221(g): Visa Application Status Check Leads to Refusal Shock

Visa applicants whose applications were pending under Section 221(g) received a shock yesterday morning when they went to check the status of their cases on the Department of State’s website.  Suddenly, the status of their cases changed to “Refused” from “Administrative Processing”.  Imagine the trauma inflicted on applicants who have been waiting months or even years to see that suddenly, their applications had been refused: their chance to immigrate, visit, study, or work in the US was denied.

Only after reading the remaining text on the Status page does it become clear that the applications were not definitively denied, that they remain under adjudication, i.e, no final decision has been made. The small explanatory note under the bold heading of Refused states:

If you were informed by the consular officer that your case was refused for administrative processing, your case will remain refused while undergoing such processing. You will receive another adjudication once such processing is complete.    

Another indicator that the 221(g) status remains unchanged is the “Case Last Updated” line.  This line reflects the date of the substantive last action on the case, i.e., it does not reflect yesterday’s date, but the date on which the last actual action was taken on the application.

While legally speaking, a 221(g) decision is a refusal, the sudden change in nomenclature impacted thousands of pending applications. Most frustrating is that the Department of State did not make any corresponding announcement; it failed to notify the public in advance of its intention to change the Status terminology.  In failing to do so, the Department needlessly sent into a state of panic many of these individuals.  The Department could have easily distinguished on the case status page between a final decision and a decision pending under 221(g) by indicating, for example, Refusal 221(g), instead of just Refusal. But it did not.

One can certainly question the Department’s motives for making this change. For example, as more and more visa applicants explore the possibility of visa mandamus litigation against the Department of State for long-pending visa applications, the Department of State can now tell the judge: “We did make a decision on the visa application. It was refused.”  Of course, any rationale judge will understand that the application remains under review for final decision, and will not excuse the Department of State for its laxity in delaying a final decision.

If your visa application has been pending for at least 12 months, please contact us. We are one of the few firms with experience in suing the Department of State. Let us put our experience to work for you.