Administrative Processing: What is it, and What Can be done?

Oftentimes an applicant for a visa at an overseas United States consular post will have his application sent for additional review immediately following the visa interview. This process is known as, administrative processing.

Unfortunately for the visa applicant and his family, the reason for this additional processing is never made clear. It is also often unclear how long

People also often ask how long the administrative processing will take. this is difficult because the timetable for completion of the processing is never known in advance.

The US Administrative Process: What is Really Happening?

It is impossible to know why “administrative processing” is occurring.

Oftentimes during this period, the Department of Homeland Security or FBI will conduct further background checks on an individual or, the consulate will consult Department of State attorneys concerning particular aspects of a case.

US Administrative Processing: How Long Does it Take?

The DOS Administrative Processing web page informs us that, “most administrative processing is resolved within 60 days of the visa interview.”

Unfortunately, many individuals experience months, if not years, of “administrative processing”, with no explanation provided at all.

Although there is no definitive data on this subject, anecdotal evidence reveals the longest delays occurring at posts in the Middle East and Asia.

Can Anything be Done to Speed up the Administrative Processing Timeline?

Depending on the facts, yes.

My office has had success fighting the Department of State in federal court through the filing of what is called a mandamus lawsuit.

In this situation, we are asking that a court enter an order demanding that the overseas consulate make a judgment on a particular visa application.

Examples of our recent victories, each resulting in completing an administrative processing and the granting of a visa:

I have found that once such a lawsuit is filed, a decision on the visa is almost always processed quickly.

For families facing delays overseas, a mandamus lawsuit is one option to consider.

US Visa Administrative Processing

Please do not hesitate to contact my office by phone ((212) 901-3799) or email (michael@mzglaw.com) with any questions about administrative processing and how my office may be able to help.

***Attorney advertising; Prior results do not guarantee a similar outcome***

 

Obama’s DREAM ACT Announcement: Buyer Beware

On June 15, 2012, President Obama announced that his administration will soon begin to grant benefits to certain individuals who may have qualified for relief under the never-passed DREAM Act.  Those that qualify will be granted work authorization and a temporary promise not to be removed from the United States.  An Immigration & Customs Enforcement (“ICE”) Memorandum explaining the announcement and providing a fairly detailed set of questions and answers can be read HERE.

(UPDATE: On July 19, 2012, the Obama Administration indicated that applications for DREAM benefits will begin to be accepted on August 15, 2012)

Who Qualifies?

As of the date of this post, the Obama Administration has explained that qualifying individuals will have:

1. Come to the United States under the age of sixteen.

2. Continuously resided in the United States for a least five years as of June 15, 2012, and were present in the United States on June 15, 2012.

3. Graduated from high school or are currently in school, obtained a GED, or have been honorably discharged from the Coast Guard or Armed Forces of the United States.

4. Not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.

5. Are under 31 as of June 15, 2012.

“Buyer Beware”

For those DREAMERS currently in removal proceedings, President Obama’s announcement is unquestionably a game-changer —  a possibility of a temporary, and even a long-term reprieve from the prospect of being removed from the United States.

Other DREAMERS not currently in removal proceedings are also understandably excited about the prospect of being able to remain in this country and work legally.  But, “buyer beware.”  DREAMERS must temper their excitement with the following “fine print”:

(1) President Obama’s announcement does not create a path to a green card or citizenship.

(2) Even where deferred action is granted, DREAMERS must re-apply every two years.

(3) President Obama’s policy could be reversed this November by a Republican President, or, anytime in the future for that matter.

Therefore, DREAMERS not in removal proceedings must balance their need for work authorization with the risk of announcing their presence to the United States government.  This should be a carefully considered decision.  Any attorney advising a DREAMER concerning DREAM ACT relief MUST advise the client of the potential risks involved with filing for benefits or he is failing to perform his ethical duty to properly advise.

Finally, while on the point of unscrupulous attorneys, as of the date of this blog post, no specific instructions have been published by the Obama Administration detailing how DREAMERS can file applications for benefits.  Any lawyer (or non-lawyer) advising DREAMERS they can submit applications now should not be trusted.

 

 

 

 

“Secure Communities” to Increase Immigration Detention: But Don’t Assume that Detention is “Mandatory”

What is “Secure Communities?”

Have you heard? The Obama Administration announced that its Secure Communities Program would be implemented in New York City beginning this week.  Under the program, which has already been implemented in other jurisdictions across the country, the fingerprints of anyone booked by local or state police will be checked in Department of Homeland Security databases to determine, among other things, the immigration status and criminal history of the offender.  Based on the results of a search, DHS officials have the power to ask police to hold the person until he is picked up and detained by federal agents.

Secure Communities provides the Department of Homeland Security with a powerful tool by which it may detain and place non-U.S. citizens in removal proceedings for criminal violations that may have occurred years, if not decades ago.  While immigration  and administrative processing officials have sought to mitigate criticism of the program by assuring the public that it is “decrease[ing] [the] detentions of illegal immigrants stopped for speeding or driving without a license”, the message Secure Communities sends to all green card holders and nonimmigrants alike is clear: be careful.

What can I do if a client, friend, or family member is placed in immigration detention?

It is inevitable that Secure Communities will lead to the detention of a significant number of non-U.S. citizens in New York City who have old criminal records.  And, following clear Board of Immigration Appeals precedent, DHS trial attorneys will argue, and Immigration Judges will hold that the law requires that such “criminal aliens” be detained – without the opportunity for release following a bond hearing – until immigration proceedings are resolved, no matter how old the criminal act.

Don’t buy this argument – skip immigration court and go to federal court.  Many federal district courts across the country, including those in New York and New Jersey, have rejected the position that a “criminal alien” should be subject to mandatory detention when the non-U.S. citizen is picked up and detained by DHS years after the criminal conviction for which he now finds himself “removable.”

If your client, or someone you know or love, has been detained as a result of a criminal conviction from years ago, don’t accept mandatory detention as inevitable – it isn’t.  Find an immigration attorney experienced at obtaining the release from “mandatory” detention in federal court.  Release from immigration detention is a critical first step in resolving a criminal immigration case favorably.