The following materials are provided from a webinar hosted March 29, 2017 featuring guest speaker, Jay Gairson. Jay is an immigration and national security attorney in Seattle, Washington. His clients are primarily from the Middle East, East Africa, and South Asia. He regularly handles cases that receive additional fraud detection and national security review. He uses systems thinking to evaluate government programs and strategize solutions to problems that appear to be otherwise intractable. He graduated in 2010 cum laude from Seattle University. He has served on several professional committees including AILA Washington’s Executive Committee and is highly involved in community groups. Jay can be reached at https://www.gairson.com/ or (206) 357-4218. Slides and video of the webinar appear at the bottom of the post.
What is administrative processing?
Administrative processing is a catch-all term for all post-interview processing before a final visa decision is made. Any case that is otherwise approvable on its face, but has an open, unresolved issue is referred to administrative processing.
Unresolved issues include security advisory opinions, legal advisory opinions, general advisory opinions, fraud checks, supervisory review, waiting for additional evidence from the applicant, literal processing of the visa, and other issues.
Administrative processing is at its most frustrating when it goes on for several months. Typically this is caused by a consular post waiting for a response on some form of advisory opinion. Although, as was experienced in 2014 and 2015, processing delays may also result from system failures in the Consular Consolidated Database (CCD) and more recently due to additional administrative hurdles such as the recent flurry of executive orders regarding visa issuance.
The most common and seemingly inexplicable causes of delay are fraud detection, legal advisory opinions (AO), and security advisory opinions (SAO).
Legal advisory opinions are usually anticipated and many posts will inform the client or attorney when one has been requested. For attorneys, the legal advisory opinion is the area where we are often the most comfortable: identify the legal question, analyze the law, apply the client’s facts, and provide a brief to the consulate. Legal advisory opinions are also an area where we usually feel comfortable telling our clients to be patient.
In contrast, security advisory opinions are a blackhole of knowledge and a menagerie of terms. Furthermore, reports about the programs designed to protect national security are intentionally vague when reported to the public in order to protect the integrity of the visa system. In order to understand these programs, we have to infer information from applicable laws and regulations, rarely leaked cables, the foreign affairs manual and handbook, congressional reports, office of inspector general reports, privacy impact assessments, and other sources that rarely give us complete and direct information.
Security Advisory Opinions (SAO).
There are 10 SAO programs that the public has some information about, but a reading of the 9 FAM 304.2 index hints that there may be at least 2 other SAO programs that do not have publicly available information. It is important that attorneys recognize these programs, in order to identify the most likely reason a case is held and ultimately fix the case.
The following is a brief summary of each of the known programs. These programs fall broadly into three categories: pre-issuance checks that must be started (and often completed) before a visa is issued, post-issuance notices that update DOS as well as other agencies that special individuals have received special visas, and nomination requests that seek to add information to a database about an individual or group.
- Visas Horse is issued immediately after an A (diplomat or foreign government official), C-3 (FGO transit visa), or G (international organization or NATO) visa is issued. Supposedly Visas Horse is limited to a list of specific nationalities, but I have never seen that list.
- Visas Pegasus is a namecheck program for Officials of Commonwealth of Independent States: Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Uzbekistan and potentially Turkmenistan, Ukraine, and Georgia. The Visas Pegasus hold can be waived when certain diplomatic individuals are entering the U.S. to attend pre-ministerial, ministerial, pre-summit, summit, and White House meetings.
- Visas Bear is issued immediately after a foreign government official, representative to international organization, or their families are issued a visa.
- Visas Eagle is a namecheck for nationals of Cuba, China, Iran, Vietnam, and Russia who are seeking a K non-immigrant visa, an immigrant visa, or refugee status. It is a pre-issuance check to make sure there is a biographic data match with the original application (e.g., don’t make typos!). The request is forwarded from the NVC to DHS. After 10-days the case should be processed, even if there is no response. However, DHS or DOS can make a hold request.
- Visas Hawk is an NCIC III namecheck (U.S. criminal history) required for all immigrant visa applicants and derivatives. It checks names, aliases, and dates of birth for individuals not otherwise in the CLASS (Consular Lookout And Support System, which is interconnected with the Consular Consolidated Database) database. Unmarried applicants under 16 years are not supposed to be held due to the results of this check, without evidence supporting the date of birth being incorrect.
- Visas Mantis is a special check for individuals who will have access to specialized technology while in the U.S. or are knowledgable or learning in a sensitive or critical field. This primarily impacts F-1 and J-1 nonimmigrants, especially from Cuba, China, Iran, and Russia, but can potentially impact anyone.
- Visas Merlin is the background check process for all refugees and asylees.
- Visas Viper is used to report known or suspected terrorists for inclusion in the relevant terrorist watch lists. Not all posts retain information on why they nominate individuals to these lists, which can be the basis for future false hits that are exceedingly difficult to remove — for example I had a client who matched the watchlist as a suspected terrorist due to his name and a political party membership in his home country that matched the name of a known terrorist on another continent who was a member of a terrorist organization with the same name as the political party. Getting that through the heads of the officers at DHS and DOS was stupidly slow. Visas Viper individuals are put on the Terrorist Screening Database maintained by the Terrorist Screening Center at the FBI. The TSC list is generally separated into two groups, “No Fly” which completely blocks visa issuance as well as commercial aviation travel, and the “Selectee” list which requires additional screening and is often reported by individuals who always get their airline tickets stamped “SSSS” (Secondary Security Screening Selection).
- Visas Condor is additional screening and background checks based on country of birth, citizenship, or residency in the “State Sponsors of Terrorism” (T-7) list: Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria; or from the “List of 26”: Afghanistan, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, UAE, Yemen. This is a mandatory stop list and allegedly takes 2 to 4 days, thanks in part to the partially rolled out PATRIOT (Pre-Adjudicated Threat Recognition and Intelligence Operations Team) system managed by ICE, but often take 3 to 6 weeks and if there is a hit who knows how long.
- Visas Donkey is the responsive SAO when there is a namecheck “HIT” or “IDENT”. A “HIT” is a near-match of which 98% are resolved in 120 days, or an “IDENT” which is an exact match and typically resolved within 30 days.
Challenges with these programs.
Visas programs Condor, Donkey, Viper, and Mantis are suffering from near exponential growth due to the increasing size of their relevant databases, lack of resources for reviewing and removing or deconflicting individuals from these lists, and the ever-increasing number of visa applicants. The result is that these programs are guaranteed to continue to get slower, unless dramatic improvements are made to inter-agency cooperation (DHS and DOS don’t always get along), resources, coordination, and intelligent data screening.
Exacerbating these delays are the new policies DOS and DHS will promulgate in response to President Trump’s travel ban and other initiatives. For example, Secretary Tillerson sent out several cables in an attempt to enact the second travel ban. These cables included many provisions, not all of which were rescinded. Among those that were rescinded though was the inclusion of all nationals and residents of Syria, Iraq, Sudan, Somalia, Iran, Libya, and Yemen for additional scrutiny and background checks under Visas Donkey.
Furthermore, as shown by Secretary Tillerson’s recent cables, in the event that President Trump manages to get his executive order through regarding the travel ban, or it is passed through pure DOS procedures, we can virtually guarantee that the Visas Donkey program will grind to halt trying to handle the additional burden of individuals receiving additional scrutiny. This would instantaneously increase the volume of cases processed under Visas Donkey by approximately 25% per year (based on the number of visas processed per country in 2016 and existing statistics on how many cases are already processed in this category). The simultaneous reduction in funding for visa processing and the reduction in the number of daily processed visas (a good thing) will dramatically increase the time it takes to process all cases impacted by the various SAO processes worldwide, especially those impacted by Visas Donkey and Condor.
With barely 26 Visa Security Program ICE/HSI units worldwide, which handle much of this review and the training of consular officers for it, these delays are only going to get longer. Note the known Visa Security Unit’s are located in Riyadh and Jeddah, Saudi Arabia; Manila, Philippines; Abu Dhabi and Dubai, UAE; Islamabad, Pakistan, Caracas, Venezuela; Montreal, Canada; Hong Kong, China; Casablanca, Morocco; Cairo, Egypt; and Nairobi, Kenya.
Then top all of that off with FDNS style fraud detection, with consular non-reviewability layered on top of it, in the more complicated cases and we have a straight-forward recipe for hurried decisions rather than adequate scrutiny.
Finally, according to various OIG reports, most of the historic administrative processing delays have been caused by errors in the visa submission by either the applicant or the post, false hits with one of the many watchlists, increasing numbers of visas requrested, and actual hits with the relevant databases.
The unintended results of all of these delays is even more frustrating: Consular officers are encouraged to increase scrutiny on cases potentially impacted by lengthy administrative processing in order to come up with a basis for pretextual denial – similar to we see at DHS in CARRP and TRIG cases. The only exception to this is when DHS wants to carrying out additional CARRP or TRIG review, but is intentionally doing its work behind the shield of consular non-reviewability, at which point it will tell the post to hold the case.
How do you avoid all of this?
You can’t. Simply put, you cannot avoid administrative processing. However, you can often reduce the length of time it would otherwise take to complete. In order to that you need to be semi-familiar with the various programs listed above, thoroughly familiar with your client’s case, and ready to preload all of the necessary information so that the necessary checks can start before the case gets to DOS.
At a minimum, you should prepare your case to address the most common issue likely to be encountered by your client’s demographic. For example, if your client is from El Salvador and has a relatively common name, you can reduce processing times related to name checks for gang members by providing contextual information for your client such as the names of close friends and family members in order to differentiate from potential HITS. Similarly, if your client is from a high immigrant visa fraud country such as Vietnam, you will want to spend extra time establishing your client’s relationships in order to remove all doubt. While for Somalis, you will need to satisfy additional identity requirements by providing more information and documentation establishing consistent use of the same identity for the last 5 to 15 years, preferably using documents that do not originate in Somalia.
Preloading is straight forward, but be prepared for some clients to fight you on it because you are providing more information than normally necessary to process a case. For petition-based visas, it is in your client’s interest to preload information commonly used to deny cases for that type of client, by filing it with the petition at USCIS, even though it is not directly requested in the instructions. For example, when dealing with a high identity fraud country, it is a best practice to include multiple forms of documentation establishing the individual’s identity beforehand. While it may only be necessary to include a passport, or in some cases even the passport is waived, it is far more efficient to include UNHCR identification, country identification, school records, and other documents that thoroughly establish the individual’s continuity of identity. By providing this additional information to DHS, you allow the security screening to start sooner and you can directly protect your client from a denial at the consulate based on an allegation that your client did not provide that information. You also make it easier for yourself in the event you ever have to litigate the case.
For immigrant visa and petition-based cases you will also want to update these documents when it goes to the NVC and again at the consular stage. Thus you optimize the possibility that the consular officer receives the relevant information or that the relevant information is readily available to whatever agency will be doing the necessary investigations and will make a final decision for your client.
For non-immigrant non-petition visas, you do the same thing but include it with the application. When a client has experienced multiple denials, I even go so far as to send the information to the Embassy ahead of time or alert them that the client will be bringing additional information in that I expect them to keep. I encourage my clients to never let an officer refuse to take documents when I know it is important to the case. Yes, the consular officer has a limited amount of time, but there is nothing more frustrating than having a client explain that they were denied for something that the evidentiary packet resolved.
Note there are exceptions to preloading cases, but they all come down to a certain amount of common sense: if you think evidence will lead to an unfavorable misinterpretation of your client’s case then you probably do not want to submit it unless it is required.Furthermore, thanks to Secretary Tillerson’s recent cables, we also know how to preempt against future Visas Donkey reviews by preloading the applicant’s additional information that will be requested. These so called “Extreme Vetting” procedures principally consist of requests for more information on an the applicant.
Thanks to Secretary Tillerson’s recent cables, we also know how to preempt against future Visas Donkey reviews by preloading the applicant’s additional information that will be requested. These so called “Extreme Vetting” procedures principally consist of requests for more information on an the applicant:
- 15 years travel history.
- Names of all siblings, children, and former spouses.
- 15 years of addresses.
- All prior passport numbers.
- 15 years prior occupations and employers along with a description of the job.
- 5 years of phone numbers.
- 5 years of email addresses and social media handles.
While this program is currently proposed to be put under the Visas Donkey program, it may be more appropriate to name it Visas Porcine as an homage to the apparent intent of the program. While it may be possible to fight these suggested changes, a fight will not always net the quickest or most successful result for a client.
Remember that ultimately an attorney’s job is to unite the client with family or an employer in the U.S. as quickly as possible. Thus, unless the client wants to fight it and risk years of additional time (and potentially being outright rejected), it is far easier to play along. Note that there are substantial issues with basing security checks on an individual’s email address and social media handles, especially due to the relatively high probability that an individual can lose control of their account or say something easily misunderstood when looked at without context.
What if I am already stuck in administrative processing?
Sometimes, no matter how much you preload, a case simply gets stuck. It can also get stuck because it came to you after it was already at the Embassy. In these cases, you need to slowly work through your remedies until the case is processed or is ripe for litigation.
Why is it stuck? Identify why your client’s case is stuck. Sit down, review it carefully, interrogate them on what was asked at the interview and what documents were reviewed or taken, and look over the case history. Was there a mistake on the spelling of a name? Was there information accidentally omitted earlier? Is the client from a Visas Condor country? Does the client have a common KST or EPS name? Figure out what is going on to the best of your ability, but don’t drive yourself nuts because sometimes you will never figure it out. The following are steps that can be taken to remedy a case and identify the issue at hand.
- Reach out to the consular post and ask them what is happening. You will probably be told the case is in administrative processing. However, sometimes you will get a more direct answer, “We have requested a legal advisory opinion” for example.
- If you know why it is delayed and believe you can remedy it, then escalate to a supervisor. Otherwise wait the requested 60 days for administrative processing, do an inquiry again, and then escalate to a supervisor.
- Reach out to AILA’s committee liaison, especially if you think you are experiencing a critical or common issue.
- For non-immigrant visas contact the Department’s Visa Office. For immigrant visas reach out to the NVC and make sure the case hasn’t been sent back (some embassies are horrible about sending notices on this).
- File a Congressional Inquiry. If the case has been pending at the consulate for more than one year, the congressional liaison can reach out directly to HQ rather than the post itself, this will often get you better information. Help your congressional liaison understand the case and what they can do to help.
- Mandamus — understand there is a high chance of a pretextual, unexplained denial and the consulate does have an unavoidable duty to adjudicate the case in a reasonable time.
With each of these steps it is important to keep some other things to keep in mind:
- DOS is not always where the case is held up.
- Reach out directly, via FOIA, or indirectly (liaison) to the various agencies it may be holding the case: DHS/ICE/CIS/FBI/etc.
- Generally getting angry with DOS gets you nowhere. However, they do sometimes react well to humor (but not always).
- Be understanding and informative, “I understand this is probably not DOS holding up the case, but what can we do about it” or even “After thoroughly reviewing my client’s file I believe this additional information may help you.”
- Be creative: if DHS/ICE or FBI is who held up your case for background checks, then why are you only contacting or suing DOS? if you are bringing a new spouse but the petitioner is still living with the ex-spouse, why aren’t you encouraging your client to move somewhere else or kick the ex-spouse out? If the delays are caused by inadequate resources at the agency, then challenge the increase in agency work paired with the reduction in resources.
- Embassies often send emails at the start of their day and if you respond immediately may carry out a conversation rather than re-queue you for later communication.
Managing client expectations.
Every client and every population of people respond differently to these delays. In my practice, I find the following actions to be the most useful to reducing client anxiety.
- Be upfront, if you think a case is likely to be hit by administrative processing or even if the individual’s from a demographic that commonly is hit by it, warn them when you start the case and throughout its processing. I regularly tell my clients from countries with additional complications that there case could easily take twice as long as their friend’s case and up to a year at the consulate.
- Keep the client informed by sending a quick status update (email and text are great) simply saying, “I checked in on the status again” or “I will next check the status in X days.” When client’s have a realistic timely and expectation, they are more likely to sit back and wait rather than call you constantly.
- Be honest, if the additional processing makes you angry tell the client “I get so frustrated by cases that get stuck like this.” or if you simply do not know what is going on, “I don’t know why your case is stuck, but I know things we can do to try and figure it out or unstick it. But please understand we may never know why it stalled out like this.”
Finally, always remember to take a break, because this work can be quite stressful.