What Is Meant by Case Is in Administrative Processing

For the uninitiated, "administrative processing" (AP) is State Department-speak for a temporary visa refusal pending further investigation of a visa application. (9 FAM Appendix E, 404). The applicant typically learns of the temporary refusal when, at the conclusion of the interview, the consular officer issues a written notice stating that under section 221(g) of the Immigration and Nationality Act no visa can be issued until additional administrative processing has been completed.

Security Advisory Opinions

Administrative processing may involve a request by the consular officer for a Security Advisory Opinion (SAO) from the Department as to whether the applicant poses a risk to the United States. Before issuing the SAO, the Department may in turn consult with other government agencies, such as law enforcement and intelligence agencies. There are various types of SAOs, such as:

(1) Condor SAOs, which are based on national security concerns, including a concern that the applicant may intend to engage in terrorist activity;

(2) Mantis SAOs, which are based on the applicant's suspected access to sensitive technology with a potential military application and the unlawful exportation of that technology. See, for example, More Chinese Student Visa Applicants Will Be Subject to Security-Related Delays;

(3) Donkey and National Crime Information Center (NCIC) SAOs, which are based on name matches or "hits" occurring in various databases; and

(4) SAOs related to Communist Party members applying for K-1 or immigrant visas.

Consular officers are warned not to reveal to applicants that a case has been referred to the Department for an SAO. (9 FAM Appendix E, 404).

An example of the SAO process gone awry: According to a 2017 report of the State Department's Office of Inspector General (OIG), when the U.S. Embassy in Beijing sought SAOs on whether individuals were ineligible for visas under 8 U.S.C. 1182(e) because of involvement in forced abortion or sterilizations, the State Department "sometimes waited several years" before providing responses. More than 200 such SAO requests were stuck pending in the Bureau of Democracy, Human Rights and Labor. That Bureau, in turn told the OIG that it lacked the resources to completed the SAOs.

Other Types of Administrative Processing

Apart from SAOs, the term "administrative processing" may also be used by the State Department in various other contexts, such as

(1) when the consular post has decided to perform an investigation to verify information or to check for fraud, on issues such as the legitimacy of a marriage, an applicant's education or work experience, the authenticity of a marriage or birth certificate, etc;

(2) if the applicant has a history of arrests or convictions, the officer may need to review the related records, verify they are genuine, and make a determination as to whether the applicant is eligible for the visa;

(3) after the interview if the consular officer's decision is chosen for review by a supervisor at the consulate;

(4) after an applicant has withdrawn his or her visa application; and

(5) the State Department refers to the 3-5 day period between when an officer approves a visa and it is stamped into the passport as "administrative processing."

Prevention

If you live abroad, apply for your visa as early as possible so that administrative processing is less likely to disrupt your travel schedule.

If you are in the U.S. as a nonimmigrant, such as a student or temporary worker, consider applying to renew your visa before it expires rather than afterwards. If you are subject to administrative processing, your unexpired visa normally will not be cancelled and can be used to apply for admission to the U.S., regardless of whether it is in the same or different visa category. (AILA DOS Liaison Q&As, Q13 (Oct. 19, 2017, AILA Doc. No. 17102030). That way you may be able to return to the U.S. on your existing visa while you wait for administrative processing of your new visa application.

How Long Does It Take? How Can You Check Case Status?

The State Department website doesn't estimate how long administrative processing takes. But it does say that applicants should wait 180 days for administrative processing to be completed before inquiring further with the Consulate. But administrative processing may take longer than 180 days. Administrative processing is a black hole because the reason for the temporary delay is obscured and the length of that delay is uncertain. Our firm usually follows up to check on the status of administrative processing after 60 days. We typically first contact the consular post, then if no timely response is received, we consider the actions described below.

During administrative processing, you can check your case status at the Consular Electronic Application Center (CEAC).

In the past, the CEAC status would show "Administrative Processing":

As of March 2020, the State Department has updated CEAC so that while administrative processing is pending the status will show as "Refused." It further explains that if you are subject to administrative processing "your case will remain refused while undergoing such processing."

It's technically correct to refer to an application under administrative processing as "refused" because under section 221(g) of the Immigration and Nationality Act such an application is considered refused unless and until the refusal is overcome, such as by a favorable outcome of a security check or by submission of missing evidence. The problem is that by lumping together cases undergoing "administrative processing" and cases that have been refused after administrative processing," CEAC makes it more difficult for applicants to understand the status of their case. This will trigger more emails to consular posts by applicants asking whether their case is in administrative processing or whether that processing has been concluded with a final refusal.

Taking Action

If you are facing delayed administrative processing, consider the following actions:

1. escalate the inquiry to a supervisor within the consular post
2. contact the Department's Visa Office
3. follow up through the committee that provides liaison between the Department and the American Immigration Lawyers Association
4. if the case involves a student, scholar, or professional in the sciences applying for a nonimmigrant visa to engage in science-related activities in the U.S., ask the International Visitors Office of the National Academies of Sciences, Engineering, and Medicine to file an inquiry with the State Department
5. In truly extraordinary circumstances where administrative processing delay will lead to loss of jobs for U.S. workers or significant financial loss to a U.S. company, ask the consular officer to request that the administrative processing be expedited.
6. file a Congressional inquiry through a member who is willing to be helpful
7. file a second visa application: while it may be an opportunity to include new supporting evidence, it may also result in slowing down the processing of both visa applications
8. proactively filing a Form DS-5535, Supplemental Questions for Visa Application, to provide biographic data that may be helpful for any background/security check
9. file a mandamus action in federal court.

Mandamus Actions in Federal Court

A mandamus action is a lawsuit filed to compel administrative agencies to act. The Mandamus Act, codified at 28 U.S.C. § 1361 says, in its entirety:

Action to compel an officer of the United States to perform his duty.

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

A mandamus plaintiff must demonstrate that: (1) he or she has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available.

Mandamus can be a relatively simple and quick remedy in situations where the government has failed to act when it has a duty to do so.

In cases where a visa applicant is seeking to compel a consular officer to process a visa application, the government likely will argue that such a claim is barred under a doctrine called "consular nonreviewability." Although the law is not firmly settled, the courts generally have held under this doctrine that they lack authority to review consular decisions. See, e.g., Kerry v. Din, 135 S. Ct. 2128, 2140 (2015); Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60 (D.C. Cir. 1999).

Still, the filing of a mandamus action often prompts the government to take whatever action is requested–such as issue a visa–and the case ultimately is dismissed.

What Is Meant by Case Is in Administrative Processing

Source: https://lawandborder.com/administrative-processing-black-hole-visa-applicants/