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Consular Corner: November 2008

by Liam Schwartz

Grabbing the Bull by the Horns

Form DS-156, the standard nonimmigrant visa application form, was at the center of scathing criticism levied by the United States Court of Appeals for the Seventh Circuit in April 2008. Calling the DS-156 "a form that only a consummate bureaucrat could earnestly defend," the Seventh Circuit condemned the use of bulletpoints containing multiple and compound questions relating to possible inadmissibility to the U.S. In the Court's opinion, the State Department's attempt to justify use of these questions was nothing less than "disingenuous."

According to the court:

"Although most of the bulletpoints incorporate multiple questions, and all of them include compound questions, the applicant must respond to each bulletpoint by checking a single box "yes" or "no." There is no means of giving independent answers to the varied questions within the same bulletpoints."

The court likened these questions (which appear at item 38 of Form DS-156) to the following:

"Is the United States Court of Appeals for the Seventh Circuit located in Chicago, Illinois? Is Chicago's N.F.L. team named the Packers? Both responses would be correct. And, depending on who is scoring the answers, both responses also would be incorrect."

In the case at hand, Christiana Atunnise, an "almost illiterate" applicant from Nigeria who speaks only limited English, had been found to have misrepresented a material fact by responding "no" to the second bulletpoint at item 38:

  • Have you ever been refused admission to the U.S., or been the subject of a deportation hearing or sought to obtain or assist others to obtain a visa, entry into the U.S., or any other U.S. immigration benefit by fraud or willful misrepresentation or other unlawful means? Have you attended a U.S. public elementary school on student (F) status or a public secondary school after November 30, 1996 without reimbursing the school?

In fact, the answer in Ms. Atunnise's case was "yes" to the first part, but "no" to the second part.

The Court continued:

"What the government did, and what it continues to do here, is declare that Atunnise lied simply because the "no" box she checked on her DS-156 is not the right answer to the question in the bulletpoint that the government conveniently supposes she was answering. But "no" is the correct answer to the other question in the same bulletpoint, and the government's unwillingness to confront that untidy detail is disingenuous."

To its very great credit, the State Department has grabbed the bull by the horns: the current draft of Form DS-160, which will eventually replace Form DS-156, has dropped the objectionable bulletpoints at Item 36 in favor of a series of single-sentence "yes" or "no" inquiries.

Examples include:

  • Are you or have you ever been a drug abuser or addict?
  • Are you a member or representative of a terrorist organization?
  • Have you ever sought to obtain or assist others to obtain a visa, entry into the United States, or any other United States immigration benefit by fraud or willful misrepresentation or other unlawful means?

Form DS-160 is currently being piloted at five U.S. consular posts. This leaves well over 200 consular posts at which applicants are still compelled to use the DS-156. Let's hope for world-wide rollout of the DS-160 as soon as possible, since following the Seventh Circuit's censure, continued use of Form DS-156 in its current version is untenable.

No Good Purpose

In light of the above, it is worth noting that the State Department has historically discouraged consular officers from using complex questions and statements at visa interviews. Accordingly to a version of the Department's Consular Anti-Fraud Handbook which was made public a number of years ago,

"Complex questions and statements are those that:

  • Are too complicated to be easily understood.
  • Cover more than one subject or topic.
  • Require more than one answer.
  • Require a complicate answer."

As an example, the Handbook cites the following:

"What did you do with the package and how much did you pay for the truck?' instead of asking two separate questions."

According to the Handbook:

"Complex questions and statements should be avoided. They serve no good purpose, tend to confuse the subject, and frequently lead to unintended false answers."

It is curious why the Department would oppose the use of complex questions at visa interviews, while endorsing their use in the primary visa application form. Whatever the context, confusion and unintended false answers are repugnant to an effective visa application process.

Unreasonable Client Expectations

As many of us in the immigration law community can attest, our clients sometimes have unreasonable expectations of the visa application process. Most commonly, clients will express the belief that the visa application process is a mere formality, involving a trip to "pick up their visas." But other errant expectations also exist, as exemplified by the following comments made in a letter to the editor of the Jamaica Observer (Kingston, Jamaica):

"I drive past the United States Embassy almost daily and note the shameful manner in which the embassy treats those applying for visas. The acts of humiliation that applicants are forced to endure, if they require a visa, certainly belittle us as a people."

Among the "acts of humiliation" cited by the writer were (1) inadequate parking available for visa applicants; and (2) no drop-off box for those simply wishing to renew a visa.

Consul-at-Arms, the foremost cyber observer of things consular, provides the following reality check in response to this letter:

(1) "Let me just note that it's very easy for someone to breezily suggest that the U.S. ought to provide parking for the tens of thousands of visa applicants that some embassies and consulates interview every year. State Dept. insiders will be aware how difficult it is to get even parking for embassy employees; real estate doesn't grow on trees, particularly in the high-rent areas in which our foreign missions are located: major cities abroad including national capitals."

(2) "There is no "simply" renewing a visa. A personal appearance for an interview is required in virtually every case, including mandatory collection of 10-fingerprint biometrics. That's not optional, no matter how convenient it would be. The days of "visa express" ended after 9/11."

What Americans Like

"Expert" advice can also give rise to unreasonable client expectations:

"The visa applicant needs to wear a formal dress at the time of interview with visa officer. As the visa officer is an American, the applicant should come for interview wearing a tie. This creates a positive impact in the mind of visa officer as the Americans always like formal dress up of an individual."

Let Us Always Be On Guard

From a U.S. Consular Officer in Chile:

"Distributed during training last year at the National Foreign Affairs Training Center, I never had the chance to read the 9/11 Commission Report and do it justice….The most chilling and disturbing part of the Commission's report is the supplemental book on the terrorists' travel patterns. As a consular officer in the Embassy, I particularly identified with my responsibility to keep those who want to do us harm out of our country.

I was appalled at the lack of congressional will and funding in the years preceding 9/11 to update our consular systems and pay for our Foreign Service workforce, and the lack of inter agency cooperation that would have helped us identify the terrorists in the first place. Lack of funding and the State Department's pre-911 policies essentially forced officers to do more work with fewer resources than ever before. The constant push by authorities to issue visas and reduce visa refusals led to cracks in the system that were exploited. The scary thing is that it could happen again.

As we expand America's virtual frontier past the physical borders, my colleagues and I are on the first-line defense to keep terrorists out of our country. After reading the 9/11 report, I have felt the burden to redouble my efforts to issue visas wisely to protect America and keep terrorists out. I am encouraged by the fact that just 3 days ago I came face to face with a known terrorist from a third country and using the mechanisms at my disposal, was able to deny him access to our country.

But what scared me was the fact that at first glance, his demeanor and application seemed perfectly benign. Let us always be on guard."


Back in 2003, the State Department faced significant shortfalls in the number and skills of Foreign Service Officers. Reporting on these shortfalls, the GAO called into question State's philosophy of hiring officers with a wide range of skills it believes are predictors of success - as opposed to hiring for specific skills, such as languages, which were badly needed.

If the Consular Officer who authored the above item ("Let Us Always Be On Guard") is any indication of the quality of people who have been hired, the only conclusion to be reached is that the Department's hiring philosophy has been more than vindicated.

Teasing the Siblings

Frank Baker, for nearly twenty years the principle State Department official responsible for controlling quota numbers, made the following comments in 1992 regarding family-based immigration. The comments, made when George H.W. Bush was President, hold true even now, as Barak Obama prepares to enter the Oval Office:

"The law gives unmarried sons and daughters 21 years of age and over, as defined, of citizens first preference of 23,000 slots a year. And married sons and daughters of citizens, third preference of 23,000 slots a year. This, to me, is somewhat of a farce. Because a son or daughter is just that. Whether they're married or not. And they should be given the same status, or the non-quota status which will not delay the inevitable.

In this particular time, both Republicans and Democrats alike, are stressing family ties, and family unity. What's wrong with an immigration law, stressing the same sentiments?

It would go along way to reunite families, and give some hope that these brothers and sisters can eventually reach their dream of immigrating to the good old USA, instead of vegetating on the waiting list for ten years or more. If we can't absorb them in our communities, then we shouldn't tease them with saying you can immigrate in another ten years."

My Mom was a Consular Officer

Yes, the people who interview our visa clients love their children too:

"When we lived overseas when I was growing up, my mom was a consular officer. Meaning she worked in the visa section of the embassy, reviewing and determining the applications of people who wanted to come to the United States to work or live or whatever. I'd go visit her at her office after school sometimes, and on my way through the security checkpoint into the embassy I'd pass huge long lines of people whose biggest dream was to come to America. And it made me feel proud and blessed to have been born a citizen of this wonderful country that so many people around the world wanted to be a part of."

From the Consulates
Hyderabad, India:

"The consulate of the United States of America (USA) was formally opened here Friday and it will start issuing visas from December this year.

US Ambassador to India David C. Mulford raised the American flag over the new office of the US Consulate-General at Paigha Palace, a heritage building, in Begumpet, to formally inaugurate the facility. Consul General Cornelis M. Keur said the consulate general would start functioning in December this year and would initially handle 100 visa applications a day. The consulate will handle 300 applications from next year.

"The consulate will start the operations with 12 US consul officials and 35 local staff members,' Keur said. Next year, the number of Americans will go up to 21 and the locals to 65."

Ciudad Juarez, Mexico:

"U.S. State Department officials unveiled a massive new consulate in Ciudad Juarez, a violent Mexican border town that is the world's busiest for immigrant visas. Consulate official Laura Dogu said the building has doubled capacity with more than 100 service windows and has made security improvements. The Juarez consulate is the world's busiest, handling the most immigrant visas of any such facility. It is the only site in Mexico to apply for a U.S. immigrant visa. The new gray building is several miles from the existing consulate, which sits in a busy part of central Ciudad Juarez. It is well away from crowded neighborhoods plagued by violence amid a bloody power struggle between drug cartels."

Hong Kong

Beginning November 24, 2008, the U.S. Consulate General in Hong Kong will use the new DS-160 application form. Only petition-based applicants (H, L, O, P, and Q visas) must use the new DS-160 application form; all other applicants may continue to use the DS-156 application form.

Are You Smarter Than A Junior Consular Officer?

1) Which U.S. Consul to England was the author of such works as The Scarlet Letter and The House of the Seven Gables?

2) Who was President at the time of enactment of the Immigration and Nationality Act?

3) Approximately 25% of all Americans arrested overseas are arrested in which consular district?

(a) Beijing, China
(b) Istanbul Turkey
(c) London, UK
(d) Paris, France
(e) Tijuana, Mexico

4) Which of the following types of nonimmigrant visas may be applied for at the U.S. Embassy in Baghdad?

(a) Diplomatic and Government Officials
(b) U.S. Government-funded exchange visitors
(c) Students
(d) All of the above
(e) None of the above

5) True or false: under a deal worked out between the governments of the United States and Mexico, non-Mexican nationals ("third country nationals") in the United States, who wish to apply for U.S. visas in Mexico, are exempt from Mexican visa requirements.

6). Who is the only Secretary of State to have worked his/her way up through the ranks of the Foreign Service?

7) What is the name of the separate report within the Consolidated Consular Database (CCD), set up by the Department of State to provide consular posts with official, inter-agency, notification of H, L, O, P, and Q classification petition approvals?

8) All communication from USCIS to overseas IV processing posts is transmitted through which arm of the Department of State?

9) Which Federal statute bars the giving of benefits available to derivative family members under the INA, to a same-sex spouse legally married in Connecticut or other appropriate jurisdiction?

10) Which U.S. President was shot by a person upset because he had been denied the position as U.S. Consul in Paris?

Consul and Counsel: A Roundtable Discussion

Please join us on December 4, 2008 for a special roundtable discussion between Visa Consuls who are trained attorneys; and Visa Attorneys who were previously Visa Consuls. Panelists include Melissa Bishop (Deputy Visa Chief, Kingston); Matthew Cottrell (Chief of the Visa Unit, Vancouver); Steve Pattison (London, UK); and Rick Sindelar (Houston, Texas). More information on this discussion can be found here:

Top Ten Visa Wait Times at U.S. Consular Posts, November 2008

The big individual story is the one month drop in wait times in Port au Prince, from 70 days to only 30. Parenthetically, last November Port Au Prince posted wait times of 200 days. World-wide, the dramatic reduction in visa wait times continues, with most of the Top Ten entries coming in at 40-something.

# Country US Consular Post Visa Wait Time Increase/Decrease from October 2008 Last Month Top 10 Position
1 Cuba US Interests Section Havana 825 days 0 days 1
2 Venezuela Caracas 200 days 0 days 2
3 Brazil Sao Paulo 60 days + 4 days 4
4 (tie) Dominican Republic Santo Domingo 43 days 0 days 7
4 (tie) Canada Vancouver 43 days + 5 days 10
5 (tie) Canada Ottawa 42 days 0 days 8 (tie)
5 (tie) Canada Toronto 42 days 0 days 8 (tie)
6 Kenya Nairobi 41 days New listing New listing
7 (tie) Columbia Bogota 40 days 5
7 (tie) Canada Calgary 40 days 0 days 9 (tie)
7 (tie) Jamaica Kingston 40 days 0 days 9 (tie)
8 Denmark Copenhagen 38 days New listing New listing
9 Brazil Rio de Janeiro 36 days - 8 days 6 (tie)
10 (tie) Nigeria Abuja 35 days New listing New listing
10 (tie) UAE Dubai 35 days New listing New listing

**Updated to November 3, 2008 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) Venezuela/Caracas (200 days)
Africa Kenya/Nairobi (41 days)
Europe and Eurasia Denmark/Copenhagen (38 days)
Middle East and North Africa UAE/Dubai (35 days)
East Asia and Pacific China/Beijing (28 days)
Central and South Asia Mumbai and New Delhi (14 days)

Answers to "Are You Smarter Than A Junior Consular Officer?"

1) Nathaniel Hawthorne
2) Harry Truman; his veto of the bill was overridden by Congress.
3) e
4) d
5) Totally false.
6) Lawrence Eagleburger
7) Petition Information Management Service ("PIMS")
8) The National Visa Center
9) The Defense of Marriage Act (Public Law 104-199), which provides that the word 'marriage' means only a legal union between one man and one woman as husband and wife.
10) President Garfield (shot by Charles Guiteau on July 2, 1881).

Quote of the Corner

"These are difficult and different times, and certain conveniences must be foregone."

From remarks published in 2003 by the Department of State in defense of the decision to limit the privilege of automatic revalidation of visas.

All rights reserved to the author.

About The Author

Liam Schwartz is a principal in Liam Schwartz & Associates, a corporate relocation law firm. He can be reached at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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