, that’s a red flag. We also check if the consulate failed to follow its own rules, such as not citing any legal ground for the hold or not providing a required explanation. A defective 221(g) notice (one that doesn’t comply with the regulations) strengthens the case that the delay is not justified.
• Applicant’s Background: We talk with the applicant about any factors that might explain the delay. Is there anything unusual in your case? For instance, have you ever had an arrest or immigration violation? Do you work in a field that might trigger a security review (like certain high-tech or defense-related fields)? If so, we gauge whether those checks have already taken too long or if they’re still within a normal timeframe. Having a potentially sensitive background doesn’t preclude suing, but it helps to know if there might be a valid reason for extra processing. If, however, everything looks routine (say you’re a software developer with a Fortune 500 company and no negative history), then it’s even more baffling why you’re delayed. In those cases, we feel confident asking a court to intervene.
• Hardship to the Applicant and Employer: We assess how the delay is impacting you and your company. Is your job at risk if you don’t get back to the U.S. soon? Are important projects or contracts being affected? Have you been stuck abroad, unable to see your family or attend to personal obligations back in America? The more severe the hardship, the more urgent it is to take action. We often include these details in the lawsuit to show the court that real people (and businesses) are being hurt by the government’s inaction. For example, if an H-1B employee is stranded abroad and the employer is losing a key team member on a critical project, we make sure the judge knows about those consequences.
• Prior Communication Efforts: Exhausting administrative remedies is not required, but it helps strengthen a case. This might include contacting the consulate or the State Department’s visa inquiry lines, and perhaps reaching out to a Congressional office for assistance. If those have all been fruitless (and usually they just lead to generic “please wait” replies in prolonged 221(g) cases), then we know a lawsuit is the remaining option and can explain to courts that this is our only option.

If, after looking at all these factors, we feel that the delay is truly unjustified and all reasonable steps have failed, we will recommend moving forward with a lawsuit. In our experience, by the time most clients reach this point, they are more than ready to take legal action. They just want their life back on track. We make sure to explain the process and set realistic expectations (remember, we can’t promise an approval, only a decision). But often the situation is such that doing nothing is worse than trying the lawsuit.

Practical Tips to Avoid 221(g) Delays

While one cannot always prevent administrative processing (sometimes it’s out of your control), there are some practical steps H-1B applicants and their employers can take to minimize the chances of a 221(g) delay:

• Prepare Thorough Documentation: Before your visa interview, gather every document that could possibly be needed. This includes the obvious ones like your H-1B approval notice (I-797), job offer or verification letter from your employer, pay stubs, tax returns, and the complete petition paperwork. If you work at a client site or through a consulting company, have copies of contracts between the parties, client letters confirming your assignment, and a detailed project description. The idea is to be ready to hand over any proof the officer might want to see. If you have all the paperwork on hand, the consular officer has less reason to issue a 221(g) to get documents later.
• Review Your DS-160 and Petition Details: Make sure you know your own case inside and out. Before the interview, review what was stated in your H-1B petition (the forms and supporting letters your company filed with USCIS) and what you put in your DS-160 visa application form. Be prepared to answer questions about your job duties, your employer, the work location, and so on. If you’re confident and consistent in explaining your role, you’ll inspire confidence that everything is legitimate. Many 221(g) scenarios happen because the officer wants to double-check something about the job. You can sometimes preempt that by giving clear, concise answers and volunteering relevant documents during the interview.
• Avoid Mistakes or Omissions: Double-check that you haven’t left any fields blank or any important detail unaddressed. For example, if you have a common name, you might proactively provide additional identifiers to avoid mix-ups. (Essentially, ensure your application is complete and accurate. Even minor inconsistencies (like a differing job title between your petition and what you say at the interview) can prompt further inquiry.
• Choose Interview Timing and Location Wisely: If possible, plan your visa stamping strategically. Avoid times when consulates are extremely busy (like peak travel seasons or around holidays), since backlogs can contribute to delays.
• Alert Your Employer (and Client): If you have a consulting role or an end-client, let all parties know about your visa appointment and the possibility that the consulate might reach out for verification. Ensure your employer’s HR and your client’s manager are prepared to respond promptly and accurately to any inquiries from the consulate. Quick, clear confirmation from their end can prevent unnecessary delays and help resolve administrative processing faster.
• Stay Calm and Courteous During the Interview: This might sound obvious, but your demeanor can matter. If asked for additional documents or information during the interview, provide them if you can, or clearly state your willingness to provide whatever is needed. Sometimes, if an officer is on the fence, showing cooperation and professionalism can make a difference. You want to give the impression that you have nothing to hide and that you’re happy to comply with any reasonable request.
• Follow Up (Within Reason): If your case does go into administrative processing, monitor the status online (most consulates have a visa status check). If it’s been a few weeks with no change, you or your employer can politely inquire via the consulate’s inquiry email or website. Keep the inquiries spaced out (say, one inquiry every few weeks) and make sure they are very professional. While inquiries alone often don’t break a logjam, it at least ensures your case isn’t forgotten and creates a record that you’ve been patiently waiting. If a very long time has passed, you might also contact your local Congressperson to see if they can inquire on your behalf. Sometimes a Congressional inquiry can yield information on what the holdup is.

Even with all these precautions, some 221(g) delays are simply not avoidable. But following these tips can reduce the risk. At the very least, you’ll know you did everything in your power to present a complete and clear case, which puts you in a better position if you do need to escalate the issue later.

Conclusion

Administrative processing under 221(g) is a thorn in the side of many H-1B visa applicants and their employers. It introduces uncertainty and stress into an already complex immigration process. While we hope every visa stamp goes smoothly, the reality is that delays happen, and lately they seem to be happening more often without good reason. The good news is that you’re not helpless. If you find yourself stuck in 221(g) purgatory, there are steps you can take. Start with the practical measures: make sure you’ve submitted all that was asked and politely follow up. If that doesn’t work and the delay drags on, litigation is a viable option to consider.

Suing the government might sound extreme, but it can be an effective last resort to get a resolution. The litigation team at Reddy Neumann Brown PC has helped employers and H-1B employees return to their lives and jobs by filing lawsuits that compel the consulates to do their job. These cases are ones we do not take lightly and we have to review for good facts that we can present. The key is to evaluate the situation carefully. Consider how long you’ve waited, what might be causing the delay, and what’s at stake for you. Consulting with an experienced immigration attorney can help you weigh those factors. Every case is unique, and a professional can guide you on whether it’s time to “wait a bit longer” or “take it to court.”

In a perfect world, every visa application would be decided promptly and fairly. Until that day comes, H-1B workers and companies should arm themselves with knowledge. Understand what 221(g) means, be proactive in preparation, and know that you have legal remedies if you get caught in an unreasonable delay. Being stuck in administrative processing is frustrating, but with the right approach (and sometimes a little pressure through the courts) you can overcome it and get back to what really matters: your career and life in the United States.

Reddy Neumann Brown PC located in Houston, Texas, has been serving the business immigration community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based and investor-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By: Steven Brown

Steven A. Brown is a Partner at Reddy Neumann Brown PC, where he leads the firm’s Litigation Team, addressing delays and denials of immigration benefits, FOIA requests, and policy and regulatory challenges. Steven is dedicated to delivering practical and effective solutions for clients facing unreasonably delayed or unlawfully withheld immigration benefits, including Employment Authorization Documents (EADs), advance parole, green cards, 221(g) decisions, EB-5 delays, and other immigration-related matters. His litigation efforts were instrumental in Shergill, et al. v. Mayorkas, a landmark case that led to the U.S. government recognizing that under the INA, L-2 and E visa spouses are authorized to work incident to their status, eliminating the need for separate EAD applications. This case has transformed work authorization for thousands of families across the United States.