Admin Processing Alternatives
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Administrative processing is a catch-all term for post-interview visa processing that can include advisory opinions on security, legal, and general issues as well as fraud review and supervisory review. It often experiences slowdowns due to insufficient resources, exponential growth in screening programs, and large consular officer caseloads. Applicants can help reduce administrative processing times by "preloading" applications with supplemental documents and information to preempt investigatory requirements. Managing client expectations and keeping lines of communication open are also important when delays occur outside of an attorney's control.
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Admin Processing Alternatives
- 1. Admin Processing Alternatives to Waiting Jay Gairson Gairson Law, LLC jay@gairson.com (206) 357-4218
- 2. Administrative Processing • What is it • How it can be avoided • How to get out of it
- 3. What is Administrative Processing? • A catch-all term for all post-interview processing before a final visa decision is made.
- 4. Why is Administrative Processing Slow? • Advisory opinions: – General – Legal – Security • Fraud Review • Supervisory Review • Mistakes
- 5. Advisory Opinions (AO) • Legal: Questions of law as applied to fact • Security: National security programs, 10 known (SAO) • General: Everything else, often procedural
- 6. Security Advisory Opinions (SAO) The Department of State Visas Menagerie: Horse, Pegasus, Bear, Eagle, Hawk, Mantis, Merlin, Viper, Condor, and Donkey
- 7. SAO Visas Visas Horse: Specific Nationalities for A, C-3, and G visas On Visa Issuance No Hold (CC0)
- 8. SAO Visas Visas Pegasus: Namecheck for Officials from the Commonwealth of Independent States Waivable for DPT-00 to attend pre-ministerial, ministerial, pre- summit, summit, and White House meetings. (cc by) Christine und Hagen Graf
- 9. SAO Visas Visas Bear: Foreign Government Officials, representatives to international organizations, and their families On Visa Issuance No Hold (CC0)
- 10. SAO Visas Visas Eagle: Namecheck K, IV, Refugee Cuba, China, Iran, Vietnam, Russia 10 days auto-clear Pre-issuance (CC0)
- 11. SAO Visas Visas Hawk: NCIC III namecheck All Immigrant Visas except unmarried <16 Pre-clearance (CC0)
- 12. SAO Visas Visas Mantis: Technology Alert List Access to Restricted Tech Key Impacts: F, J from China, Iran, Russia, Cuba Pre-clearance (CC0)
- 13. SAO Visas Visas Merlin: Refugees and Asylees Pre-clearance (CC BY) “Just a Prairie Boy”
- 14. SAO Visas Visas Viper: Recommendation to Add Known or Suspected Terrorists to Watchlist (CC0)
- 15. SAO Visas Visas Condor: Extra Screening Pre-clearance, required T-7: Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria 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(CC BY) USFWS Pacific Southwest
- 16. SAO Visas Visas Donkey: Pre-clearance, required if Namecheck HIT/IDENT Deconfliction Proposed extension to all applicants from travel ban countries (CC0)
- 17. SAO Problems • Exponential Growth: Visas Condor, Donkey, Viper, and Mantis • Database size, difficult to remove names • Number of applicants • Insufficient Resources • Only 26 HSI Visa Security Units: including Riyadh, Jeddah, Manila, Abu Dhabi, Dubai, Islamabad, Caracas, Montreal, Hong Kong, Casablanca, Cairo, Nairobi • Proposed 25% expansion to Visas Donkey reviews (Travel Ban) • Proposed reduction in budget • Huge caseloads: consular officers now interview up to 120 people per day • Pretextual Denials
- 18. Avoiding Administrative Processing • You cannot avoid it • You CAN reduce its time impact by preloading the case • Preloading: Submit documents EARLY that preempt or reduce the variables that need investigated before visa issuance – IV: Submit to USCIS, Update with NVC, update with Consulate – NIV: Notify Consulate if complex; Prep client with strong elevator pitch (<45 seconds) including supplemental brief and documents.
- 19. Preloading • When to preload? • Cases likely to receive additional scrutiny • At every opportunity, even when the information is not requested • What to preload with? • Information and documents that preempt or reduce investigatory burden • “Extreme Vetting” answers
- 20. Extreme Vetting • Proposed requests (Sec. Tillerson): – 15 years: travel history, addresses, detailed prior occupations & employers – 5 years: phone numbers, [controversy: email addresses and social media handles] – All prior passport numbers – For all siblings, children (step & bio), former spouses: name, nickname, address, job, phone, U.S. immigration status (CC0)
- 21. Stuck! Now what? 1. Identify Reason, if possible 2. Inquire, wait 60 days inquire again 3. Escalate to supervisor 4. AILA Committee Liaison 5. NIV: Visa Office; IV: NVC/KCC 6. Congressional Inquiry 7. Mandamus / Litigation (CC0)
- 22. Miscellaneous Tips • DOS is not always where a case is delayed: • Reach out to other agencies, FOIA other agencies • Don’t get angry, do use humor (with caution) • Be understanding & informative • Be creative: • Sue FBI/DHS/ICE due to their delays • Investigate new theories • Most consulates send emails at the start of their day and often respond quickly to immediate follow-up emails
- 23. Client Management • Be Upfront: warn about potential delays before filing anything • Be Understanding, listen carefully to the frustration • Keep Informed: an informed client is a happier client • Be Honest: “I don’t know” “I don’t understand it either” “I am really frustrated with this” “It takes patience” • Work Together: let your client push directly on the agency, but warn not to get angry, not to threaten, and that some officers may lie, deflect, and ignore
- 24. (CC0)
Editor's Notes
- I am going to talk today about what administrative processing is, how to avoid it, and how to get out of it. To understand how to resolve issues related to admin processing, it is necessary to understand what it is.
- What is AP? 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 can 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. As a result, I am not going to spend a lot of time on these, unless someone has some specific questions.
- 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. I am aware of 10 different SAO programs, but a reading of the 9 FAM 304.2 index hints that there are possibly 12 SAO programs. I am going to skim through all of them, as it is important that you recognize them if you want to figure out the most likely reason your client’s case has been held, which is necessary if you want to fix the case. First the diplomatic programs:
- 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.
- 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 requested, 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.
- You can’t. Simply put you cannot avoid administrative processing, but you can often reduce its time impact. In order to that you need to be semi-familiar with the various program we just discussed, 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.
- Without spending a whole day on this and going through dozens of hypotheticals, it is difficult to tell you exactly what to preload into your cases. However, 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. How to preload? Preloading is straight forward, but be prepared for some clients to fight you on it. 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 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: 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. I would not be shocked if this program was eventually named “Visas Porcine” or simply feature a slice of bacon in order to identify security risks. Now, I could spend a lot of time talking about privacy and my opinion of these suggested requests that are luckily on hold at the moment, but ultimately my job is to unite my 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. Except note that I am seriously not a fan of ever providing email addresses and social media handles due to the relatively high probability that an individual can lose control of those or say something easily misunderstood when looked at without context.
- What if I am already stuck? 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. 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. Notes - (a) 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; (b) 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 (just be careful, because you don’t want DipSec showing up in your office…) 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.
- Now let’s talk a bit about client management. Every client and every population of people respond different to these delays. Some people won’t bother you no matter how long the case takes, while others will be pounding on your office door every afternoon demanding to know what the status of their case is. The latter is extremely frustrating, but we cannot forget the former because of them. In my practice I find the following actions to be the most useful to reducing clients that want to come pound at my door: 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. Are there any additional questions?