US Visitor Visas and Suing for Mandamus: Advice from a Success Story

Today, I got my passport back via courier with a US visitor visa (B1/B2) stamped in it, valid for ten years. This now marks the end of a saga that has spanned more than 7 years in a bid to get a US visitor visa.

Problems began for me in September 2015 when my ESTA (the electronic system that allows 90-day visits to the US without a visa) was revoked. Although subsequent changes in rule regarding travel history mean that I would not be entitled to an ESTA today anyway, it was apparent that I had been placed on some kind of watchlist prior to those rule changes and so even before I first applied for a visa in January 2016, I knew it was highly likely that I would be placed into that vague category called ‘administrative processing’- a term for extra processing time to determine eligibility for a visa, but the nuts and bolts of which are poorly understood, to say the least, whatever you might find written on the Internet about it.

I also knew, based on the experience of a friend who similarly had his ESTA revoked for apparent security reasons and had to apply for a visa, that it was likely that such 'administrative processing would take an extended period of time. Thus, as my friend put it to me after I informed him that the application (as predicted) had been put into administrative processing: "You can forget about going to that conference"- referring to an invite for me to attend a conference in the state of Georgia in February 2016.

The difference though is that whereas my friend eventually got his visa after a period that lasted just under 3 years, I found myself stuck in administrative processing well beyond this point. Only after an unpleasant experience of being detained by the UK counter-terrorism police in December 2019 and then applying for redress to the Department of Homeland Security (DHS) did I get any sort of substantive answer on the application, as I was informed by the State Department that necessary “updates” to my record were made and thus I should check again on my pending visa application. This answer though only turned out to lead to a dead-end by mid-2020, as the embassy to which I had originally applied claimed to me that the administrative processing was “complete” but my application needed to be “re-evaluated,” which I could only do by filing a second visa application at the embassy of the country where I currently resided.

In the end, I followed this advice of filing a second visa application and in the meantime had already been admitted to the US twice in 2021 and 2022 on the basis of temporary "parole passes" to attend legal proceedings as an expert witness for cases pertaining to terrorism and national security. Note that the "parole pass" is a document that bypasses the visa system and can even be used to admit someone who might be ineligible.In my case, it was issued and processed through coordination between the courthouse, FBI and DHS.

Given what the first embassy where I had applied had told me and given my prior admissions into the US, I felt that there was some basis for optimism when I attended my visa interview in September 2022, only to be told that my application had to be placed into administrative processing. I was also told to supply information on my 15 year travel history (including source of funding for each trip), 15 year employment history, 15 year residential history, the names of siblings, former/current civil partners and spouses, public social media handles, and email addresses and phone numbers over the past 5 years (in other words, the same questions put to those who are told to file a DS-5535 form as part of so-called "extreme-vetting").

At this point, I admittedly became quite depressed: my first visa application had effectively been put aside with a refusal to come to a decision about it, and it seemed likely that my second visa application was going the same right. I was only persuaded by prompting from my parents to look into legal options (though they had no particular knowledge of this kind of situation, they simply suggested it as a matter of instinctive reaction to the dilemma I was facing). I had been reluctant to look into this route because I had initially come to think that there was no legal recourse for those stuck in administrative processing for visitor visa applications. The reason I gained this impression was because I had looked into legal avenues (specifically, the mandamus option, which I will discuss below) back in 2020. At the time two US-based lawyers who focus on litigation for visa delays gave me the impression that it was effectively not possible to take legal action for a B1/B2 visa stuck in administrative processing. One of those lawyers was Joshua Goldstein, whose services are among the first that appear to turn up on Google searches for mandamus and delayed visas). He told me in March 2020:

"I don’t know how to get a visitor visa approved if it’s stuck in administrative processing. I only deal with immigrant visas or other non-immigrant visas, but not a visitor visa, so I don’t think I can help you out."

Goldstein repeats the same reasoning on his website in a section where he says: "Most visitor visa applications, unfortunately, are denied, and you have very few legal rights when it comes to an application to visit the United States…a visitor visa seems like too thin of a story to me, and I would not take on a case like that." The other lawyer offered a similar but slightly more nuanced rationale in January 2020, saying: "For a visitor visa- it's [a] tough sell. US federal courts are set up to be venue for US persons and entities to their settle disputes [sic]. Unlike with immigrant visa, you don't have a US entity vested with interest in your visitor visa."

It is possible that in light of the subsequent court hearings in which I had to attend as an expert witness, their views of my particular case might have changed. Nonetheless their remarks left me with the feeling that there were no legal avenues for visitor visas, so I did not follow up further with them. This sentiment was reinforced by the websites of many law firms I visited from time to time, advertising services for dealing with long delays in decisions on US visa applications. They all seemed to have in mind cases of immigrant visas and other non-immigrant visas besides visitor visas.

While browsing again the websites of lawyers and law firms at the end of September 2022, I came across the site of a London-based American lawyer called Melissa Chavin, who had sections on her website on visa decision delays and visa ineligibilities that I found intriguing, and decided to give a shot at contacting her to see if there was anything that could be done. Following an initial email exchange and a subsequent online consultation, she noted that litigation via the mandamus route was an option, and she ultimately referred me to the US-based immigration lawyer Jesse Bless, who told me that my case was the “worst nonfeasance” he had seen all year, and confidently assured me that a mandamus suit would deliver a decision on my visa: either getting the visa approved, or at least achieving closure through a visa denial.

Trusting Melissa’s recommendation and also reassured by Jesse’s confidence on the matter, I decided to go forward with filing a mandamus complaint, which was officially filed against Antony Blinken, who heads the US State Department (which is responsible for dealing with non-immigrant visas). This complaint was filed on 6 October 2022. Now, in just under three and a half months later, I have my visa in-hand, and the legal case is to be dismissed. Jesse was professional and prompt in responding to my queries and keeping me updated on what was going on, and I am immensely grateful to him. He made sure we had all the information and data straight in filing the complaint with the court and thus had me review and check the statement of facts.

So what is the mandamus option I pursued? The word mandamus means "we command" in Latin and essentially involves filing a complaint about unreasonable delay. This complaint is usually against the relevant US government entity responsible for making the ultimate decision on your visa application (so in the case of non-immigrant visas, the State Department). The complaint requests a court to order said government entity to come to a decision on your application. Note that this does not mean the court can force an approval, but rather only force a decision in the event that it rules in your favour. This may be an approval or a denial.

The most important aspect to know about a mandamus case is that it does compel the government to respond in a meaningful way to the complaint. Once the case is served on the government (which is the defendant in this case), a 60-day countdown (including business days and weekends/holidays) begins for the government to respond, during which time an attorney of the Department of Justice is assigned to the case to represent the government. In my case, the complaint was served on the government on 11 October 2022, giving an initial deadline of 11 December 2022 to respond.

In the end, there are only two options for the government: settle the case by coming to a decision on the visa application without further proceedings, or fight the case by filing a motion to dismiss the complaint. In the latter scenario, the judge assigned to the case will examine the complaint, the government’s motion to dismiss, the response to the motion to dismiss (which will be filed by the lawyer representing you), and a reply in support of the motion. Following this, he/she will make a decision on whether the complaint should proceed further or be dismissed.

It is also possible that the government will ask for an extension of the 60-day deadline to file a response, but contrary to what one friend pessimistically predicted to me, the government cannot indefinitely delay filing a substantial response, and extensions can only be granted a limited number of times. Either the case is settled with a decision on the visa application, or the government has to justify with substantive reasons the delay in making a decision and why that delay should continue for the time being.

In practice this means you should hear an important update on your case in 2-6 months. In my case, the government requested an extension (apparently because the Department of Justice attorney was assigned to the case very late in the initial 60-day deadline), but only a one month extension was granted, and the case was effectively settled by 27 December 2022 when my passport was requested for visa issuance, making it clear that the visa had been approved.

Looking back, it is evident to me that filing a mandamus complaint was really the only effective way to get the government to pay attention to my visa applications and come to a decision. I have mixed feelings about this. While I am delighted that I finally have a visa and can visit friends, colleagues and some relatives who have largely been separated from me by these visa troubles, obtaining a visa via mandamus litigation has also come at a substantial financial cost: be prepared to pay in the realm of $6000-7000 for the initial drafting and filing of the complaint, and perhaps an extra $2000 if the government files a motion to dismiss. Litigation in general is not a cheap option for resolving problems of any kind.

If there had been a way to get a visa decision without resorting to litigation, I would definitely have pursued it. Yet I can assure you from my own experience that even if you might seem to be very well ‘connected’ with people in government and security circles, there is little chance they can do anything to resolve the problem of a visa stuck in administrative processing (which, as I have noted, is an extremely opaque process, similar in opaqueness I would say to understanding the internal dynamics of the Syrian government, to make an analogy with some of my analysis specialisation).

For instance, some suggested that it might be worthwhile to use connections with Department of Justice attorneys in terrorism/national security cases I have worked on to resolve the visa problem. Melissa herself had also raised the idea as one possible option. However, one Department of Justice attorney I was working with on a case at the time explained to me that in truth he had no power or authority to assist in obtaining a visa, and that he could only work on arranging a parole pass.

Another option could be to take your case to a prominent media outlet to raise some noise: witness the examples of James Harkin in the New York Times (administrative processing delay) and Jonathan Spyer in the Wall Street Journal (outright visa denial on the absurd basis of supposed links to ‘terrorism’). However, not everyone has the connections to get published in such prominent outlets, and I cannot say with certainty that their raising such noise actually led to visa approvals on their part. Like me, Spyer had also initially tried the avenue of looking into his case ‘connections’ he might have, though in vain, prompting his decision to go public about his case.

In short, the mandamus option- for an indefinitely delayed decision on a visa application- will guarantee meaningful government attention to your case, whereas these other options cannot guarantee that. While the mandamus option cannot guarantee a settlement based on a decision on your visa application, it will otherwise at least compel the government to explain itself and give a justification for a long processing time.

It should also be clear from my own experience that it is possible and feasible to file a mandamus complaint for a visitor visa that is stuck, contrary to the impression Goldstein conveys on his website. To be sure, the facts of my case were, as Jesse put it, "almost unbelievable" in terms of the ridiculousness of the situation, and as such it would have been practically impossible for the government to justify a dismissal of the complaint. After all, there is absolutely no justification for refusing to make a decision on a visa application and telling the applicant to go and file a second application. Further, my case was probably further strengthened by my involvement in legal cases in the US as an expert witness, providing a compelling reason to allow me to have a visitor visa. However, even if you do not have such a rationale for going to the US (e.g. you just want to visit for tourism purposes like going to Disneyworld Florida), the simple fact is that the US government is required to make decisions on visa applications of all kinds. It is illegal to sit indefinitely on an application and/or delay it for an absurd amount of time.

Thus, if you are applying for a visitor visa and you find yourself stuck in administrative processing for a very long period of time (I would say 4 years or longer), you should pursue the mandamus route if you can afford it. You also should pursue it if, say, you have only waited for a shorter period (e.g. 2-3 years) and it becomes clear to you that the government has no intention of making a decision on your initial application, and you have no other means of resolving the matter. In retrospect, that should have been clear to me once I was told to file a second visa application without a decision on my first application. That constitutes simple mistreatment. If you get any kind of response along those lines from the embassy where you applied and you can file a mandamus suit, you should do it.

Finally, there are also a couple of myths about filing mandamus suits to be clarified. The first, which is effectively answered also by many lawyers who deal with these cases, is that the mandamus suit will trigger ‘government retaliation’ against you in some way: e.g. that the government may decide to deny your visa application simply because you filed the suit. This is not true. The reality is that when a visa denial is issued, it has to be for a concrete reason in accordance with laws pertaining to visas and immigration. For instance, you can be denied a visitor visa because the government suspects you have immigration intent, or because of some link to ‘terrorism,’ but the reason has to be given in the denial. There is no denial without statement of the reason.

The second myth, linked to the first, is that filing a mandamus may trigger a denial because the administrative processing is not ‘complete.’ This is also not true for similar reasons. As noted above, the grounds for denying a visa are specific. None of them pertain to whether administrative processing is ‘complete’ or not. If the government believes there to be a ground for ineligibility in your application, it will state that reason for ineligibility in denial of the visa. If there is no ground for denying the visa, it will approve it. Conversely, if the government really believes your case merits further administrative processing before a decision can be made and/or can come up with a reason for delay (e.g. the disruption to visa operations caused by the COVID-19 pandemic) and it is facing a mandamus suit, then it will have to explain its reasoning along those lines in a motion to dismiss.

In sum, individual cases for delayed visa decisions vary, and the decision to file a mandamus suit should not be taken lightly. In my own case, however, I am sure it was the right decision to take, and I want to thank Jesse Bless, Melissa Chavin, and also my parents, who initially encouraged me to think about litigation again and reconsider my impressions, and supported me throughout the process. I hope also this post serves as useful advice for anyone with a visitor visa stuck in administrative processing and wondering what to do.