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

Consular Corner: September 2009

by Liam Schwartz

CCFB - The First Month

Already in its first month, Consular Corner on Facebook has become a community of U.S. foreign service officers around the world, locally engaged consular staff, immigration attorneys, congressional staffers, human resources professionals, FSI managers, law students, United Nations employees, and many more.

There have been discussions about the reviewability of visa decisions, the viability of remote NIV interviewing, the identity of the consular officer's "clients," and the definition of a "good" immigration attorney.

We have obtained important visa processing updates, shared Q&As on visa procedures, and received new videos, reports and other resources.

Thank you to all those who have made this community so exciting and dynamic. The Consular Corner community is open to all! Please feel free to join us at
http://www.facebook.com/ConsularCorner

The Ultimate 214(b) Tie

The FAM provides that B1/B2 visa applicants must "demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin." (http://www.state.gov/documents/organization/87206.pdf)

According to Madam le Consul at The Consuls' Files, the question of ties is something which "…has secretly plagued every ConGen instructor since ConGen began, and plagues many working consular officers, as well." Madam remarks that in the opinion of many experienced consular officers: "There is no house, farm, rice land, sheep, goats, apartment, automobile, bank account, ailing mother, dying father, child, job or dog that will bring a person back from the US if he intends to stay there." (http://theconsulsfiles.blogspot.com/2009/08/ties-both-fancy-and-plain.html)

Remarkably, the consular officer at Calling a Spade a Spade may have found a 214(b) tie which is sufficiently reliable to guarantee that the applicant will return home after a short visit to the U.S.:

"A visa interview that always sticks out as one of the most memorable was that of a Palestinian policeman. Frankly, they weren't great bets as visa applicants, but this one presented a piece of evidence I couldn't dismiss: a signed letter from his boss, then-West Bank security chief Jibril Rajoub. I'll never forget the penultimate sentence of that employment letter: 'I can assure you that Mr. So-and-So will return from his visit to the United States, because of the consequences to his family if he doesn't.' Wow.
'You can pick up your visa downstairs at 2:00.'" (http://xcalling-a-spade-a-spadex.blogspot.com/2009/08/good-enough-for-me.html)

An Irish Thumbs-Up

For one Irish applicant, the visa application process is humanized by hugs, heel-clicking and a happy young consular assistant.

"Sleepless night. Wrecked. Porridge. Eggs. Protein shake. Coffee. Dodge. Nerves. Stomach. Rumble. Queasy. Embassy. Searched. Frisked. Entry. Early. Waiting. Forms. Letters. Photo. Photo? No photo. No joy. Start again. Leave. Pharmacy. Passport photo. Return. Frisked. Entry. Late. Queue. Long. Very long. Take a ticket. #150. Waiting. Now serving #120. Wait. Just wait. And wait. Reading. Dozing. Thinking. Reading. Dozing. Waiting. Bored. Over-thinking. Cramped. Sweating. Breather. Bathroom. Space. Praying. Please God. Distraction needed. Dirty runners. Clean runners. Bathroom. Knock Knock. Out in a minute. Waiting room. 40 minutes later. Serving #130. Wuu. Waiting. Boring. So bored.

Waiting for 3 hours, gives you too much time to think of all possible outcomes. Not wanting to tempt fate by thinking it was a shoo-in that I would get the visa, I nicely managed to start freaking myself out. As a distraction, I killed a good half an hour in the bathroom by cleaning my runners [running shoes]. Don't ask me why, they weren't even dirty. Still though, I needed something to take my mind off what I was waiting for. Also, not too sure, but praying while sitting on a toilet, does not seem like the right thing to do. Doesn't really feel like a holy place to pray. However, it did help. Along, oddly, with some help from a small girl.

The visa interview was not what I expected either. I presumed, realistically I thought, that it would involve being greeted by burly security guards, then locked into a interrogation room, bright white lights baring your soul, and being hammered with grueling questions. Not exactly the case. In fact, it is more like the every day task of lodging money in the bank. Go up to a window, speak to a person behind the glass, and they then decide yay or nay. No good cop, bad cop routine. No way to subtly bribe the person either with a deft, Casino-style golden handshake.

When my number is finally called, I was greeted by a regular, sound guy behind the counter. What threw me off a bit, was that it seemed he had brought his daughter to work with him. Hazarding a guess, she was about 5 years old. As I was trying to answer his first question in the best possible way, his daughter starts hitting the keyboard in front of her, extra hard. A few words into my answer, I noticed he was not really taking notice of what I was saying. More like what she was doing. Hit that keyboard little girl! Smack it! Next question… again, my great answer is soon distracted by the little girl ripping up more paper, important documents this time it seems. Rip on! Shred them up! Finally, as he is reading through my application and my letters backing me up, she picks up the computer mouse, and starts waving it around. He doesn't really notice this. Until she tries to throw it away. Sealed the deal for me. He stamps my application and informs me that the visa will be posted out to me soon. Weirdly, the girl looked at me, and did this…[thumbs up].

Not being too sure what was going on, I asked in a confused tone… Pardon? Seriously? That's it? Then, as it sunk in what he had just said, I quickly mumbled thanks, goodbye, and a thumbs up back to the little girl. As casually as I could, I left without jumping in the air and clicking my heels. Although I did hug the lady in the queue behind me." (http://trickaduu.com/2009/09/07/visa/)

Writing with Clarity

In a surprising lapse in clarity of thought, the phrasing of a State Department note would appear to threaten the continuing viability of our current family-based immigration system:

"Grandparents, aunts, uncles, in-laws and cousins cannot sponsor a relative for immigration."
(http://travel.state.gov/visa/immigrants/types/types_1306.html)

Speaking with Clarity

At a recent press briefing on Hillary Clinton's trip to Africa, was Assistant Secretary of State for African Affairs Johnnie Carson speaking with a lack of clarity - or with a surprising stroke of clarity?

"AMBASSADOR CARSON: From Nigeria, the Secretary will move on to Liberia. Liberia is one of our historically most important relationships in Africa. The Secretary wants to use this visit to show and demonstrate U.S. support for the democratic progress that has occurred in Liberia, support and reaffirm U.S. commitment to helping in the development assistance area, and in security sector reform. And the final stop on the President's trip will be in Cape Verde.

QUESTION: The President's trip?

AMBASSADOR CARSON: Sorry, the Secretary's trip.

QUESTION: Almost. (Laughter.)

AMBASSADOR CARSON: That may have been a Freudian slip." (http://samotalis.blogspot.com/2009/08/us-department-of-state-daily-digest.html)

A Tale of Two Consular Sections

Podgorica:
On July 21, 2009, U.S. Ambassador to Montenegro Roderick W. Moore announced the start of U.S. visa application processing in Podgorica.

"God bless justice, United States of America." --Montenegran Facebook user Nenad Neno Nisavic, in response to Ambassador Moore's announcement. (http://www.facebook.com/posted.php?id=32665979711&start=20&hash=e0d95863608f508a6a87536b3c7a3546

Karachi: On August 19, 2009, Special Representative to Pakistan and Afghanistan Richard Holbrooke told local officials that the United States Consulate in Karachi would start processing visas.

"You should know that we hate all Americans. From the bottom of our souls, we hate you." -- Pakistani journalist Ansar Abbasi at a meeting following the announcement. (http://www.nytimes.com/2009/08/20/world/asia/20holbrooke.html?_r=1)

Twenty Years of MRVs

This month marks the twentieth anniversary of the Machine Readable Visa ("MRV"). Party hats and balloons anyone?

The MRV system was first installed in September 1989 as a pilot program in Santo Domingo, working alongside the Nonimmigrant Visa Computer Assisted Processing System (NIVCAPS), the predecessor to the current Nonimmigrant Visas (NIV) system. MRV integrated a photograph into the visa and included an encoded ("machine-readable") zone. The State Department completed worldwide installation of the current NIV system, which incorporates MRV, in fiscal year 1999. (http://www.state.gov/documents/organization/87962.pdf)

Interview-day Inspiration from East of Eden?

Poster mounted in a hallway at the U.S. consulate in Chennai:

"Dream as if you'll live forever, live as if you'll die today." (http://joshkornbluth.com/wordpress/?p=371)

Changes to 9 FAM - Monthly Report

The Language of 214(b)

The month's FAM updates include new guidance to consular officers entitled "The Language of Immigration and Nationality Act (INA) 214(b)." This guidance comprises clarification as to the meaning of INA 214(b).

Interpreting the Language of 214(b) Quoting from the "presumed to be an immigrant" text of the first section of INA 214(b), the new FAM guidance states that "this simply means that the nonimmigrant visa (NIV) applicant must prove to you that he or she meets the standards required by the particular visa classification for which he or she is applying." In most cases, the guidance emphasizes, visa applicants are considered to be applicants for immigrant status and thus not eligible for a NIV unless they satisfy the adjudicating officer that they qualify for one of the NIV categories defined in INA section 101(a)(15).

Applying the Standards of 214(b)
Applicants who do not satisfy the adjudicating officer that they qualify for one of these NIV categories will receive a 214(b) denial. Specific examples offered by this FAM update include the following:

1. Failure to possess sufficient funds to cover educational expenses results in a 214(b) denial of a student visa.

2. Failure to make substantial investment results in a 214(b) denial of a treaty investor visa.

3. Failure to possess the intent not to abandon a foreign residence results in a 214(b) denial of a B visa.

Denying Visas under 214(b)
Most importantly, this FAM update provides the following new guidance on visa denials based on 214(b):

"When adjudicating NIV applications, you (consular officer) must be careful to recognize that the standards for qualifying for a NIV are found in the relevant subsections of 101(a)(15) rather than 214(b) itself. Therefore, a refusal under section 214(b) cannot be equated for a refusal based on immigrant intent. Furthermore, 214(b) does not provide any independent standards for qualifying for a NIV, but refers to specific standards set out in 101(a)(15). This section does not impose a separate standard on immigrant intent. The immigrant intent standards for each nonimmigrant classification are provided in the INA and corresponding regulations." (http://www.state.gov/documents/organization/87154.pdf)

Out-of-District Applicants

This month's FAM updates also include a new Procedural Note placing renewed emphasis on the "Do's" and "Don'ts" of adjudicating visa applications from out-of-district applicants.

According to the Department, refusing an applicant under 221(g) simply because he resides outside the post's consular district is "a missed opportunity" and "a waste of time" both for the post and for the applicant. Moreover, refusing an applicant under 214(b) solely for out-of-district reasons is inappropriate.

The Department also reminds consular officers that while most NIV applicants must establish that they have a residence abroad that they do not intend to abandon - there is no requirement that this residence be in the country where they are applying. Per the Department: "It is incorrect to refuse an out-of-district applicant solely because his or her ties are to a different country abroad."

Liam's musings: Why would the Department consider this kind of refusal to be a "missed opportunity"?

Presumably, the Department's reasoning is that consular officers who refuse a good applicant under 221(g) simply because he's out of district are missing the opportunity to promote bona fide tourism (etc.) to the United States. Indeed, this may be linked to the following text included elsewhere in this same update:

"All necessary administrative steps to facilitate the processing of nonimmigrant visa (NIV) applications should be taken to encourage foreign travel to the United States. Consular officers should ensure that NIV procedures are kept simple and consistent…. Every applicant is to be given prompt and courteous service."

Why would this kind of refusal be "a waste of time?"

Presumably, the Department's reasoning is that if post employees have already gone to all the trouble of taking that applicant's appointment (to the detriment of other folks who are waiting for an appointment), screening him at the entrance to the embassy, entering his data into the NIV software, taking his fingerprints, etc., then the consular officer should make a definitive adjudication: either deny under 214(b) or some part of 212(a) -- or issue. Posts shouldn't "kick the can down the road" and refuse the case under 221(g) simply because the alien is applying in a place where he doesn't normally live. (http://www.state.gov/documents/organization/87420.pdf)

Personal-Appearance Waivers

Restatement of the authority of chiefs of mission to provide discretionary waivers of the biometric and interview requirements for certain foreign officials applying for nonimmigrant visas for nonofficial travel. (http://www.state.gov/documents/organization/87422.pdf)

Extension of Passport Validity for Additional Six Months

Updated list of those countries having agreements with the United States whereby their passports are recognized as valid for return to the relevant country for a period of six months beyond the expiration date specified in the passport. The effect of these agreements is to extend the period of validity of the passport for six months beyond the expiration date appearing on the face of the document, for the purposes of INA 212(a)(7)(B)(i)(I).
(http://www.state.gov/documents/organization/104770.pdf)

Waiver of Passport and/or Visa Requirements

A useful new "desk reference" listing the nonimmigrant categories for which a passport and/or visa is not required for admission to the U.S. This list is particularly helpful for understanding the many categories and subcategories of Canadian citizens who are not required to present a passport. The list also provides updates with regard to the Visa Waiver Program, nationals of Mexico, Bermuda, the British Virgin Islands, and more.
(http://www.state.gov/documents/organization/87158.pdf)

Are You Smarter Than A Junior Consular Officer?

1. Which U.S. Embassy serves the largest consular area in the world?

2. If a consular officer interrupts her regular visa interviews because she has been assigned a codel, what may she be doing as part of this duty?
(a) Interviewing a visa applicant who is a nationally known figure in the host country.
(b) Assisting with the logistics of a visit by a U.S. Senator to the host country.
(c) Processing an emergency passport application by a U.S. citizen

3. Over 500,000 Indians travel to the U.S. every year; how many Americans traveled to India last year?

4. For purposes of the Form I-864 Affidavit of Support, sponsors of immigrant visa petitions must generally show the ability to maintain annual household income at what percentage of the Federal Poverty Guideline threshold?

5. What is the only means for a foreign national to challenge a determination denying her admission under the Visa Waiver Program under an INA 212(a) ground of inadmissibility?

6. True or false: A foreign national who accrues 5 months of unlawful presence in his first stay in the U.S. and 2 months of unlawful presence in his next stay is not subject to the three year bar, despite the aggregated 7 months of unlawful presence.

7. True or false: An applicant who demonstrates that he or she is qualified for A-2 visa status may not be refused on grounds of past criminal activities or prior visa violations.

8. True or false: If an I-864 Sponsor claims to have underreported her income, the consular officer may accept evidence that the underreported income meets the minimum Federal Poverty Guideline threshold.

9. True or false: An AMCIT who was born abroad and has never resided in the United States is not qualified to act as the sponsor of an I-864 Affidavit of Support in an immigrant visa case.

10. How is Roberto Micheletti, the son of an Italian immigrant, connected with a dramatic action recently taken by DOS with regard to the visa application process?

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

This month presents a "triple double": Nigeria, Saudi Arabia and Canada all have two consular posts in the list of top ten visa wait times. Podgorica, Montenegro, which began visa processing two months ago, is tied with Paris for the longest wait times in Europe. Suva, which generally has low wait times, has surged to the top of the list for East Asia and the Pacific.

# Country US Consular Post Visa Wait Time Increase/Decrease from last month Top 10 Position Last Month
1 Cuba US Interests Section Havana 795 days No change 1
2 Venezuela Caracas 239 days No change 2
3 Saudi Arabia Dhahran 111 days No change 3
4 Saudi Arabia Riyadh 85 days + 2 days 4
5 Ghana Accra 74 days + 18 days 8 (tie)
6 Bolivia La Paz 64 days No change 6
7 Nigeria Abuja 46 days - 19 days 5
8 Mali Bamako 43 days + 36 days New listing
9 Canada Montreal 42 days No change New listing
10 (tie) Canada Calgary 40 days No change New listing
10 (tie) Nigeria Lagos 40 days + 11 days New listing

Updated to September 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 (239 days)
Middle East and North Africa  Saudi Arabia/Dhahran (111 days)
Africa  Ghana/Accra (74 days)
East Asia and Pacific  Fiji/Suva (30 days)
Europe and Eurasia  Paris and Podgorica (24 days)
Central and South Asia  Kyrgyzstan/Bishkek (14 days)

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

1) Embassy Suva (Fiji): http://suva.usembassy.gov/visa_services.html
2) (b)
3) 800,000
4) 125%
5) Apply for a visa
6) True
7) True
8) False
9) False
10) He is the de facto ruler of Honduras following the recent military coup. In response to the coup, the State Department has suspended non-immigrant visa services at Embassy Tegucigalpa.

Quote of the Corner

"Getting a US visa is like playing a lottery game. You either get lucky, or don't. If you do finally get an American visa, you can jump with joy. It is acceptable behavior." --Visa Applicant in Dubai (http://www.kippreport.com/2009/08/holidaying-in-the-us-vs-holidaying-in-the-uk/)

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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