Consular Corner: August 2009
This edition of Consular Corner marks our second anniversary. To celebrate the occasion, we have launched a Consular Corner page on Facebook, offering a rich collection of resources for the consular and immigration law communities. We hope you find this site of value and welcome your feedback. Thanks for your readership these past two years!
Ten Questions With: Stephen A. "Tony" Edson
Stephen A. "Tony" Edson retired earlier this year after 28 years with the State Department. During his public career, Tony held key roles in shaping and implementing visa policy, including: Senior Advisor, Bureau of Consular Affairs; Deputy Assistant Secretary, Visa Services; and Managing Director, Visa Services Directorate. As a Foreign Service Officer, Tony filled a series of assignments both domestically and abroad, including postings in India, Japan, Thailand and Indonesia.
To begin to understand why Tony Edson was one of the most highly respected figures in the Department of State, listen to what Maura Harty, the former Assistant Secretary of State for Consular Affairs, has to say:
"Tony is smart, effective, efficient and visionary. He accepts responsibility for his own actions as well as those of his team. Tony's quick and self-effacing wit lightened many a tough moment and on occasion even helped us prevail in cases of inter-agency disagreement. One of Tony's greatest strengths is his ability to disagree, without being disagreeable. Smart, tireless, ethical and yes, hilarious, Tony Edson will always be one of my 'go to' people. I trust him. I admire him. I think the world of him."
Tony graduated from the University of Kansas with a BA in East Asian Language and Culture in 1980. He holds a Masters in Management from the Sasin Graduate Institute of Business Administration at Chulalongkorn University, Bangkok, Thailand, and a Masters of Science degree in National Security Strategy from the National War College, Ft. McNair, Washington DC.
We are honored to offer the following interview with Tony Edson, who since retirement from public life has taken the wheel at SAEdson, LLC, a management consulting firm.
Liam Schwartz: Congratulations on your recent retirement! What have been the main challenges - and joys - in your transition from government service to the private sector?
Tony Edson: I enjoyed my government career, and particularly loved consular work, which I was involved in for most of my 28 years with State. The State Department was my first real job after graduating from college, however, and I didn't really have much experience in the private sector unless you count part-time food service jobs. The biggest joy in my retirement has been being my own boss. I work as an independent consultant and have to be responsive to my clients, but ultimately, I'm the one who decides how to allocate the hours in the day. I work from my home, normally in jeans with my laptop on the couch. The biggest challenge at first was navigating the various angles you have to think through when you are self-employed. Permits and licenses, estimated tax payments and SEP IRAs - none of it particularly hard, but it's a new vocabulary.
LS: You had extensive overseas experience before joining the Foreign Service. How did that background inform your work as an American consular officer?
TE: As you mention, before joining State I had lived most of my life overseas, something that I'm sure is not unusual in the Foreign Service. I think this experience was most useful because of the way it enabled me to shift points of view and better understand where visa applicants or foreign government officials were coming from. CA has always resisted bright line tests for visa eligibility largely because any such tests would be blunt instruments designed without being able to take into account the differences of every applicant in every location around the world. Overseas living experience has made me sensitive to diversity of point of view.
LS: Malcolm Gladwell notes that if you look at a whole range of cognitively complex activities, time and again you find that expertise is reached only after a minimum of 10,000 hours (approximately ten years) of practice. Assuming this to be true, can it be really be said that first-tour consular officers are sufficiently expert in the visa application process to properly perform the important visa adjudicating duties assigned to them?
TE: This is an interesting question and one we're not going to resolve one way or the other in this column. Entry level officers in general bring a range of experience, brains and dedication to the visa function that makes them quite effective at the job of adjudicating visas. Of course, experience in the business also matters quite a bit, and every group of newer officers should have experienced consular managers working with them. This is the ideal and the reality most of the time, and I think the mix of dedicated newcomer with seasoned mentor is a good one. Another thing to keep in mind, of course, is that staffing the visa function with only midlevel adjudicators is unrealistic. For one thing, the adjudicators would have to get Gladwell's ideal 10,000 hours of experience somewhere.
LS: The Department has made significant efforts to address the backlog in the processing of special security clearances (Visas Mantis) for visa applicants who engage in certain fields of science and technology. Despite these best efforts, respected publications such as the New York Times and Wall Street Journal have recently carried highly critical reports about science and engineering students and researchers encountering visa delays of many months. What words of encouragement do you have for the consular officers on the ground in active "Visas Mantis" posts who take the brunt of this criticism? What encouragement would you offer to the visa applicants themselves, who bear the brunt of the visa delays?
TE: Although I'd rather not go into a lot of detail here, I would remind everyone, inside the State Department and out, that the screening procedures used in the visa process are the result of a lot of attention by a lot of very smart and very dedicated people. And those people never stop working. In my experience, we were never satisfied that we had a process so perfect that we could afford to sit back and rest on our oars. Things will get better over time.
LS: As a talented speaker of Japanese, which expression of that language best describes the U.S. visa application process?
TE: I wanted to use the expression "akinasu wa yome ni kuwasuna" (don't let your daughter-in-law eat your autumn eggplants), not because it's particularly appropriate but because it sounds wacky. However, I guess I'll fall back on "koketsu ni irazunba koji o ezu" (if you do not enter the tiger's cave you will not catch its cub). This is a proverb that roughly means "nothing ventured nothing gained," and the connection I see to the visa process is that I would always encourage applicants to apply and, if necessary, reapply. Many times I've spoken with people who are too frightened of being turned down to make an application in the first place. Likewise, the phrase suggests to me that consular officers shouldn't be afraid of being wrong some of the time. Adjudicators need to learn from their mistakes, but should be ready to take a chance on their gut reaction to an applicant's story.
LS: In your experience, do Foreign Service Officers who are the children of immigrants to the United States have different sensitivities than FSOs of multi-generational Americans, and do these sensitivities influence their service as visa adjudicators?
TE: This is a tough question to answer. In my experience, on the ground and on the visa line, there is no real distinction. Both types of officers are dedicated professionals doing the job well. Needless to say, children of immigrants bring a different kind of language and cultural experience to the interview window, and are more likely to have had some sort of personal exposure to the visa process themselves.
LS: Like all of us, consular officers are guilty of using stereotypes from time to time. From the perspective of an outsider, it would seem like human nature to stereotype visa applicants simply to be able to get through hours and hours of visa interviews, day in and day out. As someone who served as a Foreign Service Officer for 28 years at multiple U.S. consular posts, how can supervisors best encourage their officers to overcome the natural tendency to profile or cubbyhole individual applicants?
TE: This is a major challenge for every consular manager. Validation studies, the practice of randomly selecting issued visa cases for later follow up to verify timely return, can be a valuable tool. This needs to be done right, though, and not as a simple statistical exercise. Instead, managers should make the effort after the study is completed to try to look for cases that broke the mold and then share them with officers to help them understand that there can be exceptions to every rule. Of course, most officers instinctively know that broad stereotypes are a mistake, and perhaps the best instructional tool a consular supervisor has is time on the line or, second best, time spent reviewing a sampling of refusals. Having said all this, however, we should remind ourselves that unfortunately the stereotypes arise in the first place because so many applicants in a given population behave in a particular way. Regrettably, sometimes dishonest applicants can spoil things for others.
LS: The perception still exists in some consular quarters that immigration attorneys are part of the problem, and not part of the solution towards creating and maintaining an effective visa application procedure. In your new role as a management consultant, can you suggest some Best Practices for the immigration-law community that could contribute to enhancing consular officers' appreciation for the role of immigration attorneys?
TE: Immigration attorneys provide a valuable service for many applicants, particularly in the more complex visa categories. Through LegalNet, AILA and other channels, the legal community also helps the Visa Office manage overseas operations by bringing cases and potential problems or misunderstandings to CA's attention. I suggest that attorneys who specialize in a particular region or a caseload that appears more often in some posts make an effort to introduce themselves to the consular team there. Many posts find it difficult to meet with attorneys in person out of the understandable pressures of workload and a feeling that they should open their doors to everyone or to no one. However, nothing prevents an attorney from writing a letter introducing themselves and their practice. Another thing that might be helpful, and I know this perhaps goes against the grain, is to restrict appeals or arguments to the most pertinent matters of law or fact and not throw the kitchen sink at the consular officer. What I am referring to here is that sometimes there is a tendency to make every possible argument for the applicant, or to argue against every statement that the consular officer might have made in explaining the decision. Sometimes less is more and will keep the discussion focused on central issues.
LS: You were instrumental in many of the innovations that modernized visa processing after 9/11. You accomplished a lot, but what pet projects were still on your to-do list when you left the State Department?
TE: I am proud to have been part of the team that made many of the post 9/11 changes to the visa process. As you know, not all the changes were perfectly executed, and in some cases it was a matter of choosing the least bad course of action to ensure the security of the visa process rather than waiting on some ideal perfect solution. On balance, though, a tremendous amount was done, most of it positive. The one thing that I would like to have seen would be progress toward a more electronic visa solution, something that allows some classes of travelers to apply and be issued electronically in some cases rather than continuing to rely on paper visa foils stuck into physical passports. I think something along those lines will come along in the next few years and look forward to reading about it.
LS: What is your 30-second elevator pitch for making the world a better place?
TE: Since I spent my career almost entirely as a consular guy, I'm going to take the easy way out and focus my answer on consular work instead of world peace or ending hunger. I believe that the USG is on the right track in its emphasis on improved information sharing, which will allow consular officers, border inspectors and others to make better decisions more quickly. More electronic processes will both produce better information and be made possible by the exchange of that information. And, since I do not believe the visa function can realistically be staffed at the appropriate level over time, cooperation between the USG and the private sector, both in the obvious outsourcing of not inherently governmental functions and in improved coordination and dialogue, is essential.
"Immediate Family Members" and DOMA
Without much public fanfare, the Department of State has amended the definition of "immediate family member" for foreign government officials coming to the U.S. As the result of this amendment, domestic partners and same-sex spouses are now eligible to apply for derivative visas in the A1, A2, G1, G4, and NATO categories, provided their relationship is recognized in their home countries.
How was the Department able to implement this definitional change if the Defense of Marriage Act (DOMA) - which defines marriage as a legal union between one man and one woman for purposes of all federal laws - is still in force?
The reason is that the INA describes the A and G visa categories as being available to foreign officials and "the members of their immediate family" - NOT their "spouses." In contrast, derivative visas in the L, H, F, J, etc. categories are legally defined as being available to "the alien spouse and minor children" (emphasis added).
The State Department has therefore exercised its authority to amend the definition of "immediate family" in the context of A and G derivative visas - without running afoul of DOMA.
Parenthetically, despite their eligibility for derivative A and G derivative visas, domestic partners and same-sex spouses of foreign government officials will remain ineligible for employment authorization: EADs are issued by the Department of Homeland Security, which still applies the legal standards set forth in DOMA.
One interesting caveat to the new definition for A and G visa family members was raised by a visa officer in Saudi Arabia:
"I adjudicate 90% of our A2 visas at post, and we regularly refuse the second and third wives of our visa applicants, as their marriages are not considered legally valid in the US and therefore they cannot derive status from their husbands, the primary applicants. Will these wives now be able to get G4 or A2 visas, using the same logic as this ruling?" https://www.blogger.com/comment.g?blogID=31417199&postID=4684672049446663680
A poetic look at the visa application process, from a consular officer in the field:
A common label
They try to uphold
The angry AmCit
Applicants all know
The high priest of "No"
You spot a bad case
Pounding on the glass
In a shockingly undiplomatic letter to Ambassador Carol Rodley, a senior Cambodian parliamentarian and former chair of the Foreign Affairs Committee accused U.S. visa officers at Embassy Phnom Penh of lacking ethics and professionalism, abusing their positions of power, humiliating visa applicants, and generally "destroying people's hopes and human needs." The parliamentarian, MP Son Chhay, also attacked the visa application process as "subjective and flawed."
MP Son Chhay's letter is reproduced below, followed by a related item.
"HE. Ms. Carol Rodley
August 7, 2009
I am writing this letter to congratulate you on your admirable efforts in helping Cambodia to develop as a strong nation in accordance with democratic principles. I sadly, also must raise some concerns over complaints I received about the performance of consular officers at the Visa Service Section of the Embassy.
There has been for quite some time now, certainly since I was the Chair of Parliamentary Committee on Foreign Affairs, numerous complaints about consular officers at the Visa Service Section lacking clear ethical and professional guidelines, resulting in officers abusing their position of power, mishandling applications, treating Cambodians disrespectfully and misjudging what were often genuine applicants, at interviews, for fake applicants. Recent complaints have led me to write this letter to you in the hope that I could find some answers that will enable me to give back to the Cambodian people, confidence in your visa application process and above all the very democratic principles on which we hope to rebuild Cambodia on.
As you are well aware, Cambodians have suffered greatly because of war, the killing fields and foreign invasion, forcing many Cambodians to flee their country. Many resettled in the USA but had to leave behind family members. As a result many Cambodians seek out their loved ones and therefore apply for visas to the USA. Many of these applicants have to endure humiliation and great stress only in many cases to have their genuine applications rejected. I was told about one case of an old lady who was inconsolably distraught after having her application rejected three times for a visa to visit her daughter who was to undergo a serious medical operation. More recently I have heard of a number of students who applied for study visas only to be shouted at and accused of being liars which has left these young people with a negative impression of the USA government as being aggressive and only serving those with money and influence. I myself was recently involved in the case of a mother whom I had tried unsuccessfully to obtain a visa for so that she could attend the funeral of her daughter who died unexpectedly and bring her ashes back to Cambodia, which was again, cruelly rejected.
I believe that your officers are not intentionally behaving with cruel intent but have perhaps become frustrated with the system themselves which deals with fake and genuine applicants alike and that this has caused them to take these additional hard line measures that has perhaps created this misunderstanding. Mr Greg Lawless, the First Secretary at your Embassy, promised to help by arranging a meeting between myself and your consular officers, but I believe it is important to ensure that you also are aware of the issues, and especially, because I have always admired your ability to put things into perspective with your good intentions.
So it is with great regret that I must advise you on this matter. I hope that the Embassy can find a positive resolution to enable Cambodian people to access visa applications without the need for the current heavy-handed approach taken by frustrated consular officers who too often must base their decision on a quick 10 minute interview. The potential to destroy people's hopes and human needs is too great to risk using such a subjective and flawed process. Please if you could personally make the time to address this issue I would greatly appreciate it.
Please accept, Your Excellency, the assurances of my highest consideration.
MP Son Chhayc Party Whip of SRP
Former Chair of Foreign Affairs Committee
* Mr. Greg Lawless
In the Wake of MP Son Chhay: Consular Stimulus Needed
Five years ago this month, Secretary Powell cabled chiefs of mission, describing the "Secure Borders, Open Doors" mission as "one of the most important goals of the Department of State, and of this nation." According to Secretary Powell, "Secure Borders, Open Doors" is a phrase which "describes a vision of an America with robust and effective measures to safeguard national security that is still able to open its doors to the exchange of people, ideas and goods that has helped make this nation great." Somewhat ominously, Secretary Powell continued: "While we have done an excellent job in strengthening the visa process and ensuring our border security, we must not neglect the other part of the equation - our ability to attract and welcome qualified tourists, students, patients, scientists and business people to the United States."
The ethical and professional charges levied against U.S. consular officers by MP Son Chhay are unjustified and worthy of the strongest form of condemnation. No one doubts that consular officers - and their managers - must approach visa work with a great deal of sensitivity to applicants' hopes, dreams, and needs. Indeed, this is part of the "subjectivity" underpinning a humane visa process that serves the interests of both the United States and, to the extent possible under the law, visa applicants.
Still, we all read the papers and internet forums and have to admit that MP Son Chhay has expressed (albeit in as crude and ugly a fashion as may be thought possible) a perception about the visa application process which is too prevalent for comfort. Just this week, for example, the prestigious Science magazine published an article charging that the visa process as presently constituted is "placing scientific careers at risk."
Without some sort of consular stimulus on par with the size and commitment of the government's current fiscal stimulus policy, we may need to concede that "Secure Borders, Open Doors" vision is bankrupt, and that we simply can't do both things simultaneously. What is certain is this: we've entered a stage in which the consular and immigration law communities must pool their energy and ideas to innovate a more workable visa application process.
Worldwide Nonimmigrant Visa Referral Policy
The Department has published a detailed worldwide policy statement on nonimmigrant visa referrals. Published as 9 FAM Appendix K, Exhibit I, this 14-page policy guidance is a comprehensive instructional manual on how consular posts are to utilize the visa referral system.
Previously, each post was required to come up with its own referral policy, which was reissued annually by the chief of mission and reviewed by the Visa Office. The new worldwide policy replaces all the post-specific documents. Moreover, the Department now explicitly requires attendance at referral "school" for anyone who wishes to make a referral.
Among the provisions of the Department's worldwide nonimmigrant visa referral policy statement are the following:
The visa referral system is a "key consular function" which serves as "an important tool for advancing U.S. interests abroad." On the other hand, the visa referral system, if not judiciously used, can facilitate inappropriate influence, or the appearance of such influence, on individual visa adjudications.
A visa referral can further U.S. Government interests by advocating or expediting visa issuance for certain key foreign contacts whose travel to the U.S. is clearly in our nation's interest, or advances the priorities of the embassy or consulate.
The visa referral system is the only appropriate mechanism for U.S. government employees abroad to advocate on behalf of visa applicants. Communications seeking to influence the visa process made outside the referral system are "categorically inappropriate." Among these inappropriate "communications" are the following:
There are only two valid classes of visa referrals: Class A and Class B. Both types are appropriate only if they further U.S. national interests. Informal courtesy arrangements (sometimes called "Class C" referrals) are explicitly prohibited.
Class A referrals are by their nature both a request for expedited handling and for visa issuance it at all possible. Class A referrals must meet all three of the following conditions:
Examples of acceptable Class A referrals might include:
Class B referrals are a request for faster interview appointment scheduling, and unlike Class A referrals, do not vouch for the presumed eligibility of the visa applicant. Unlike a Class A referral, a Class B referral may be submitted when the applicant is not personally known to the referring officer. A Class B referral may also be submitted for a previously refused applicant.
Examples of acceptable Class B referrals might include:
Only U.S. citizen officers coming under the authority of the chief of mission are eligible to make visa referrals. Accordingly, U.S. officers at other embassies or in Washington, DC are not authorized to submit referrals. Referring and approving officers are required to attend a briefing by the consular section chief and sign the Worldwide Nonimmigrant Visa Referral Policy Compliance Agreement before submitting or approving any referrals.
The Worldwide Nonimmigrant Visa Referral Policy Compliance Agreement appears at the end of this policy statement. A sample visa referral appointment letter is produced in 9 FAM Appendix K, Exhibit II.
Changes to 9 FAM - Monthly Report
Published changes to Volume 9 (Visas) of the FAM over the past month include the following:
Visa Issuance Notations
New guidance published, encouraging consular officers to enter notes in the Consular Consolidated Database (CCD) documenting visa issuances. Three reasons are given for this new guidance: (1) issuance notes assist travelers at the port of entry if they are referred for secondary inspection, as CBP will understand better how the traveler qualified for a visa. (2) CCD notes will enable the Public Inquires Division in Washington, DC to assist with inquires into cases that attract outside attention. (3) Issuance notes facilitate review of cases by consular managers.
NOTE TO ATTORNEYS: Visa issuance notes are a good tool in fighting visa fraud, in the sense that consular and CBP officials can follow-up on whether travelers are doing what they said they'd be doing at the visa interview. Accordingly, if your client asks whether she must really make that initial trip to the U.S. with her elderly parents, just like she told the consular officer she'd be doing, your response generally should be "yes."
Interestingly, the new guidance provides that consular officers "should generally" enter issuance notes except for cases that are "clearly routine." This language indicates that the remarks are preferred, but not mandatory, and that consular discretion to act otherwise still exists (see 2 FAH-1 H-112.3). In practice, we hear that many consular managers are requiring their officers to enter issuance notes on ALL cases, in light of the value these notes have to the post's anti-fraud efforts.
Visa Refusal Notes
Guidance on visa refusal notes which previously existed in cable guidance has been incorporated into the FAM. Consular officers are told that their remarks regarding visa refusals in the CCD must be written in a manner which is "professional" and which is "clearly and legally valid." Officers are told to "avoid using non-English words, and making irrelevant remarks." In something which would make Gladwell smile, the guidance concludes: "if the issuance seems counterintuitive, you should comment on the factors that led to issuance."
J-1 Reporting Times
If the consular officer believes that a J-1 visa applicant will be unable to meet the program start date specified in the applicant's Form DS-2019 (the date may already have passed, for instance), the officer is urged to ensure that the sponsor is aware that the applicant is arriving later than the program start date. According to this FAM update, the most reliable way to ensure this is by reviewing the CCD to determine whether the sponsor has amended the applicant's SEVIS record to change the program start date. If this has not been done, the officer may request the sponsor to enter into SEVIS a new program start date that the applicant can meet.
Are You Smarter Than A Junior Consular Officer?
1) If a visa adjudicator introduces herself as a FAST officer, what does this indicate about her?
2) True or false: The U.S. Mission to the United Nations is authorized to issue "A" and "G" category visas.
3) What is the name commonly given to the interagency analysis of the visa application data of students, scholars and others with expertise in fields of non-proliferation concern?
4) INA 214(b) is:
5) What is the maximum duration for participation in a J-1 Summer Work Travel (SWT) Program?
6) The 24-month bar generally applies to:
7) Which of the following grounds of ineligibility found in INA 212(a) do not apply to nonimmigrants?
8) True or false: an E-2 visa applicant, who holds dual nationality with a country other than the treaty country in question, can have the approved visa issued only in the passport of the E-2 treaty country.
9) True or false: fitting a certain demographic profile ("young", "single", etc.) is grounds for a 214(b) visa refusal.
10) Which talented Foreign Service Officer succeeded Tony Edson as Deputy Assistant Secretary for Visa Services?
Top Ten Visa Wait Times at U.S. Consular Posts, August 2009
Havana continues its steady climb towards a visa wait time of 800 days. Dhahran stays at "triple one" for the third month running. Germany surprises with two posts surging into the Top Ten.
Top Wait Times by Region:
The Americas (excluding Cuba) Venezuela/Caracas (239 days)
Answers to "Are You Smarter Than A Junior Consular Officer?"
3) Visas Mantis clearance.
10) David T. Donahue.
Quote of the Corner
In honor of the man and the interview, this month the "Quote of the Corner" includes four of the all-time best Tony Edson quotes:
"Our fundamental openness to the world is the source of our strength and sense of ourselves." http://travel.state.gov/law/legal/testimony/testimony_3204.html
"Facilitation of international education (is) a matter of national security. The value of the interpersonal exchanges and cross-cultural understanding that come about through international education helps to create a more stable world." http://travel.state.gov/law/legal/testimony/testimony_3950.html
"This nation is stronger when we remain true to our finest principals, to our history and our common ideals. America is a nation of immigrants, and has always welcomed visitors from all over the globe. We are stronger as a nation when we draw strength from the contributions of the world's best and brightest."
"The context for all our efforts with regard to visa procedures continues to be September 11, 2001." http://travel.state.gov/law/legal/testimony/testimony_3204.html
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