Consular processing is the procedure by which an applicant for immigration benefits applies for his or her visa (either temporary or permanent) at a U.S. consulate while outside of the United States. Some applicants legally residing in the United States on temporary visas will utilize consular processing as a means to obtain a travel document when they visit home. The potential immigrant will seek to travel to a U.S. consulate for an immigrant visa because they are otherwise ineligible to adjust their status to that of lawful permanent resident (green card holder) while here in the U.S. Many times, however, applicants are living outside of the U.S. and applying for an immigrant visa to enter the U.S. in legal permanent resident status. These petitions can be family based, employment based, or sometimes unique situations such as Amerasian immigrants, or various other specialty cases. The majority of these applications come about through petitions filed by employers or family members. When an applicant has an available visa number, he or she is required to schedule and attend an interview at a U.S. consulate. The majority of U.S. immigrant visas are ultimately decided at these interviews, but in certain cases, additional “administrative processing” is required.
What is Administrative Processing?
Administrative processing is the term consular officers use to reference pending visa applications that have been submitted to the U.S. Department of State (DOS), but cannot be issued because further action is required on the file by a DOS employee. Timelines for administrative processing are nearly impossible to predict, and can prevent cases from moving forward for any number of months or years. Administrative processing affects applicants and their families who are kept apart, as well as those whose finances cannot bear the strain of time and distance. Even in the presence of family emergencies, administrative processing forcefully separates families, who are at the mercy of the DOS as to when and whether the visa will ultimately be granted.
In cases affected by administrative processing, the applicant in question will be given a 221(g) notice that his or her case will be put on hold until further clearance for visa eligibility is attained. There are several specific characteristics of a case that can trigger administrative processing that include, but are not limited to:
- Criminal history
- Citizenship of a nation considered a state sponsor of terrorism
- Issues arising from a consular interview that lead the consular officer to request further consultation or review
- Petition approval is not yet available in the Petitioner Information Management Service (PIMS), therefore the information cannot be verified by a consular officer
- The applicant’s biometric or biographic information triggers a “security hit” in the Department of State Consular Lookout and Support System (CLASS) name check system
- Current employment or employment history is listed in the Technology Alert List (TAL) that designates major fields of goods and technologies that raise technological transfer concerns
What Happens During Administrative Processing
Once an applicant has received a 221(g) notice of administrative processing, his or her case is put on hold until the issue in question is resolved. These situations are frustrating, as neither the consulates not authorized to release the reason behind why a case is undergoing administrative processing. There are often two main groups of people affected by administrative processing: (1) applicants whose background checks are incomplete, or who have potential criminal histories or who raise security alarms (this can be as simple as having a name similar to another person in CLASS, and requires additional investigation to confirm that the applicant and the name person in CLASS are not the same person); and (2) applicants who the DOS determines need additional consideration before being found admissible to the U.S. or eligible for the benefit sought.
When an applicant presents criminal history or a potential security threat, there are not many options other than simply waiting for the DOS to make a decision. If the applicant believes he or she may be stuck in a kind of name check, the applicant’s family member or employer might try to ask for Congressional assistance from the office of his or her local Congressman. If the applicant has a criminal history or potential for doubt in this area,he or she might also try to send in documentation of police clearances from law enforcement groups, from all places the applicant has ever lived. In limited cases, this can potentially speed up the amount of time spent waiting on a background check. The last and most frustrating option is to simply wait out the processing. Often there is little that can be done, and waiting is the only option. This can lead to frustration for both client and attorney.
If an attorney believes a visa petition will be denied because of either eligibility or admissibility issues, it is sometimes helpful is to contact the Department of State’s Visa Advisory Opinion’s Division(AOD), also known as LegalNet, and ask for an advisory opinion. Usually these are most appropriate immediately after visa denial, but can sometimes be done during administrative processing, too. If the issue is a purely legal one, and LegalNet decides in favor of the client, it will instruct the consular officer to issue the visa, thus terminating the administrative processing. Again, this is not always an effective solution, but once in a while is helpful.
Notice of Intent to Revoke
Once a petition is returned to the U.S., it can take up to 2-3 months for the National Visa Center (NVC) to receive it. Once received, the NVC sends the applicant a notice of receipt. The NVC sends the petition back to the USCIS service center in which the petition was originally filed and approved. This portion of the process can take around one month. The service center is then responsible for reviewing the petition as well as the consular officer’s notes on the case. Unfortunately, petition review is often low priority for USCIS officers and can extend the process a lengthy amount of time. Eventually, the USCIS service center will issue a Notice of Intent to Revoke (NOIR), relevant to the the consular officer’s specific objections. Once the NOIR has been issued, the applicant will usually be granted 30-90 days to respond with additional evidence.
Once this response has been received, the service center will hopefully reaffirm the original approval, although it might also officially deny the petition. In cases of reaffirmation, the service center will send the case back to the consulate with a recommendation to issue the visa. The consulate will then contact the applicant with a new interview date, and begin the process again.
Points to Consider
When a visa application is placed in administrative processing, it is important to understand that there is still a good chance that the visa will be approved. In most cases, the applicant’s name or biometric information has triggered a hit in the security list, and will likely be cleared up by the process. In cases involving criminal history, administrative processing can sometimes be avoided if the attorney provides specific memoranda to the USCI with information regarding criminal activities. Unfortunately, the majority of cases involving administrative processing are uncertain as to why administrative processing occurred. This is a frustrating and time-consuming process, that often leaves clients confused and discouraged. However, it is good of remain hopeful, as it should be noted that the majority of these cases are eventually approved.
If you have a Consular Processing, Adjustment of Status, or case placed in administrative proceedings contact one of our experienced Immigration lawyers.