Hundreds of applications each year for visas to the United States are processed each year. During the last several years visa applicants are increasingly subjected to “Administrative Processing.” This is a process that goes beyond regular processing of the application to check for visa qualification. The term “Administrative Processing” is a political euphemism for an extra background check of the applicant by U.S. law-enforcement or security agencies, looking for connections to people or groups that are considered to be security threats or to be engaged in anti-U.S. activities.
Obviously, such types of connections, if found, will result in application refusal. There are also procedural aspects to this process; there are no limits on the amount of time allowed for that process and no way to appeal the results. So we are often asked by clients who are put through this process: “What are they checking?”
There are no published rules, laws or guidelines to which private attorneys or the public have access to, and which can provide an answer this question. Law enforcement and security agencies operate quietly, if not secretly, for the benefit of their results. But current events and media reports concerning U.S. government surveillance – specifically data and information gathering – shed a significant light on the answer: Everything they can.
What strikes us most about the ongoing disclosures by Edward Snowden, Bradley Manning, Wikileaks, et al and the corresponding reports in the Guardian and select other traditional and emerging media outlets is not the substance of the disclosures themselves or the raging debate around them over whether the leakers are patriots or traitors; it is the apparent general ignorance of the natural law that if a capability exists it is used – especially tools of power used by those in power to preserve their power.
The United States is taking a lot of editorial heat in these cases and rightly so; it is guilty of the irony of declaring itself the most righteous progenitor of liberty and law whilst simultaneously doing anything and everything it deems necessary for state security. There are innumerable conflicts of word and deed inherent in that paradigm. But what it’s doing is not unique, is not new, is not going to be changed in the future, and is not entirely wrong.
Recent disclosures of NSA files directly confirm that the U.S. government collects vast amounts of electronic data. We already knew that security agencies possess the will and the means to use tools of surveillance that have developed over centuries, from the most basic forms of human eavesdropping to the most sophisticated electronic techniques that can silently and instantaneously reach across the globe. The part that is supposed to shock us is what; that the authorities keep the scope of their dragnet secret? That they break the law to achieve their goals? That they select targets by starting with everybody and then narrowing it down, instead of starting narrow and focusing exclusively?
We all know that is exactly what they are supposed to do based on the constitution: establish reasonable suspicion or probable cause based on articulable or tangible evidence of wrongdoing rather than vague indescribable suspicion, or worse yet, suspicion that is actually based on biased generalizations that violate the human right of equality because they are merely racial, religious, ethnic or class stereotypes. But that’s an academic exercise for an ideal world, removed from real time, real events, and real results. Civil libertarians around the world share a sense of despair about this. Those whose rights are violated are victimized. The ends do not legally justify the means. But reality always wins. There is a mathematical inescapability and omnipresence to it that is similar to gravity and mortality. And you can only operate productively – in essence, preserving your own mental health – if you acknowledge that fact and adapt accordingly.
What does this all mean for Administrative Processing of visa applications? An answer lawyers love and clients hate: it depends. As we have learned many times, not the least of which was one September 11th, just because government has information does not mean it is using that information effectively. For now all we can be sure of is that the government has an enormous capacity to collect information that it uses regardless of legalities.
It stands to reason, again as a matter of math, that they collect more than they can meaningfully process. Inevitably, processing errors will occur to the harm of certain applicants. Despite the opaque nature of Administrative Processing it is still a legal process, inviting challenges on either the basis of procedural violations (if the process can be discovered) or on the basis of the secrecy itself – essentially an argument that preventing challenges is fundamentally unfair and cannot be reconciled with the rule of law. The applicant’s only recourse at that point is to use their own capability to get the best lawyer they can.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
