21 Mar Overcoming Administrative Processing Challenges with Ramin Asgard – Episode 74
Cases requiring administrative processing have increased exponentially in the last two years. In this episode, Mona and Mark are joined by Ramin Asgard to explain what ‘administrative processing’ really means and how the introduction of Form DS-5535 influenced the number of cases in administrative processing. Listen in for insight on the difference between a discretionary provisional refusal and a mandatory SAO—and learn what steps you can take to resolve a case stuck in administrative processing.
“I’m sorry, but your case requires administrative processing.”
Since the introduction of Form DS-5535 in May of 2017, the number of visa application cases put through administrative processing seems to have grown by an order of magnitude. And a number of those cases get stuck somewhere in the process, with applicants waiting much longer than the suggested 60 days for a resolution. So, if you are faced with a 221(g) provisional refusal, what steps can you take to request information about your case and inspire the officials involved to provide clear answers regarding a path forward?
Ramin Asgard is a former US Foreign Service and Consular Officer who served in Istanbul, Ankara and Dubai. He recently joined the team at Mona Shaw & Associates and serves as the resident expert on overcoming the challenges associated with administrative processing. Today, Ramin joins Mona and Mark to discusses the difference between additional screening at post versus requesting a Security Advisory Opinion (SAO)—which sends the case to Washington for review.
Ramin walks us through the information required by Form DS-5535 as well as the wide variety of factors that could trigger an SAO. Listen in for insight on the standard approach to resolving a case in administrative processing and learn what options are available should the standard approach fail to yield a resolution.
The Truth About Administrative Processing
- ‘Administrative processing’ is a euphemism State Department foreign service officials and consular officers use when a case requires additional screening. Sometimes this is done at the discretion of the consular officer, and other times it is mandatory.
- In a discretionary situation ‘at post,’ the consular officer will issue a 221(g) provisional refusal to buy time for further review. In this situation, the applicant has achieved statutory approval, but the officer would like to collect additional information or documentation. These cases are usually resolved quickly.
- On the other hand, if the consular officer issues a 221(g) and refers the case back to Washington for review, it may take much longer to reach a resolution. In these SAO situations, administrative processing is mandatory and little information is available to either the applicant or their attorney.
- If, ultimately, a visa application is denied at the consular level, the EB-5 investor will not get their money back. (A denial at the I-526 level does guarantee a return of funds.)
DS-5535 & the Rise in Administrative Processing
- Form DS-5535 was introduced as a special vetting questionnaire in May of 2017. This form can be requested by the Consular Officer during the interview, but we suggest preparing and submitting it in advance, along with the visa application. Form DS-5535 is generally always requested of a national from any Travel Ban country.
- Form DS-5535 requires applicants to disclose their travel, address and employment history for the last 15 years as well as all social media platforms and identifiers, phone numbers and email addresses used during the last five years. It also asks for the names and dates of birth for all siblings, children, spouses or domestic partners, among other information.
The Security Advisory Opinion or SAO
- If the Consular Officer requests a Security Advisory Opinion, the case is referred to the Consular Affairs Bureau, Visa Office in Washington, DC. There are many possible reasons for an SAO request, including country of nationality.
- Consular Officers review a database that provides basic information, and if the applicant in question has a common name, that may also trigger an SAO. A technology export concern is also grounds for an SAO, meaning that the applicant has a education or professional background in sensitive technology (i.e.: nuclear or biochemical engineering) that requires additional vetting before a visa is issued.
The Standard Approach to Resolution
- In theory, SAO cases should be resolved in 60 days, but many applicants get stuck in administrative processing. Your first course of action is to inquire on the status of a case with the embassy or consulate directly. (The applicant can do this themselves, or the attorney can inquire on their behalf by filing a G-28.)
- The next step is to request information directly from the Consular Affairs Bureau, Visa Office, Legal Division Coordination.
- Unfortunately, no one is obliged to give authoritative or complete answers to applicant or attorney inquiries. At times, the State Department simply can’t provide information, as other agencies are involved (i.e.: Homeland Security, the FBI, etc.).
- If the agency makes a manifest error (e.g.: the Consular Officer is unfamiliar with an O visa), the applicant can submit a new visa application to point out the mistake. Generally, this results in some action. Unfortunately, the applicant will have to pay the associated fees and once again complete the paperwork involved starting at the consular processing stage.
Additional Options for Resolution
- If the standard approach does not yield a resolution, your next course of action is to get a Congressperson or Senator involved and ask them to advocate on your behalf. This option should not be pursued until the 60- to 90-day mark.
- If you have exhausted all the possibilities to no avail, your last resort is to get the federal courts involved and file a Mandamus Action, compelling the Consular Post to reach a decision. (This doesn’t necessarily mean you will receive an approval, just that the case will be resolved.)
- We suggest submitting a draft of the Mandamus Action to the State Department with the caveat that you will file in a certain number of days unless a decision is reached. Again, the option to pursue litigation should only be exercised when no alternative is available.
- It is in the immigration attorney’s best interest (and that of their clients) to cultivate positive relationships with State Department, embassy and consulate officials. Developing professional rapport over time improves the attorney’s chances of speaking with a person (versus receiving an automated response) and getting clear guidance to overcome the challenges of administrative processing.