For Long Delays, Mandamus Works.

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I’ve known this for years because we won one of the first visa-delay cases – ever.  The year was 2005, 4 years after 9/11, which resulted in the creation of a new government security bureaucracy. This bureaucracy has grown exponentially over the years – with more and more agencies and personnel involved in the decision-making process, triggering more and more delays. The recent pandemic made the situation much, much worse – leading to colossal delays in adjudicating petitions and visas.  As a result, the time has never been more ripe than now for the filing of mandamus lawsuits. The last month alone provides testament.  In a B-1 visitor visa case that had been pending under Section 221(g) for more than 5 years, we filed suit against the Department of State.  Within 3 ½ months of the filing of the lawsuit, our client was issued a visa. In an I-829 EB-5…

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A Visa Applicant’s Bill of Rights – What the Department of State and Your Local US Embassy/Consulate Often Do Not Want You to Know

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For visa applicants, the cards seem to be stacked against you.  Among the hurdles a visa applicant must face: The law places the burden on the visa applicant to prove eligibility for the visa and that he or she is not inadmissible to the United States. There are inadequate consular resources; at busy posts, consular officers can only allot a few minutes to a visa adjudication. There is no formal administrative appeals process of a visa denial (no Administrative Appeals Office, Board of Immigration Appeals, Board of Alien Labor Certification Appeals). With limited exception, there is no judicial review of visa decisions because of the  doctrine of consular reviewability. There is limited public accountability: no Department of State (DOS) Visa Ombudsman, no formal Complaint Procedure, and no formal recusal process. Section 428 of the Homeland Security Act grants the Department of Homeland Security (DHS) a vital role in the visa…

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

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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…

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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…

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