The 221(g) Epidemic and What You Can Do About It

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The statistics are stunning.

Over the past four years, more than four million visa applications have been temporarily denied under Section 221(g) of the Immigration and Nationality Act, that is to say, the Department of State collected tens of millions of dollars from visa applicants, only to put their applications on hold.

Year 221(g) findings in Immigrant Visa Cases 221(g) findings in Nonimmigrant Visa Cases Total
2009 273,227 616,284 889,511
2010 286,889 694,620 981,509
2011 312,968 837,477 1,150,445
2012 303,166 806,773 1,109,939

More stunning is the wait time that thousands of visa applicants are subject to. The US Embassy in London publishes on its website a list of nonimmigrant visa cases subject to 221(g) administrative processing and the intake dates of the applications.  As of October 25, 2013, the list encompasses 141 pages and thousands of applicants.  6 individuals have been waiting for four years for action on their applications.  More than 100 individuals have been waiting more than three years. More than 100 individuals have been waiting more than two years. And while the list includes thousands of cases that have been closed or acted upon, the number of pending cases is astonishing.

The good news is that visa applicants subject to 221(g) do have recourse.  While visa applicants as a general rule are unable to find legal succor in US courts for visa denials, they do have the right to sue US embassies and consulates around the world, as well as the Department of State and Department of Homeland Security, in a US federal district court when no action is taken on a visa application. The US government does not have the right to interminably suspend action on a visa application; it must take a decision. While there is no hard-and-fast rule as to what qualifies as a reasonable timeframe in which the government must make a decision – individual circumstances are important – any B, F, J or immigrant visa applicant whose application has been pending for at least 18 months should consider filing a writ of mandamus lawsuit against the government.  (Because the validity of work visa petitions, such as H-1B and L-1 visas, is limited, a different calculus is appropriate in attacking 221g delays in this context.)

Just the threat of litigation alone may serve as a deterrent to the open-ended visa processing. And if not, then visa applicants should file such lawsuits so that the government will understand that it must act, that it cannot sit on applications, that it cannot engage in perpetual fishing expeditions.  The Departments of State and Homeland Security may not be accountable to visa applicants for delays and inaction, but they are to judges.