By: Joseph Barnett
In FY 2018, the U.S. Department of State (DOS) issued over 1 million visa refusals under Section 221(g) of the Immigration and Nationality Act (INA). The consular officer who interviews a visa applicant will tell him/her at the end of his/her interview if action on his/her case is being refused under 221(g). Refusal under Section 221(g) means that essential information is missing from an application (such as an unabridged birth certificate) or that an application has been placed on administrative hold. Although disheartening to a visa applicant, many immigration attorneys consider a 221(g) refusal as a “soft refusal” which can be overcome in a majority of cases.
Yet, for many, a visa refusal under 221(g) pending further information presents a unique challenge due to the black hole of DOS “administrative processing,” a catch-all term for all post-interview processing before a final visa decision is made. The most common causes of delay relate to fraud detection, Security Advisory Opinions (SAOs), “extreme vetting,” and processing under President Trump’s Travel Ban. Here are four things to know about 221(g) visa refusals:
1. Non-Issuance v. Ineligibility. The subtitle of INA 221(g) is “Nonissuance of visas or other documents,” and consular officers rely on terms such as “[if] it appears to the consular officer” or “[if] the consular officer knows or has reason to believe” to request additional documentation from an applicant or to request a SAO from the DOS Bureau of Consular Affairs in Washington D.C. (discussed below). The Foreign Affairs Manual (FAM), the source of DOS’ policies and procedures that govern the operations and responsibilities of DOS, states that 221(g) is not to be used when a provision of INA 212(a), which relates to classes of aliens ineligible for visas or admission, is applicable. Moreover, the FAM requires consular officers to consider the petition for reconsideration, if the visa applicant provides further evidence to overcome the “non-issuance” upon which the 221(g) refusal was entered.
2. Not A Visa Denial. The FAM unequivocally states that there is no such thing as an informal refusal or a pending case once a formal application has been made. Federal courts have also ruled that the issuance of a 221(g) refusal does not relieve a consular officer from its obligation to issue or deny a visa in accordance with 22 C.F.R. § 42.81. Rather, it merely starts DOS’ “administrative processing,” which is used if a consular officer 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; or the authenticity of a marriage or birth. Unfortunately, there is no way of definitely knowing in advance whether a visa applicant will be subject to a clearance, but the following are possible indicators that a clearance may arise – unusual travel patterns, criminal issue, common name, country of birth/citizenship, prior delays with USCIS or DOS, or prior issues at U.S. ports of entry.
3. Security Advisory Opinions. Security Advisory Opinions (SAOs) are an additional security and screening processing mechanism headed by the Office of Legal Affairs in the Bureau of Consular Affairs Visa Office within the DOS involving review by multiple federal agencies (including the FBI, CIA, National Crime Information System, and National Counterterrorism Center), typically for espionage, terrorism, or illegal transport of technology (under the Technology Alert List). These various security checks are named after different animals – Visa Donkey, Visa Eagle, Visa Mantis, Visa Viper – depending the purpose and must be completed before a consular officer is able to issue a visa. Many times, DOS is not where the case is held up, and consular officers are waiting on the FBI, CIA, the Department of Homeland Security (“DHS”), or inquiries through other third-party databases, prior to making the visa decision.
4. Writs of Mandamus, and Relation to Doctrine of Consular Nonreviewability. A Writ of Mandamus is a powerful tool that can – in certain circumstances – get a case “unstuck” from administrative processing. When a visa applicant files a writ of mandamus in federal court to force a U.S. consulate to perform a nondiscretionary duty that has been delayed for an unreasonable amount of time, the U.S. government often attempts to hide behind the doctrine of consular nonreviewability, which limits the ability of individuals to challenge inadmissibility determination findings in federal court. However, when challenging the failure to act due a lengthy administrative processing review, a visa applicant plaintiff is not asking a federal judge to overrule or second guess a consular officer’s decision; instead, the plaintiff is asking the judge for DOS to merely make a decision – either issue or deny. Consular nonreviewability is a judicially-created doctrine that has existed for over a century, but seems ripe for challenge based on DHS’ authority under Section 428 of the Enhanced Border Security and Visa Entry Reform Act of 2002 and the centralized security databases in the U.S.
Consular practice is one of the most complex and least understood areas of U.S. immigration law, and it is important to present a compelling case for visa issuance. If you have received a 221(g) refusal sheet or have been stuck in administrative processing for years, please contact a Wolfsdorf attorney.