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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Consular Corner: June 2009

by Liam Schwartz

My Favorite Visa Refusal

From The Consuls' Files, one of the newest, and potentially best-ever, consular FSO blogs:

"My personal favorite visa refusal of my entire career so far.

A young man from a South Asian suburb had been refused visas at least six times before. This was in the days that the OF-156 was a small little form on which we wrote interview notes by hand, then filed alphabetically. So by the time this fellow tried his luck with the new consular officer, he had a fat pack of failed applications, each with a different profession, different reason to travel, different everything.

I reviewed the prior applications, interviewed him, then started on my refusal patter: 'I'm very sorry, but you don't qualify for a ...'

At that point he interrupted and cried, incensed, 'But madam! This time I'm telling the truth!'" http://theconsulsfiles.blogspot.com/2009/05/true-story.html

Name that Abbreviation

You've finally achieved a life-long dream and been appointed Foreign Service Officer, and for your first assignment you find yourself charged with adjudicating visa applications. The Visa Section Chief places you in front of a secure computer terminal and instructs you to run a clearance check. You search for your handy dictionary of CLASS abbreviations, but must have left it at home… quick - name seven of the following 10 abbreviations:

  1. FR
  2. PIMS
  3. CCD
  4. CLASS
  5. CST
  6. INK
  7. US-VISIT
  8. IAFIS
  9. NR
  10. SAO

(Answers provided, two items below)

A Sloppy Visa Applicant is a Truthful Visa Applicant

From a New York Times article on forensic scientists who have begun testing techniques they hope will give officers, interrogators and others a kind of honesty screen, an improved method of sorting doctored stories from truthful ones.

"The new work focuses on what people say, not how they act. It has already changed police work in other countries, and some new techniques are making their way into interrogations in the United States.

In part, the work grows out of a frustration with other methods. Liars do not avert their eyes in an interview on average any more than people telling the truth do, researchers report; they do not fidget, sweat or slump in a chair any more often. They may produce distinct, fleeting changes in expression, experts say, but it is not clear yet how useful it is to analyze those.

Nor have technological advances proved very helpful. No brain-imaging machine can reliably distinguish a doctored story from the truthful one, for instance; ditto for polygraphs, which track changes in physiology as an indirect measure of lying.

One broad, straightforward principle has changed police work in Britain: seek information, not a confession. In the mid-1980s, following cases of false confessions, British courts prohibited officers from using some aggressive techniques, like lying about evidence to provoke suspects, and required that interrogations be taped. Officers now work to gather as much evidence as possible before interviewing a suspect, and they make no real distinction between this so-called investigative interview and an interrogation, said Ray Bull, a professor of forensic psychology at the University of Leicester.

These interviews sound much more like a chat in a bar, said Dr. Bull, who, with colleagues like Aldert Vrij at the University of Portsmouth, has pioneered much of the research in this area. 'It's a lot like the old "Columbo" show, you know, where he pretends to be an idiot but he's gathered a lot of evidence.

Still, forensic researchers have not abandoned the search for verbal clues in interrogations. In analyses of what people say when they are lying and when they are telling the truth, they have found tantalizing differences.

Kevin Colwell, a psychologist at Southern Connecticut State University, has advised police departments, Pentagon officials and child protection workers, who need to check the veracity of conflicting accounts from parents and children. He says that people concocting a story prepare a script that is tight and lacking in detail.

'It's like when your mom busted you as a kid, and you made really obvious mistakes,' Dr. Colwell said. 'Well, now you're working to avoid those.'

By contrast, people telling the truth have no script, and tend to recall more extraneous details and may even make mistakes. They are sloppier." http://www.nytimes.com/2009/05/12/science/12lying.html?_r=1&scp=5&sq=lying&st=cse

Parenthetically, the forensic scientists may have taken a cue from poet and essayist Suzanne Britt Jordan:

"Sloppy people, you see, are not really sloppy. Their sloppiness is merely the unfortunate consequence of their extreme moral rectitude. Sloppy people carry in their mind's eye a heavenly vision, a precise plan, that is so stupendous, so perfect, it can't be achieved in this world or the next….Neat people are bums and clods at heart."
http://www.officeinstructor.com/EssayWriting/EssayPDFs/Neat%20vs%20Sloppy.pdf

Conclusion: the trick to conducting an effective visa interview may be to listen carefully to the content of the applicant's questions … and check to see if his shirt is tucked in.

Answers to "Name that Abbreviation"

  1. Facial Recognition
  2. Petition Information Management Service
  3. Consular Consolidated Database
  4. Consular Lookout and Support System
  5. Consular Shared Tables
  6. Independent Namecheck
  7. U.S. Visitor and Immigrant Status Indicator Technology
  8. Integrated Automated Fingerprint Identification System
  9. No Record
  10. Security Advisory Opinion

Immigration Benefits Based on Racial Purity

A recent modification to 9 FAM 41.1 included a restatement of the classes of aliens exempt from the passport and visa requirements that generally apply in connection with the admission of foreign nationals to the U.S.

Among those who are exempt from passport and visa requirements are American Indians born in Canada. Under the exemption, American Indians born in Canada are entitled to enter the United States for the purpose of employment, study, retirement, investing, and even immigration, without regard to passport or visa requirements. According to the website of the U.S. Embassy in Ottawa, this exemption arises from the Jay Treaty, which was signed in 1794 and provided for the free movement of American Indians across the international boundary. The United States has codified this obligation in the provisions of Section 289 of the Immigration and Nationality Act (INA).
http://www.consular.canada.usembassy.gov/first_nations_canada.asp

Per 9 FAM 41.1 this exemption is limited to: "An American Indian born in Canada, having at least 50 per centum of blood of the American Indian race, entering from contiguous territory by land or sea."
http://www.state.gov/documents/organization/87156.pdf

Federal courts have stressed that the nature of this per centum blood test is racial, not political. See, for example, United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 660 (W.D. N.Y. 1947).

There is something profoundly disturbing with this eligibility standard.

While American Indians born in Canada are no doubt worthy of the exemption, it is distressing that in this day and age, eligibility is based upon proof of the one's proximity to racial purity (in this case, pure-blooded American Indians).

Recall that at the time this test of racial purity was developed by the Jay Treaty, members of certain races were legally held in slavery in our country. Recall, too that a per centum blood test was the cornerstone of the immigration and citizenship benefits conceived by the Nazi Party in the Nuremberg Laws.
http://en.wikipedia.org/wiki/Nuremberg_Laws

While the intentions for providing this exemption may have been good, standards which rest primarily upon proximity to racial purity are inherently evil and have no place in modern day American law. I have to believe that Canada will be willing to work with us so that the criteria for the free movement of American Indians are brought in line with contemporary social norms.

Signposts from Mumbai

From a Consular Officer closing out his first year at the U.S. Consulate General in Mumbai, India:

"It has come to my attention that recently I have managed to pass a few statistically noteworthy points in a number of different ongoing endeavors. Here's a self-generated list of the ones that immediately come to mind, in order of how important I think they are.

  • One year of actually living with my wife
  • 20,000+ visas adjudicated
  • One year down in Mumbai
  • 50 revocation memos
  • 30 years of being alive"

http://diplodocus.wordpress.com/

TAL and Tons of Tears

Much has been made of late of the Department's efforts to address the backlog in the processing of special security clearances for visa applicants who engage in certain fields of science and technology. These efforts come in response to an issue which has been summarized by the New York Times as follows:

"Since last year, science and engineering researchers from abroad seeking to obtain or renew visas have routinely encountered delays of months. The problem became so acute that researchers who left the country often found themselves stranded abroad, not knowing when their visas might be approved."
http://www.nytimes.com/2009/06/03/us/03visas.html?_r=3

Many of these security clearances arise from the Technology Alert List ("TAL"), which was created to help prevent the admission of aliens who may seek to violate U.S. laws prohibiting the export of goods, technology or sensitive information from the U.S.

The following is a peek at an online discussion between foreign researchers who are experiencing the acute visa delays first-hand:

Visa Applicant 1: "There is only one word for this slow process: Accountability. In every walk of life, everyone is accountable for his/her actions. You are accountable at work, to follow the rules. When you order something and if you notice that the item you ordered has not been delivered on time, the website, person or vendor is accountable for getting it delivered. You have a tracking no., a phone no. or a person to tell your concerns to… however the DOS is not accountable for their slow processing times. Just to get the most basic information, we have to get hold of senators or lawyers. Their involvement does not help matters most of the time either.

I have absolutely no problems in having a security check. When a nation goes through such a tragic event, it is but natural for them to be skeptical. BUT how you justify making a person wait 4-6 odd months (sometimes longer) to return to their work/research? It does not take Einstein to figure out that you cannot have vacation days for more than a month or two. How do the people doing our clearances think we are going to hold on to our jobs for so long? How much time does it take the most powerful nation in the world to do a background check on one candidate? I understand that the volume of cases is enormous but isn't 60 days enough for the most advanced country in the world??"

Visa Applicant 2: "Actually I think the point about the lack of accountability for slow processing times is well made. Accountability is the only cure for this mess, and as long as the DoS sits behind the promise of consular non reviewability - there is no hope for this ever improving.

I think the check is simply too expensive in terms of the amount of intellectual property it routinely destroys i.e. the loss in IP due to the unavoidable delays it causes."

Visa Applicant 3: "I too wish they were more accountable to the visa delays…I feel bad for doing science, I wish I were doing some other innocuous work and earning tons like so many other guys, who don't have to deal with this BS. I admit that I still envy those folks. Science = long hours+low pay+uncertain career+TAL+ tons of tears. Some US guy said that you (us) don't have to be sympathetic to US on losing it's brain power as it knows what to do. I couldn't respond to him."

BTW, the last version of the Technology Alert List made available to the public can be found here:
http://www.bu.edu/isso/forms/tal.pdf

While You Were on the Visa Line

This column periodically features updates from the world of U.S. immigration law which attorneys receive elsewhere, but which may have been missed by consular officers toiling on the visa line. In this edition, we offer an update regarding comprehensive guidance issued by USCIS headquarters for determining when an alien accrues unlawful presence, for purposes of inadmissibility under sections 212(a)(9)(B) and (C) of the Immigration and Nationality Act. According to USCIS, this new guidance is meant to consolidate and update the determination of what constitutes "unlawful presence," a concept which the agency indicates has been "the subject of various interpretations over the last ten years." In so doing, USCIS rescinded almost all previously existing policy memoranda on the subject of unlawful presence.

The new USCIS guidance, inter alia, describes the distinction between "unlawful status" and "unlawful presence"; provides general considerations for counting unlawful presence times which trigger the 3-year, 10-year, or permanent bars; and clarifies the forms of relief from inadmissibility for those subject to the bars. The guidance post-dates the most recent revisions to 9 FAM 40.92 and so really should be consulted in conjunction with any reading of the FAM provisions.

Of particular interest in the consular context is the guidance provided regarding nonimmigrants who depart the United States during the pendency of a request for extension or change of status. The provisions relating to this issue are reproduced below:

"Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status (COS) Who Depart the United States During the Pendency.

Departure from the United States while a request for EOS or COS is pending, does not subject an alien to the 3-year, 10-year , or permanent bar, if he or she departs after the expiration of Form I-94, Arrival/Departure Record unless the application was frivolous, untimely, or the individual worked without authorization.

Evidentiary Considerations: If the applicant subsequently applies for a nonimmigrant visa abroad, the individual has to establish to the satisfaction of the consular officer that the application was timely filed and not frivolous. The requirement that the application was timely filed may be established through the submission of evidence of the date the previously authorized stay expired, together with a copy of a dated filing receipt, a cancelled check payable to USCIS for the EOS or COS application, or other credible evidence of a timely filing.

Determination by a Consular Officer that the Application was Non-Frivolous: To be considered non-frivolous, the application must have had an arguable basis in law and fact, and must not have been filed for an improper purpose (such as to prolong one's stay to pursue activities inconsistent with one's status). In determining whether an EOS or COS was non-frivolous, DOS has instructed consular posts that it is not necessary to make a determination that USCIS would have untimely ruled in favor of the alien. See 9 Foreign Affairs Manual (FAM) 40.92 Notes, Note 5c."

The USCIS guidance can be accessed here:
http://www.uscis.gov/files/nativedocuments/revision_redesign_AFM.PDF

Changes to 9 FAM - Monthly Report

Published changes to Volume 9 (Visas) of the FAM over the past month include the following:

Poverty Income Guidelines 2009

The Poverty Income Guidelines for 2009 have just been added to the FAM:
http://www.state.gov/documents/organization/86991.pdf

The Poverty Income Guidelines are used, inter alia, in conjunction with the Affidavit of Support (Form I-864) in immigrant visa cases. See, for example, 9 FAM 40.41 PN2.4, which provides in part:

"Either the petitioning sponsor, substitute sponsor, or a joint sponsor must show the ability to maintain his or her annual household income at 125% of the governing Federal Poverty Guideline threshold."

As per the new Poverty Income Guidelines, the current minimum poverty threshold for a family of four in the 48 contiguous states and Washington, DC is $22,050. This threshold constitutes an increase of $850 from 2008.

Immigrant Visa: Basic Document Requirements

Restatement of the basic document requirements under INA 222(b) for an applicant applying for an immigrant visa:

"INA 222(b) requires that an applicant applying for an immigrant visa (IV) submit the following documentation, if available:

  1. A valid unexpired passport or other suitable travel document (see 9 FAM 42.2);
  2. A copy of the police certificate for the country of nationality and country of the alien's residence at the time of visa application in which the applicant has resided for six months or more;
  3. A copy of police certificates for any other country in which the applicant has resided for one year or more;
  4. Certified copies of prison records, if applicable;
  5. Certified copies of military records; if applicable;
  6. A certified copy of the birth record;
  7. Other documents establishing relationship to spouse or children, if applicable; and
  8. Records or documents pertinent to the applicant's identity or visa classification with respect to visa eligibility."

http://www.state.gov/documents/organization/87888.pdf

Immigrant Visa: Importance of High Quality Photograph

According to this FAM update:

"One of the most common problems the Department of Homeland Security (DHS) encounters with IV packets is a poor quality photograph. The IV photograph is a crucial item-ultimately it will become the image on the bearer's "green card." Posts should ensure that photographs are in accordance with these instructions, as well as the instructions on photographs found in 9 FAM Appendix L."
http://www.state.gov/documents/organization/87888.pdf

Ironically, 9 FAM Appendix L is listed by the Department as "unavailable." http://www.state.gov/m/a/dir/regs/fam/c22770.htm

Are You Smarter Than A Junior Consular Officer?

1) Name the only country listed by the Department as maintaining an adjusted visa refusal rate of 0.0%

2) True or false: although H-1B aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA, spouses and children applying for H-4 visas are still required to demonstrate that they have a residence abroad to which they intend to return.

3) The Poverty Income Guidelines utilized in the immigrant visa process are published annually by:

a) The Department of Health and Human Services
b) The Department of State
c) The Social Security Administration

4) True or false: a separate Machine Readable Visa (MRV) must be issued to each qualified applicant, even when multiple applicants (such as newborns) are included in the same passport.

5) Name three countries listed as "Communist and Communist Controlled Countries" in connection with visa clearances.

6) True of false: a person born in the United States to a foreign diplomatic officer accredited to the United States, does not acquire U.S. citizenship at birth.

7) If an employee of the foreign service looks excitedly into your eyes and whispers "I'm a WAE", what would he be indicating?

a) He's just completed the introductory training class for incoming foreign service officers.
b) He's just been recommended for tenure
c) He's on a short-term assignment as a foreign service retiree.

8) How far in advance of the approved employment period may consular posts issue an H-1B visa?

9) What is the grace period during which H-1B nonimmigrants may remain in the United States following the end of the validity period of the underlying petition?

10) Who was the first female Secretary of State?

Top Ten Visa Wait Times at U.S. Consular Posts, June 2009**

Belmopan, the smallest capital city in the world, makes it into the Top Ten list for the first time. Wait times in Baku shoot up from one day to 45. Riyadh wait times increase dramatically, placing the post just behind Dhahran on the Top Ten list; as a result, we may soon see wait times at both Saudi visa processing posts exceed 100 days.

BTW: Hyderabad, India, and Podgorica, Montenegro, have been added to the list of consular posts for which wait time information is available on the Department's website.
http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php

# Country US Consular Post Visa Wait Time Increase/Decrease from May 2009 Last Month Top 10 Position
1 Cuba US Interests Section Havana 776 days - 6 days 1
2 Venezuela Caracas 216 days - 6 days 2
3 Saudi Arabia Dhahran 111 days +1 days 3
4 Saudi Arabia Riyadh 99 days + 46 days 5
5 Bolivia La Paz 72 + 12 days 4
6 Nigeria Abuja 60 days + 18 days 6 (tie)
7 Ghana Accra 56 days + 42 days New listing
8 Azerbaijan Baku 45 days + 44 days New listing
9 (tie) UK London 42 days + 4 days 9
9 (tie) Canada Ottawa 42 days 0 days 6 (tie)
10 (tie) Belize Belmopan 40 days +22 days New listing
10 (tie) Canada Calgary 40 days 0 days 7

Updated to June 2, 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) Venezuela/Caracas (216 days)
Middle East and North Africa Saudi Arabia/Dhahran (111 days)
Africa Nigeria/Abuja (60 days)
Europe and Eurasia Azerbaijan/Baku (45 days)
East Asia and Pacific China/Shanghai (21 days)
Central and South Asia India/Mumbai (15 days)

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

1) Liechtenstein
http://www.travel.state.gov/pdf/FY08.pdf

2) False. 9 FAM 41.53 N17.1

3) a.

4) True. 9 FAM 41.113 PN1.1

5) China (People's Republic of); Cuba; Laos; North Korea; Vietnam

6) True. INA Sec. 101.3

7) c.

8) 90 days. 9 FAM 41.53 N8.3

9) 10 days. 9 FAM 41.53 N10.

10) Madeleine Albright

Quote of the Corner

"If given the chance, probably all of Africa's population would escape the continent because of the drudgery of a life that the vast majority of them are subjected in its many nations. If you have ever been to a visa interview at a western embassy, you would not fail to notice the mixed emotions that accompany the granting or denial of visa requests. Those who are granted the visa are so elated that it is like they have received a free pass to heaven, while on the other hand the people who are refused are as dejected as if they have been dealt a terrible life ending body blow."
http://worldhaveyoursay.wordpress.com/2009/04/08/of-course-africans-would-like-to-leave-africa/

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: Liam@lsa-law.com.


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


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