Consular Corner: July 2009
Visa Interview Pet Peeves
About to send a client to a visa interview? Be sure to advise him or her of the following list of things which should NOT be done at the interview window (list courtesy of the Foreign Service Officer/Consular Maven at Calling a Spade a Spade):
"Visa interviewing is generally a lot of fun, when your section is properly staffed and workload is manageable. You chat with interesting people from all walks of life and occasionally make some good contacts and even friends with individuals you may never have met otherwise.
You also interview people who just drive you up a wall for one reason or another. Sometimes it's a result of a particular behavior. Sometimes it's a characteristic. Sometimes it's just the audacity. In no particular order, here are my top visa applicant pet peeves:
1. Women who believe that dressing like a whore betters their chances of obtaining a visa from me, because, you know, I'm just that shallow. This faux pas is usually accompanied by body language designed to, shall we say, maximize exposure. These aren't rank-ordered, but this might be the one that irritates me the most.
2. Applicants who haven't showered in days, whose musky stench lingers at my window for a half-hour after the applicant has gone. Sailors and some categories of clergy are by far the most serious offenders. I can't believe other applicants are all that happy to be sitting in a waiting room with these people, either.
3. Applicants who steadfastly deny wrongdoing, even when shown incontrovertible evidence.
"You've never been in U.S.?"
I'm just left speechless.
4. Applicants refused tourist visas who then proceed to trash-talk America to prove that they'd never want to live there in a million years. "Why would I want to live there? Your shallow, materialistic, godless culture. Ugh."
So why visit, chucklehead? I hear Saudi Arabia's very nice this time of the year.
5. Applicants who fake medical infirmities to play on my sympathy. Medical cases are actually not that difficult to adjudicate, since you're supposed to put aside the medical issue and first judge whether the applicant overcomes 214(b). Of course, we're human, and if you're an empathetic chap like myself, it's sometimes hard separate the two. But when I refuse a "deaf" applicant and then see him walk away conversing without difficulty with other applicants, it's a great reminder of why it's so important to adjudicate these cases properly.....
6. Applicants who begin the interview themselves. That's right. They come right up to the window and start rambling. Sometimes when we're not busy, for my own amusement, I'll just let them keep right on going out of morbid curiosity to see how long it will run. After awhile, I start to wonder whether I'll actually need to ask any questions.
7. Applicants who share too much personal information. You're divorced. Okay. That's really all I need to know. I don't need to know that impotence was the reason, or he slept with your sister, or she hid from you a second job as a streetwalker. The legal term for that information is, I believe, "immaterial."
8. Applicants who insist on talking to "the Consul." Especially irritating when you are the Consul. Someone once asked to speak to my father. Sure, I look young, but come on. I once responded to an irate applicant's request to speak to "the Consul" thusly: "I'm all the Consul you're going to get." I don't think that's from any list of cleared talking points from Consular Affairs.
9. Applicants who turn on the waterworks on cue. They're waiting for that key question as the trigger, then they go from zero to sixty in no time flat. Some don't even wait for the interview to begin before shedding the crocodile tears."
The Arlington Rap
Located in Arlington, VA, the Foreign Service Institute ("FSI") is where new Foreign Service Officers are trained for their initial assignments as the consular officers who will interview our immigrant and nonimmigrant visa clients. What are the atmospherics in which new recruits are molded into American diplomats? The answer lies in this musical tour of "the town that never fizzles":
Honey We Ain't Stupid
Cassandra at The Consuls' Files provides some frank observations about immigration attorneys (reprinted here with the permission of the author). Warning: parental discretion advised.
"With apologies to the half-dozen highly competent immigration attorneys that Madam knows -- what the heck is with the rest of them? Is there no test of competency or even basic knowledge before an 'immigration attorney' can hang a shingle?
At AILA conventions one can only be stunned by the incredibly clueless questions some attorneys ask, and the information they try to offer. In panel presentations, it is not uncommon that audience members are so ignorant of the law and so instantly hostile toward US consular representatives that their fellow attorneys have to shush them and drag them back into their seats.
A hint: if you have to use six different fonts in a letter expressing your indignation about a case that hasn't been going your way; if you can't find relevant legal decisions and so quote - at length - decisions that actually have no bearing on your case; if you find yourself insulting, name-calling, and quoting at length from an interview that you did not attend; maybe you need to consider one of two things:
one, maybe your applicant is not going to get a visa for some very good reasons.
two, maybe you need to go back to the books and learn what you're trying to practice.
Perhaps you do not understand that the letter was not written for you, but for the client who demanded a fire and brimstone approach from his or her attorney, because in his or her culture, that is the correct form of address.
Alternatively, as a wise attorney once told me, if you have the facts, argue the facts; if you don't have the facts, argue the law; if you don't have the facts or the law, argue equity; if you don't have the facts, the law, or clean hands (for purposes of equity); then try to get your opponent to do something outrageous so you can claim "foul." When I have seen those types of letters where there appears to be only an attempt to get a consul to throw a verbal punch back at the author, I consider it prima facie evidence that the lawyer has nothing else to offer.
I actually do understand that the client might have expected a 'fire and brimstone' letter. I would argue, however, that it's the attorney's responsibility to explain to the client that such a letter will only harm his cause.
Sorry, Mr. Attorney, but you also need to perform with the rest of your audience in mind, because such a letter will also harm YOUR cause. How much credence do you suppose that officer will give to any future missives from you, anywhere in the world at any time, about any client, long after this particular client is forgotten (by you)? Honey, we ain't stupid, and we will remember your name and the credibility you exhibited."
Note from Liam: Ouch. This posting stings - as the truth sometimes does.
I think it fair to say that consular officers, who ARE required to undertake a test of competency and basic knowledge, can seem as "clueless" and "hostile" as the immigration attorneys described in this posting. But, until we are given the keys to FSI, we should really focus on the things we can control as private practitioners.
In my mind, this focus should be on increasing the availability of educational programs relating to the visa application process (AILA's Rome District Chapter is making huge strides in this direction). These educational efforts should concentrate on a number of basic points:
If consular officers and immigration attorneys are ever going to work together to advance the visa application process, then Cassandra's posting is really the start of a much needed dialogue.
The Visa Application Process on YouTube
Embassy London has posted an informative video on nonimmigrant visa application procedures in London on YouTube. While the video itself - like a good English G&T - is somewhat dry, it's nice to see a couple of familiar faces (such as the guy who sells cokes:)
OIG on Nonimmigrant Visa Adjudication
Over four years after its initial publication, a report by the State Department's Office of the Inspector General ("OIG") entitled "Nonimmigrant Visa Adjudication: Standards for Refusing Applicants" has been publicly released. In this report, the OIG reviews the nonimmigrant visa adjudication process to assess how INA 214(b) is used to determine issuance or refusal.
Among the report's highlights:
All in all, the principal conclusions of the OIG report are as follows:
The consular officer's independent judgment remains the key element in the adjudication process. Any attempt to legislatively dictate the factors that consular officers should use in their assessment of an applicant's entitlement to a given visa category will lead to increased second-guessing on decisions and make consular officers less willing to trust their own judgment.
The OIG report can be accessed at the following link:
The State 274068 All Stars
Perhaps the most important contribution of this somewhat tame OIG report is the recommendation that 04 State 274068 be made a key part of FSI's consular training program. This December 2004 cable transmitting 214(b) guidance to the field was developed and approved by what might be the greatest consular team to ever be assembled at the Consular Affairs Bureau. Members included: (1) Steve Fischel (of blessed memory); (2) Maura Harty; (3) Janice Jacobs; and (4) Tony Edson. "Rookies" such as Andrew Simkin were also involved with this guidance. If ever there was a team you'd want assembled to meet the challenges of the aftermath of 9/11 on the visa adjudication process, this is certainly it.
On a substantive basis, 04 State 274068 reviews proper interpretation of INA section 214(b). The cable discusses the meaning of consular discretion, and emphasizes that section 214(b) cannot be simplified to mean only that an applicant must intend to return home. It also clarifies the difference between a finding of inadmissibility under INA 212(a) and a finding of an applicant's failure to establish his/her qualification for a visa under INA 214(b).
04 State 274068 can be accessed here:
Changes to 9 FAM - Monthly Report
Published changes to Volume 9 (Visas) of the FAM over the past month include the following:
Updated guidance on the formulation of names for entry into consular automated systems, including the following interesting discussion of Korean names:
Note from Liam: This practice is hardly limited to Korean society: is there any Soccer Mom or Dad in America who isn't referred to as BECKYSMOM or JESSIESDAD?
Personal/Domestic employees and the WWTVPRA
Guidance to consular officers with regard to adjudicating nonimmigrant visa applications by proposed personal or domestic employees (B-1, A-3, G-5 and NATO-7 visa categories, for example) in light of the requirements of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (WWTVPRA).
Consular officers are reminded of their duty to ensure that an alien applying for a nonimmigrant visa as a personal or domestic servant who is accompanying or following to join an employer, is made aware of his or her legal rights under Federal immigration, labor, and employment laws. This includes information on the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States.
The text of the WWTVPRA can be found here:
Derivatives of T Visa Holders
Information provided on unusual derivative visa status available to the family members of T visa aliens (victims of a severe form of trafficking in persons). According to this FAM update, nonimmigrant derivative status is available not only to the husbands, wives and children of T visa holders - but in certain circumstances to their parents and siblings as well. http://www.state.gov/documents/organization/87404.pdf
2009 EXCHANGE VISITOR SKILLS LIST INDEX
Updated J-1 skills list published. http://www.state.gov/documents/organization/125425.pdf
Are You Smarter Than A Junior Consular Officer?
1) What do the letters "EAC" signify in the file number of a USCIS petition?
2) The Basic Consular Course offered by the Foreign Service Institute is more commonly known as:
(a) A-100 Class
3) In the consular context, what does the term "visa shopper" normally describe?
4) What does a response of "212E" indicate about a visa applicant to a consular officer who has run a namecheck in the Consular Lookout and Support System ("CLASS")?
(a) The applicant has previously overstayed an authorized period of stay in the United States.
5) True or false: If the spouse of an E-2 applicant is a national of a country which does not have an E-2 treaty with the United States, he or she may not be accorded derivative E status.
6) A request to enter, correct, or delete a lookout in CLASS is known as:
7) In general, a foreign journalist from a Visa Waiver country who seeks to cover a scientific meeting in the U.S. should do the following:
(a) Apply for a B-1/B-2 visa.
8) Foreign (non-NATO) military personnel coming to the US for training on a U.S. military installation should seek a visa:
(a) As business visitors.
9) A consular officer posted to "CDJ" most likely conducts visa interviews in which language?
10) Who is the American artist best known for his painting of the Stars and Stripes (Flag), a large poster of which hangs in the Visa Section of the U.S. Embassy in London?
Top Ten Visa Wait Times at U.S. Consular Posts, July 2009
The good news: no Canadian post is listed in the Top Ten Wait Times table for the first time in many months. The bad news: Wait times at the four primary Canadian posts have not actually decreased; wait times at other posts have simply surged. The most prominent examples: Nairobi, which swelled from 5 to 59 days; and Paris, which bulged from 7 to 50 days.
Updated to July 7, 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 (239 days)
Answers to "Are You Smarter Than A Junior Consular Officer?"
1) "Eastern Adjudication Center" (former name of the Vermont Service Center).
3) An applicant who is deliberately applying outside of his or her place of residence because of a perception that it would be easier to obtain a visa elsewhere.
8) b. 9 FAM 41.22 N2.5
10) Jasper Johns
Quote of the Corner
"Our greatest vulnerability for someone who has malice in mind is the 'R' nonimmigrant visa."
The section chief at a large consular section, quoted in "Nonimmigrant Visa Adjudication: Standards for Refusing Applicants." http://oig.state.gov/documents/organization/125615.pdf
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