Consular Corner - March 2009 by Consular Corner

Consular Corner March 2009 by: Liam Schwartz* -----------------------Transparency and the FAM As of February 2009 there has been a significant injection of transparency into an important aspect of the visa application process. The visa application process is underpinned by the Foreign Affairs Manual ("FAM"). The FAM is the Department of State's central resource for visa regulations, policies and guidance. http://www.gao.gov/new.items/d05859.pdf Changes to these regulations, policies and guidance are constant: according to the State Department, "updating the FAM is like painting an aircraft carrier; one can never say the job is done….We literally make changes every day." http://www.gao.gov/new.items/d05859.pdf How can citizens whose lives are touched by the visa application process gather information about the daily changes to the FAM that may be critical to their interests? By accessing the record of these changes ("change transmittals") published by the Department of State on its Internet site. http://www.state.gov/m/a/dir/regs/fam/c28347.htm For the two years of 2007 and 2008, the number of published change transmittals for Volume 9 (Visas) of the FAM amounted to about half a dozen. http://www.state.gov/m/a/dir/regs/cts/c23516.htm For the two months of February and March 2009 alone, the number of published change transmittals for Volume 9 (Visas) of the FAM reached nearly 30. Remarkable! And to those responsible – thank you!! Change Transmittals and Transparency What visa updates have we received, thanks to this new and most welcome approach towards making the visa application process more transparent through the regular publication of change transmittals? The following are just a few examples: 1) No Need for I-797 Approval Notice. One of the more important updates relates to the discontinuation of the need to submit an original Form I-797 Approval Notice at consular interviews in petition-

based visa cases. Change transmittals in February and March make it clear that the original Approval Notice should no longer be required of the visa applicant. Take, for instance, newly updated 9 FAM 41.54 N3.2 ("Approved Petition Is Prima Facie Evidence of Entitlement to L Classification"): "You should no longer require that…evidence that the L petition has been approved (a Form I-797…), be presented by an applicant seeking an L visa. All petition approvals must be verified through the Petition Information Management Service (PIMS)." http://www.state.gov/documents/organization/87229.pdf 2) Updated list of E-1 and E-2 treaty countries, published here: http://www.state.gov/documents/organization/87221.pdf 3) Interesting clarification as to when consular posts may collect fingerprints on behalf of DHS: http://www.state.gov/documents/organization/88017.pdf Section 428 Hits Home If updating the FAM is, as per the above, like painting an aircraft carrier, then making the transfer of visa authorities from DOS to DHS may be like turning around an aircraft carrier: it takes time, but eventually the new bearings become apparent. New updates to the FAM make evident that there are indeed new bearings on visa policy. As a reminder: the Homeland Security Act of 2002 was enacted in the immediate aftermath of the 9/11 terrorist attacks. Section 428 of the Act vested the Secretary of Homeland Security with exclusive authority over visa policy. The exact language used in the Act is: "the Secretary shall be vested exclusively with all authorities to issue regulations with respect to, administer, and enforce the provisions of… immigration and nationality laws, relating to the functions of consular officers of the United States in connection with the granting or refusal of visas, and shall have the authority to refuse visas in accordance with law and to develop programs of homeland security training for consular officers (in addition to consular training provided by the Secretary of State), which authorities shall be exercised through the Secretary of State…" http://www.dhs.gov/xlibrary/assets/hr_5005_enr.pdf Recent additions to 9 FAM emphasize this point in the context of petition-based visa adjudications. These additions evidence a sort of DHS Absolutism, in which consular officers are instructed that DHS interpretation of the law or the facts are all controlling. DHS has blessed the petition, the American government has spoken, and consular discretion in these cases is all but non-existent.

The following table describes these modifications in the L visa context; note that consular discretion is mentioned almost as an afterthought. These modifications serve to entrench the disturbing notion that visa officers in the consular section are the functional equivalent of registration officers in the local motor vehicle department. It would seem that the restrictions on consular authorities embodied in the Homeland Security Act of 2002 are beginning to hit home. DHS Absolutism - Just Issue the Visa

Use Your Discretion – Just an Afterthought

Definitions

You may not question the approval of L petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. 9 FAM 41.54 N3.2

If the consular officer has reason to believe, based upon information developed during the visa interview or other evidence which was not available to DHS, that the petitioner or beneficiary may not be entitled to status, the consular officer may request any additional evidence which bears a reasonable relationship to this issue. 9 FAM 41.54 N3.3-2

“REASON TO BELIEVE” The essence of the standard is that the consular officer must have more than a mere suspicion—there must exist a probability, supported by evidence. 9 FAM 40.23 N2

The large majority of approved L petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the L petition was filed. 9 FAM 41.54 N3.2

The approval of a petition by DHS does not relieve the alien of the burden of establishing visa eligibility. 9 FAM 41.55 N15.1

Disagreement with DHS interpretation of the law or the facts is not sufficient reason to ask DHS to reconsider its approval of the petition. 9 FAM 41.54 N3.2

You must have specific evidence of a requirement for automatic revocation, lack of qualification on the part of the beneficiary, misrepresentation in the petition process, or of previously unknown facts, which might alter USCIS’ finding, before requesting approval of a review of the Form I-129, Petition for a Nonimmigrant Worker. 9 FAM 41.54 N3.3-3 Posts should refer cases to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS. 9 FAM 41.54 N3.3-3 Verification in PIMS is prima facie evidence of entitlement to L Classification. 9 FAM 41.55 N15.3 "Reason to Believe" and Visa Denials The FAM's "Reason to Believe" standard (see above) brings to mind the old Bruce Springsteen standard by the same name: "Seen a man standin' over a dead dog lyin' by the highway in a ditch He's lookin' down kinda puzzled pokin' that dog with a stick Got his car door flung open he's standin' out on Highway 31 Like if he stood there long enough that dog'd get up and run Struck me kinda funny seem kinda funny sir to me At the end of every hard earned day people find some reason to believe." http://www.youtube.com/watch?v=P6lN3E4O-PQ As evidenced by the following account, "Reason to Believe" may also be the proper standard for applicants whose requests for US visas have been denied:

"On February 12 my US visa application was denied by the US Consulate in Melbourne. I will not be able to return to America as planned at the end of this month. Currently there is no other visa open to me, my only recourse is a positive response to my Green Card petition. As of today, I am still waiting to hear from the US government concerning this. So what does this mean? For now I am waiting on the Lord to show me what is next. The news was shocking and left me struggling to believe that I had been rejected. Tears come and go and feelings of grief and anxiety leak from my heart when I least expect it. I know these feelings are OK and they have not overwhelmed me. I know the Lord has a plan and He will show me the way forward and provide for me. I will be back in the USA in the near future and in the meantime I will continue to be about His business from Down Under and wherever He sends me. The timing of my visit to Australia has been very interesting. Two days after arriving at my parents, my home State of Victoria was ravaged by bush fires that have left the nation devastated. It is the worst natural disaster in Australia’s history. Fires fighters continue to fly in from all over the world to relieve and support the overwhelmed and weary local crews. Whole towns and villages have been burned to the ground, many will never recover. The fires have swept through thousands of hectares destroying property, killing wildlife and livestock and the human death toll is appalling. Families across Victoria are suffering with the loss of loved ones. Many people remain missing. As the forensic teams move through the burned debris of rural communities there are dreadful discoveries of human remains, burned beyond recognition. I have shared in the grief and suffering of the nation, I have mourned with my countrymen. I have also felt pride at the unconditional outpouring of heroism, generosity and strength of spirit that has come forth from the heart of the Australian people. Tragedies like this keep small things like denied visas in perspective. Father God will bring great healing and hope to the hurting and His Rain of Salvation will bring forth new life from the ashes. Thank you for praying for His Rain to flood this dry and devastated land to heal, to comfort and restore. Thank you for praying for me too. As always I have many Mission mobilization projects on the go both in the USA and well as the Himalaya. I may be stopped for now from entering the States but the opportunities to challenge, mobilize and serve His vision never stop. Please continue to pray for the Green Card. Its time!" http://leoniekent.wordpress.com/2009/02/16/has-anyone-seen-my-green-card/

U.S. Consulate General in Hyderabad Begins Issuing Visas U.S. Consul General Cornelis M. Keur proclaimed the Consulate General in Hyderabad “open for consular services”. The Consular Section is now accepting visa interview appointments for those wishing to travel to the United States. Full consular services for American citizens are also available. According to published accounts, Hyderabad will begin conducting 100 visa interviews a day, a number which is likely to increase to 400 per day by Aprilend. The newly inaugurated office in Hyderabad will serve applicants from Andhra Pradesh. http://economictimes.indiatimes.com/News/News-ByIndustry/Services/US-Consulate-in-Hyderabad-set-to-issuevisas/articleshow/4224479.cms Interesting to note the utter excitement in which the Times of India reported the opening of the consular post in Hyderabad: "The American dream came a little closer to the residents of Andhra Pradesh with the US Consulate office in Hyderabad throwing open its visa services for those wishing to travel to the U.S." http://timesofindia.indiatimes.com/Cities/US-Consulate-opens-visaservices/articleshow/4226219.cms The new Visa Services page of the Consulate General in Hyderabad can be accessed here:

http://hyderabad.usconsulate.gov/visa_services.html U.S. Embassy in Kabul Begins Issuing Non-immigrant Visas U.S. Embassy Kabul has begun issuing non-immigrant visas for the first time in more than 30 years. U.S. Ambassador William Wood: "In opening up the windows of the American Consulate in Kabul for the first time in 30 years, we are expressing to the people of Afghanistan, in the most concrete way, our welcome. Please come. Please talk to us.” http://kabul.usembassy.gov/con_event_1702.html All Afghan non-immigrant visa applicants are required to complete forms DS156, DS-157 and form DS-158. All applicants must also complete a special Kabul supplemental visa form, which requests information on issues such as the following:

1. Employment history between 1995 and 2001. 2. Have you ever lived in Pakistan or Iran? 3. Have you ever been a member of the Taliban? This special form can be found here: http://kabul.usembassy.gov/media/kabulsupplementalnivform2.pdf The new Non-immigrant Visa Services page of Embassy Kabul can be accessed here:

http://kabul.usembassy.gov/non-immigrantvisas.html Visa Validity Periods Extended for Iraqis The maximum validity period for all categories of U.S. visas issued to Iraqi passport holders has been extended from 3 t0 12 months. According to Consul General Jeffrey Lodinsky, this move is "an excellent example of how the Iraqi and American people are benefitting directly from the new relationship being forged between our two countries." http://iraq.usembassy.gov/pr-031909.html The Reciprocity Table for Iraq has been amended to evidence this extension in visa validity periods, and can be accessed here: http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3586.html Former Secretary of State Powell and the Gettysburg Address Hear one of our nation's finest Secretaries of State passionately recite the Gettysburg Address, reiterating Lincoln's resolve “that government of the people, by the people, for the people, shall not perish from the earth.” Applause to the ACS Section of Embassy London for posting this audio file! http://www.usembassy.org.uk/americanservices/?p=484 Landmark Conference on Consular Processing The 2009 AILA Rome District Chapter Spring Conference will be a landmark event in the field of consular processing. Scheduled for April 22-24, 2009 in TelAviv, Israel, the Conference is being held with the active assistance and participation of the U.S. Embassy in Tel-Aviv, and the U.S. Consulate General in Jerusalem. The complete educational program, with registration details, can be found here: http://eventact.arnon-paz.co.il/demo/aila/ The conference is also on Facebook, here:

http://www.facebook.com/home.php#/pages/AILA-Rome-District-SpringConference-2009/52985339345?ref=ts Are You Smarter Than A Junior Consular Officer? 1. If you are a consular officer adjudicating visas requests primarily from Malagasy applicants, it's probable that you are in which country? 2. In the nonimmigrant visa context, what does "MRV" refer to? 3. Which visa category is generally used by the accompanying spouse and children of a Q-1 international cultural exchange visitor? (a) Q-1 (b) Q-2 (c) Q-3 (d) Q-4 (e) B-2 4. A consular officer may issue a B-2 visa to an eligible foreign-born child to facilitate that child's expeditious naturalization pursuant to INA 322. True or false: in order to qualify for the B-2 visa that will facilitate his or her becoming a US citizen, that child must not be an intending immigrant to the United States. 5. Which usually prevails in determining the validity period of a petition-based visa: the period of reciprocity shown in the reciprocity schedules, or the validity period of the approved petition? 6. A world-class soccer player changes his status from F-1 to O-1 within the US; are his spouse and children entitled to apply for O-3 visas, even though the soccer player himself was never issued an O-1 visa? 7. True or false: Time unlawfully in the United States while under the age of 18 does not count toward calculating the accrual of unlawful presence. 8. What is the period in which a foreign Au Pair may seek to enter the US for the purpose of residing with an American host family? (a) 6 months (b) 12 months (c) 18 months (d) 24 months (e) 36 months 9. In general, may an adopted child confer immigration benefits upon a natural parent if the adoption is still legally valid?

10. Just as President Obama would do nearly 150 years later, Abraham Lincoln appointed as Secretary State a Senator from New York who had recently lost to him in the race for the party presidential nomination. Who was Lincoln's Secretary of State? Top Ten Visa Wait Times at U.S. Consular Posts, March 2009** About a year ago, Mission Canada terminated the longstanding ability of applicants to have U.S. counsel with them at U.S. consular posts in Canada. Among the stated reasons for this change in policy: the need to maintain speedy application processing given space constraints and visa workload. Toronto was the only Canadian post to appear on the March 2008 Top Ten list, coming in at #10 with a reported wait time of 42 days. Three Canadian posts are on the March 2009 Top Ten list: Toronto is still at 42 days, tied for #7 with its sister post, Ottawa. Calgary is #8 on the list, with a reported wait time of 40 days. As worldwide wait times have decreased, wait times at Canadian posts have either remained constant or increased. Given all of the "win-win" benefits associated with attorney presence at certain types of visa interviews (see "Ten Years to 99 State 21138" in the February 2009 Consular Corner), isn’t it time to reconsider the mission-wide ban on attorney representation at the posts which comprise Mission Canada? #

Country

US Consular Post

Visa Wait Time

Cuba

784 days

Venezuela

US Interests Section Havana Caracas

3 4 5 6 7 (tie) 7 (tie) 8

Saudi Arabia Syria Bolivia Saudi Arabia Canada

Increase/decrease Last from February Month 2009 Top 10 Position -41 days 1 +17 days

Dhahran Damascus La Paz Riyadh Ottawa

217 days 85 days 70 days 58 days 48 days 42 days

-15 days +25 days +13 days -8 days 0 days

3 5 (tie) 5 (tie) 4 6 (tie)

Canada

Toronto

42 days

0 days

6 tie)

Canada

Calgary

40 days 0 days

London

38 days

+19 days

Barbados

Bridgetown

34 days

+5 days

New listing New listing

**Updated to March 3, 2009 and based on published Department of State data. The "visa wait time" is the estimated time in which individuals need to wait to obtain a nonimmigrant visa interview appointment at a given consular post. Top Wait Times by Region: The Americas (excluding Cuba) Middle East and North Africa Europe and Eurasia Africa Central and South Asia East Asia and Pacific

Venezuela/Caracas Saudi Arabia/Dhahran UK/London Nigeria/Abuja Mumbai – New Delhi Burma/Rangoon

(217 days) (85 days) (38 days) (27 days) (18 days) (16 days)

Answers to "Are You Smarter Than A Junior Consular Officer?" 1. Madagascar 2. Machine Readable Visa 3. (e) 4. True. 9 FAM 41.31 N14.6 5. The period of reciprocity 6. Yes 7. True 8. (b) 9. No 10. William H. Seward. As Secretary of State, Seward negotiated and signed the treaty with Russia for the cession of Alaska to the United States. Should we expect a similar peaceful territorial acquisition from Secretary Clinton? Quote of the Corner "U.S. Visa policies are like Microsoft Windows. After decades of usage and many repairs to its code/policies, they both still need more patching and

enhancements. Both of these institutions start off with a good idea and then discover that: we forgot a few critical things; malcontents are manipulating this and we need to put in stronger security and more controls; people are not using this the way we envisioned." Brian Sommer http://blogs.zdnet.com/sommer/?p=338 *Liam Schwartz is a principal in Liam Schwartz & Associates, a corporate immigration and consular law firm. He can be reached at: Liam@lsa-law.com All rights reserved to the author.