*Practice limited to federal immigration law. Licensed in NY, MA, but not in CA.

Is Administrative Clearance The Same As Administrative Processing

 

Today, we’re talking about visa delays, 221G, and administrative processing. The question comes from one of the members of our Facebook group. It’s free to join and I’d encourage you to join if you’re interested in these sorts of things.

The question says, “I am a petitioner green card holder. I filed for my spouse and kid in 2019. In March we had an interview at the Uzbekistan Tashkent embassy and were refused under Section 212A4A public charge.

“They asked for a tax transcript for 2019. This year is 2020, February, and I sent them the transcript for 2019. And after a couple of weeks, on March 9th, 2020, I received an email that stated that they refused under 221G and put us under administrative clearance.”

 

The questions

1) Administrative clearance: Is that the same as administrative processing?

2) Is there an approximate timeline for this?

3) Is there anything you can do? And are we on the safe side?

There is also an email attached. It says, “Thanks for your email. The consular officer reviewed the financial documents submitted and now your case is refused under 221G. The consular may require further documentation to conduct an administrative check. In addition, the consular officer requested additional administrative clearance.”

What does all this mean? Let me give you my opinion on that.

 

How I help people

In case you don’t know me, I’m Josh Goldstein, an immigration lawyer in Los Angeles. I help people and families get their visas out of administrative processing. I hate administrative processing and I sue consulates. I file writ of mandamus lawsuits against consulates around the world, and I do it to help people just like you.

They are people who are frustrated and sick and tired of waiting. They are tired of being given these meaningless messages from CEAC and by email. Today, I’m going to answer these questions:

 

If you don’t have your visa

Number 1: If you don’t have your visa in your hand and you’ve had an interview, then there are only two possibilities:

One: If the consulate has denied your case, it’s over. They are not going to give you the visa.

The other possibility is that your case is subject to some sort of a delay and this delay has many different labels. One phrase they use is 221G, the other is administrative processing, and yet another one is refused.

Refused sounds a lot like denied but refused does not mean denied in this case. It means that everything is pending but they’re waiting to make a decision. And I think that’s exactly what’s going on here.

 

Meaningless phrases

Now what is administrative clearance? This email says that in your case the consular officer requested an additional administrative clearance. What does that mean? I have no idea. It’s a meaningless phrase.

I consider administrative processing to be a meaningless phrase. They don’t tell you what they’re checking. They don’t tell you how long it’s going to take. They don’t give you any information about the nature or the cause of the delay.

Anytime you hear the words 221G, administrative processing, or administrative clearance, all you need to know is that this is a mysterious delay. That’s it.

 

Everything is pending

It also says that the consular officer may require further documentation to make a decision. So what this tells you is that a decision has not yet been made. Everything is pending.

In federal court, when I file a mandamus lawsuit, the lawyers for the consulate will often make the argument that the visa has been refused and therefore the case is moot because nothing else needs to be done. It’s been denied.

But time and again this argument has been dismissed because it’s a stupid argument because if the visa had really been denied, why would they send you an email that says that they’re going to request further documentation to make a decision? It clearly tells you that no decision has been made.

So to answer your question, administrative clearance is a meaningless phrase. It doesn’t mean anything. Nobody knows whether it’s something different from administrative processing.

 

What’s the timeline?

The second question you have is whether there is any approximate timeline for this. One of the hardest things about administrative processing is that they never tell you how long something is going to take. They never give you an estimated timeframe.

In fact, when they notify you that you’re in administrative processing, they tell you straight away that there is no time limit for this. There is no estimated timeframe for processing. They also don’t publish any information about the processing time for administrative processing. So the answer to your question is who knows.

You’ve already waited for quite some time. You had the interview in March of 2019. Actually it was just this month. So we don’t really know how long it’s going to take. And then it says, is there anything we can do? Are we on the safe side?

I have a few things I can tell you:

 

What you can do

First of all, about the solution to administrative processing… there are basically two things you can do.

First, you can try and wait it out. And that works for some people. Sometimes you can wait and get a decision on your case.

The second thing you can do, and this is where I come in, is that you can file a writ of mandamus lawsuit. You can sue the consulates. And if you sue the consulates, you’re very likely to get a decision quickly.

Most people who hire me to file a writ of mandamus lawsuit get a decision in a couple of months. So that’s what you can do. You take action. If you’re sick and tired of waiting and you want to get your wife and your kids back quickly, you can challenge this delay. You can sue them and I can help you do it.

 

The “public charge” issue

The other thing you mentioned is that there was an issue about a public charge. So I just want to say a few words about that. First of all, public charge is a new thing that the Trump administration came up with. Though actually, it’s not a new thing. It’s been in the immigration laws for many years.

But a reinterpretation of public charge was created and came into effect very recently by the Trump administration. Essentially, they’re trying to check to see that the person who’s seeking a green card is not going to go on welfare or take public benefits.

 

What you must do

First of all, you’re going to have to fill out a form called DES 54:40. So if you haven’t done that, take a look at this questionnaire, go through it, and if you have questions, let me know. But you’re going to need to tackle that.

And the second thing to keep in mind is that there are many different factors. Before the public charge rules that the Trump administration put into effect, the only thing that they would really look at is the affidavit of support. The affidavit of support was the only thing that we had to deal with.

And now, we have to deal with the DES 55:40, and they’re looking at these factors: age, health, family status, assets, resources and financial status, education and skills, prospective immigration status, expected period of admission, and an affidavit of support.

So it’s not just the affidavit of support. It’s these other factors. You have to fill out the DES 55:40 and you have to go through that. Cases can be denied under the public charge grounds, but I don’t think that’s what’s happening here. What’s happening here is that they’re just asking you for financial documents, which you have provided, and they’re making you wait.

I hope this answer was helpful. If you have questions about this or anything else, please let me know. I’m here for you. And if you’re sick and tired of waiting and you want to explore a mandamus lawsuit, message me and let’s get started on this. Let’s figure out a solution for you.

Josh Goldstein
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