Brother in law (Iran) received NOA for O1 visa a year and a half ago, we sued with a Writ of Mandamus and WON, he had his interview, now they're putting him back into Administrative processing

[xmasgirl 0]

We're seeking advice on what to do next. It's been 1.5 years. The govt said he passed the background check in an email about 6 months ago. 

 

A year and a half ago, we submitted his O1 application. He is coming from Iran. He was approved in 4 days, November 2022. We couldn't get him an appointment for interview for months but finally got one. Right before his interview, they emailed and said he's going under background check.

 

At the 6 month mark, we sued with a writ of Mandamus for excessive delay for the background check.

 

The government responded and said oh its NOT the background check BUT said he should have never received his O1 and gave a list of reasons.

 

We responded with proof of why he should and addressed all their issues.

 

This went back and forth a few times.

 

About a month ago we received an email saying he was approved for his visa!! USCIS sent us the Notice of Approval. He and his family went to Austria for their appointment last week.

 

The interview went well. However, at the consulate, they said PIMS hadn't been updated with his status. They also asked him to respond to questions in an email. The questions seem like background check questions for the DS-5535.  HOWEVER the questions were in an email, and he was not asked to specifically fill out the form and sign it. We're worried that they may come back in a year and say, oh, you didn't sign or fill out the form. Also, he did this Administrative Processing about 10 years ago and it took 4 years for him to get an appointment. At the appointment, they said Muslim Ban, sorry! 

 

We contacted USCIS and asked them to update his status in PIMS. We knew the judge in the case was already pissed off with the government.  They did update his approval in PIMS a few days ago. 

 

My BIL just sent the response to all the questions and the embassy has thrown him into administrative processing again.

 

He's been on hold for 1.5 years.

 

Has anyone experienced this? After waiting 1.5 years + writ of Mandamus lawsuit to now go through administrative processing again??

 

One of our attorneys says we can piggy back on the last writ of Mandamus and not have to wait another 6 months. But we're not sure. The government already said he passed the background check. We have an email from them.

 

• Does anyone know how we can find timeline on Administrative Processing for O1 visas? 
• Can we piggy back on our last Writ of Mandamus since they already said he passed background check and they spent 4 years the last time approving his administrative processing? 

 

 

This is so just so frustrating.

[milimelo 4,508]

Administrative processing is something that involves several agencies from what I have seen reported here. You try to do mandamus, they can come back and say not sufficient time to complete the checks, visa refused.  So think hard if and when you want to try that process for administrative processing. 

 

And BTW, he received approval of O-1 petition, not visa - visa is a consular process, petition is USCIS process. 

[xmasgirl 0]

12 minutes ago, milimelo said:

Administrative processing is something that involves several agencies from what I have seen reported here. You try to do mandamus, they can come back and say not sufficient time to complete the checks, visa refused.  So think hard if and when you want to try that process for administrative processing. 

 

And BTW, he received approval of O-1 petition, not visa - visa is a consular process, petition is USCIS process. 

 

I'm confused. An O1 on USCIS's website is listed as the following: The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics.  

 

He went to the consular in Austria, after USCIS sent his approval letter, after we sued under a writ of mandum, and he had an interview there. 

 

He's done the background check so many times and they always come back with nothing. How is this legal? 

Edited April 25 by xmasgirl

[appleblossom 2,803]

18 hours ago, xmasgirl said:

 

I'm confused. An O1 on USCIS's website is listed as the following: The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics.  

 

He went to the consular in Austria, after USCIS sent his approval letter, after we sued under a writ of mandum, and he had an interview there. 

 

He's done the background check so many times and they always come back with nothing. How is this legal? 

O-1 is a visa (I’ve had one) but it’s a two step process - USCIS approves the petition, then the actual visa approval is done at the consulate. It sounds like he’s only been approved by USCIS so far? 
 

Unfortunately being from Iran he’s very likely to be put in to extended AP every time. Passing a background check once doesn’t mean anything I’m afraid, it’s likely to have to be done anew each time. 
 

If he’s now had the petition approved and an interview he’s one step closer. All you can do is wait out his AP or file another WOM but as said above that could be risky as they may just decide to deny his visa given his history. 
 

Another thing to consider is applying for an immigrant visa via EB1? Although he’d still be subject to AP of course but he could start that whilst his O is being processed. 
 

Best of luck to him. 

Edited April 26 by appleblossom

[Boiler 45,733]

The background check is completed after the interview and he is found approvable for the visa.

 

Sounds like a WoM worked for a prior part of the process.

 

The issue is Iran for very obvious current reasons plus those interviewing in Third Countries tend to take longer.

[SalishSea 17,970]

On 4/25/2024 at 9:41 AM, xmasgirl said:

He's done the background check so many times and they always come back with nothing. How is this legal? 

How do you know "they always come back with nothing"?  Department of state does not make those results available.

 

You seem surprised that this is happening.  The US does not have diplomatic relations with Iran, so it is completely expected.

 

WOM cannot waive or expedite background checks.  Seems like perhaps you received faulty legal advice.  It can compel a decision, but if the extensive security process done for Iranians is not complete, that decision defaults to a denial.