In a prior post, I wrote about the Asymmetric Stakes of a First-Time Visa Application and the Prior Refusal Spiral. In that post, I suggested that while the Prior Refusal Spiral is difficult to climb out of, it is possible. This post deals with complex situations that are not amenable to adequate explanation in a 2.5-minute interview. The strategy described below applies to clients and applicants in the Prior Refusal Spiral, just as it applies to applicants who have a prior denied petition from USCIS, a prior prudential revocation of a visa, a prior secondary inspection at a port of entry resulting in withdrawal of entry and a visa cancellation, and all other complex situations.
The Problem: “Timing Out” in a 2.5-Minute Interview
When I was a Consular Officer serving at U.S. embassies and consulates around the world, at least once a day I interviewed a visa applicant who presented with a complex situation. To be fair, every visa interview was complex, and I will share more about this in a future post. But not all complexity is equal, and on a daily basis I would invariably encounter at least one person whose situation required more time to understand than I had. For reasons which I will share in a future post, visa interviews are about 2.5 minutes long. And while there is an occasional opportunity to go over 2.5 minutes, there are not many such opportunities. For this reason, complex visa applicants run the real risk of “timing out” with the consular officer. Timing out simply means that the consular officer cannot discern some fundamental fact, or answer for himself or herself some fundamental question about the applicant, and there is no time remaining for the interview. When an applicant times out, more often than not the result is an INA § 214(b) refusal.
As a Consular Officer, I had a personal aversion to timing out where I believed my inability to understand the situation was due to my own inadequacy, or due to the complexity of the situation (versus my inability to understand being caused by the applicant).
I believed I owed a duty to the Department and to the American public to make the time to understand. Further, since I was unable to “make” the time on the visa line doing the 100 or so interviews for that day, I would, on my own accord, issue an INA § 221(g) refusal and explain to the applicant that I was refusing the application for administrative processing. I would explain that the situation was complex, and that I needed more time to review the material and conduct analysis. I would explain that I intended to conduct this review later that day, the next day, or within two days, and that at the end of my additional review and analysis, I would render a decision that supersedes the 221(g) refusal – and that this superseding decision would either be an issuance or a second denial.
What I Saw at the Window
No one ever asked me to put their case in 221(g) administrative processing. Not one single person out of the 35,000 interviews I conducted ever asked me to put their case in 221(g) administrative processing. Yet, almost universally, when I, myself, decided that I was putting a case into 221(g) and explained why to the applicant, there was relief expressed by the applicant. You could actually see this relief manifested in real time – the muscles in their faces relaxed, they breathed differently, their posture changed. As I write this post, I can’t think of a single case where the applicant wasn’t grateful that I was expressly setting aside an additional 10 minutes to carefully review the material they prepared in order to fully understand what couldn’t be understood in 2.5 minutes.
The Strategy: Asking for the Tourniquet
Now, as Senior Counsel with Kuck Baxter, I have taken this strategy born from my experience as a Consular Officer, and I teach it to clients who have precisely the right type of situation that calls for it. I’ve named it The Tourniquet Strategy, because a visa applicant who intentionally asks for a 221(g) refusal is strategically seeking to “stop the bleeding” caused by a complex situation that cannot be adequately understood by a consular officer in 2.5 minutes – no matter how hard the applicant and the consular officer try.
To be sure, The Tourniquet Strategy is not appropriate for every visa applicant. In fact, I would suggest that it is the rare case and the rare visa applicant where The Tourniquet Strategy should be employed. But when used in the right case, and when applied correctly, the strategy can move a case from what is surely to be a 214(b) denial to visa issuance.
To be effective, clients and applicants need to be prepared by an attorney with consular officer experience on how to use and employ The Tourniquet Strategy. Further, the “explanation” of the complex situation – the written attorney letter and supporting materials – should be carefully prepared an attorney who understands the strategy and, even more importantly, understands how consular officers think and react. If The Tourniquet Strategy is not employed by the applicant correctly, or if the right attorney-prepared material is missing, the possibility of a negative outcome exists.
If you are a prospective visa applicant and you have a complex situation that more likely than not cannot be adequately understood in 2.5 minutes, we recommend that you consult with us to understand whether The Tourniquet Strategy could be effective for you.
