Consular Corner: October 2009
Ten Questions With:
We are greatly honored to present the following interview with Consul General Julie A. Ruterbories, an award-winning member of the Senior Foreign Service. This interview is part of our series which introduces the reader to the exceptional individuals who manage and direct the visa application process.
Julie A. Ruterbories began serving as U.S. Consul General in Amsterdam four months ago. Amsterdam is the latest assignment in her extensive and multifaceted career of service. Ms. Ruterbories began her Foreign Service career as a consular officer at the U.S. Embassy in Bishkek, Kyrgyzstan, and served additional consular tours in Baku, Azerbaijan; London, England; Skopje, Macedonia; and Pristina, Kosovo. In Washington, Ms. Ruterbories served as a congressional liaison officer, where she was awarded the Secretary's Award for Public Outreach. She also served in the State Department's Operations Center. Most recently, she was Special Assistant to the Assistant Secretary for Consular Affairs.
Ms. Ruterbories earned an undergraduate degree in History and Soviet Studies from Georgetown University and a graduate degree in International Affairs from Columbia University.
Liam Schwartz: It must have been an amazing experience to work directly for Assistant Secretaries Maura Harty and Janice Jacobs in your previous Foreign Service assignment. Can you give us a sense of the pace and intensity of serving in such a position?
Julie A. Ruterbories: Working for Assistant Secretaries Harty and Jacobs was indeed an amazing and incredibly rewarding experience. I'm not a morning person so getting into the office by 6:30am was a challenge. I love to travel so I particularly enjoyed visiting consular sections and meeting consular colleagues all over the world. After almost three years, I think I finished with close to 550,000 frequent flyer miles. The breadth of issues was enormous and you never had to wait long for a crisis to appear. The massive evacuation of American citizens from Lebanon began on my third day in the office. I hadn't heard the expression, "drinking from a firehouse" before, but I learned very quickly what it meant. I have to say, though, that what I remember most from my time as Special Assistant is the feeling of being part of a close-knit family and how much I laughed. We all worked incredibly long and hard hours, but God, did we also have fun!
LS: You were involved with the Department's public outreach efforts in support of the Western Hemisphere Travel Initiative (WHTI). Following implementation of the final phase of the land and sea rule of WHTI on June 1, 2009, some reports have indicated that the number of people entering the country through our northern and southern land borders has dropped sharply. WHTI has the dual aims of facilitating trade, travel and tourism while enhancing our national security; assuming the accuracy of the reports of reduced travel, can we realistically do both things simultaneously?
JAR: I believe that we can. Many factors have influenced international travel trends this past year. Certainly the international financial situation, the collapse of the U.S. housing market and rising unemployment are major factors in reduced travel. CA has an extremely efficient and secure passport issuance process. There is no doubt in my mind that travel, trade and tourism are enhanced when all travelers have secure documentation.
LS: What's one thing you wish you had packed more of before moving to Amsterdam?
JAR: I honestly can't think of anything. After more than two dozen moves in my life, I've gotten pretty good at packing. And you can get anything here in Amsterdam. What I'd really like is a weaker Euro.
LS: How do the challenges in adjudicating nonimmigrant visas differ between posts in Visa Waiver Program (VWP) countries and those in non-VWP countries?
JAR: Each visa application is judged on its individual merits so essentially there is no real difference in the standards and procedures used by consular officers adjudicating applications in a VWP country or a non-VWP country. In my experience, the variety of applicants is greater in VWP countries, typically as a reflection of their economic, cultural and social diversity. I am a firm believer in the benefits of welcoming legitimate travelers to the United States - tourists, students, businesspeople, entertainers, you name it. I truly believe the best advertisement for America is America.
LS: Given your experience serving your country behind the Iron Curtain, you must have witnessed some breathtaking changes in those societies. What's it like to have a front-row seat to the unfolding of the momentous events that revolutionized the former Soviet Union and its allies?
JAR: I remember sitting on the Arbat in Moscow in 1988. A friend and I were having our portraits sketched by local artists. When they discovered we were Americans, they began asking us questions and soon we were surrounded by dozens of Muscovites. I've never forgotten their questions, all of which focused in some way on freedom - freedom of movement, could you really move to New York if you wanted to? - freedom of expression - could you really study what you wanted to at university? Freedom of religion - did we believe in God? I was back in Moscow last summer; it's a completely different place.
LS: How readily have the tech-savvy Dutch adapted to the new ESTA program?
JAR: The Dutch have adapted quite readily to the new ESTA program. They are on par with their neighbors. We rarely receive any ESTA-related queries and are extremely pleased with how smoothly the operation is running.
LS: As a key player in the Bureau of Consular Affairs' core leadership group, how do you promote the kind of excellence embodied in the Consular Leadership Tenets among your staff?
JAR: I try to incorporate the tenets into everything I do but above all, I believe in communication. I recently wrote a thank you note to a member of our staff here at the Consulate in Amsterdam; she played an instrumental role in our successful 9/11 interfaith memorial event. In her position she has seen countless thank you notes but she told me this was the first time that she had received one. I think a key to good leadership is to recognize it, model it and reward it.
LS: What's the most important lesson that you or someone on your staff has taught an immigration attorney?
JAR: I consistently hear people say that coming to an interview prepared and able to demonstrate your purpose of travel is always helpful to the officer on the other side of the window. I think that applies to everyone but it is probably useful for immigration attorneys seeking to give their clients good advice.
LS: What's the most important lesson that an immigration attorney has taught you?
JAR: I have worked with immigration attorneys that have devoted their professional lives to acquiring the skills and knowledge that make them effective representatives for their clients. I like to think that those individuals have enabled me to see that we are all working toward the same goal.
For most travelers to the United States their first "American experience" is their visa interview with a consular officer, who must project a positive image of our country while performing the difficult task of determining which visa applicants are qualified for visas under the law. There are more than 1,000 consular officers serving at our U.S. diplomatic posts abroad. Each officer receives weeks of extensive training on immigration law, visa classifications, and interviewing techniques before heading out into the field. They acquire considerable knowledge about the culture of their destination country to be fully prepared to analyze visa applications in depth. In all but the smallest posts, they have experienced colleagues who serve as mentors and coaches.
So, with each side doing their best work we can provide the best service.
LS: If you could time travel back to Holland of 1620, what counsel would you have for the Pilgrims about to depart for England, where they eventually boarded the Mayflower for an unknown future in the New World?
JAR: Oh Dear. I think I would have told them to bring more scotch; they were going to need it.
Comprehensive New Policy on DNA
The Department of State has issued comprehensive new policy guidance on the use of DNA testing in the visa application process. This new guidance is set forth in a new set of extensive Notes to 9 FAM 42.44.
In this new guidance, the State Department declares DNA technology to be the only acceptable non-documentary method for proving a biological relationship. The preferred specimen collection technique for DNA testing is by buccal (cheek or mouth cavity) swab.
According to the Department, DNA testing is expensive, complex and time consuming and thus should be recommended only if no other credible proof of the claimed relationship exists. Consular officers should treat DNA testing as a last resort: all other possible methods for confirming the existence of a biological relationship must be exhausted before recommending this course of action. Even then, DNA testing may only be recommended, but never required by the consular officer. Consular officers may recommend DNA testing solely to prove a relationship; they may never recommend DNA testing in an attempt to disprove a relationship. Only DNA test results reporting a 99.5 percent or greater degree of certainty as proof of a biological relationship between a parent and child may be accepted in visa cases.
The Department clarifies that consular officers adjudicating Form I-130 Alien Relative petitions are not authorized to approve the petition if DNA test results are the sole evidence of the claimed biological relationship. Such cases are not "clearly approvable" per the provisions of 9 FAM 42.41 N4.2-3; accordingly, they must be forwarded to USCIS for adjudication. Parenthetically, USCIS is authorized to approve I-130 petitions supported solely on DNA testing.
Under a new procedural protocol, all DNA collections must take place at the embassy or consulate; it is no longer acceptable to collect samples at an off-site facility. DNA samples are to be taken only by lab technicians employed by the panel physician. Even then, these lab technicians seeking to take DNA samples at the embassy or consulate must be first approved by the post's consular management. In so doing, consular management must, inter alia, complete CLASS name checks and review previous visa applications submitted by the technician. Consular management may validly reject a lab technician who has had multiple visa refusals.
The DNA collection must be witnessed by the consular officer or another American citizen employee of the consular section possessing an appropriate national security clearance. The collection itself may be undertaken at a regular interview window.
As Madam Le Consul of The Consuls' File wrote shortly after these new policy rules were cabled to consular officers in the field, the guidance is "a welcome update to the FAM, and a handy reminder of what DNA can and can't do, what we can and should expect it to do, and what we can't, and shouldn't." Parenthetically, a few words about MLC and the sudden disappearance of her outstanding blog appear further on in this column.
Respect and Prestige
Respect for colleagues and customers is part of formalized State Department policy:
"The treatment of our customers is an important aspect of how we are perceived as an agency. Because people will generally treat each other the way they are treated, good customer service must begin with the way we interact with each other. It is the policy of the Department that our employees must treat each other, as well as our external customers, with proper respect and courtesy at all times."
As the Consular Officer at "Calling a Spade a Spade" remarks, a policy of respect for visa applicants can have a very real - and very positive - impact on American prestige:
"Nothing ever makes me cringe more than overhearing a colleague in an adjoining visa interview window, in the process of refusing a visa applicant, utterly denigrate and devalue the life of that applicant. It's disappointing enough to have an application of any sort denied; it's downright crushing to have someone tell you your job is a joke, you lack personal relationships strong enough to compel you to come back, and everything you've worked so hard for is singularly unimpressive to the nameless bureaucrat summarily dismissing your request for a visa.
I worked in an oil-rich nation with a large expatriate population some time back, and I had an applicant one day I'll never forget. He was either Pakistani or Indian -- I don't remember which -- and he was impeccably dressed and meticulously groomed. He presented an employment letter that showed he was a captain at a prestigious hotel making the equivalent of about USD 450 per month. In his mind, he was quite successful. The job was relatively prestigious, when compared to the grunt work his compatriots were doing in 110 degree-plus heat, and he was making far more than he'd ever dream of earning at home. It was clear from the interview that it hadn't really occurred to him that I wouldn't view that employment in the same way, and that he wouldn't actually have a good shot at getting a visa.
The fact is, though, that even if his present intentions were pure, the temptation to earn more in the U.S. was just too great. Not a good bet [for bona fide B1/B2 travel].
That said, there wasn't any need to shatter his pride in the life he had built for himself, was there? No need to tell him that USD 450 wasn't actually much money, no need to tell him that his status as an expat worker who left his family at home demonstrated that he was perfectly willing to spend long periods away from family to give them a better life at home, no need to tell him that I didn't find his story about visiting a cousin in Miami for two weeks unlikely. All that may have been true. But maybe not; I'm not omniscient. Maybe he really would have gone for a short trip and returned.
On the off-chance that I'm wrong about this guy, let's make the only insult the refusal of the visa. I told this gentleman that he worked at a great hotel, that it looked like he was doing very well for himself, and that I commended him for that. Then I told him that despite this, U.S. immigration law stipulated that if I had doubts about whether he'd return, I had to refuse the visa. He politely accepted this explanation, gathered his documents, and left the window, head still held high and perception of his life and career intact.
Of course, if he had become belligerent and demanded more specificity, then my ability to be as respectful would obviously have been more limited. And sometimes that happens. But when it doesn't, when the applicant gets the message without you having to systematically break down in excruciating detail the reasons for the refusal, then take that route.
The prestige of the U.S. can actually be higher in a nation with a 90% refusal rate, when applicants feel that they were at least treated fairly and with respect, than in a nation where the refusal rate is 10%, and applicants feel 'ugly Americans' routinely and callously [trod all over] their self-esteem."
Respect for MLC
"The Consuls' Files" -- probably the best visa blog in the universe -- has disappeared from our screens. Over a relatively short period of time, 'Madam le Consul' provided more consular education to more people than any of us would have thought possible. For her devoted audience, the reason for MLC's sudden disappearance remains a mystery; that said, opinion in consular cyberspace is virtually unanimous that "The Consuls' Files" was forced to close down by a skittish Bureau of Consular Affairs.
For a brief few months, MLC provided us with an enhanced level of information regarding the world of consular officers. In so doing, she created more public trust and support for that world than any one person has done in a very long time. We are deeply saddened by the loss of "The Consuls' Files" and thank MLC for having given so much in such a short period of time.
MLC's final blog piece, posted on October 2, 2009 was perhaps appropriately entitled "Yuck." We reproduce this final post in its entirety, below:
"There is an understandable dread among new consular officers, having to do with dead people.
They suspect that dead Americans lying around local morgues waiting to be positively identified might not look like Great Uncle Hal did at his open casket funeral, which was creepy enough. They suspect, in fact, that the dead Americans might look pretty bad, and that they - the consular officers - will have to look at them and pretend they don't mind.
And they're right to worry. Most dead people don't look like Great Uncle Hal did.
In fact, they can look pretty sad: often baggy, swollen, the wrong color, and in need of a good dusting, a comb, a lot of blush, and often a healthy squirt of Febreeze.
But here's what Madam realizes after many such encounters.
The dead people can't help it. In fact, they would feel terrible if they knew they looked and smelled this bad for respectable strangers. But they can't do anything about it, because they're dead.
They're not creepy or horrible or disgusting or nasty or scary. They're just dead.
Madam's most recent dead American was one who had been riding in the passenger seat of a crappy little Eastern European Before the Wall Fell tin can of a car that ran into a piece of Russian snow moving equipment at a high rate of speed. Without a seat belt. Now, as you can imagine, when the Russians build snow moving equipment, they are not messing around. So when that crappy little car hit the machine, the machine did not give, and the American went through the cheap non-safety-glass windshield at a high rate of speed, face first.
The morgue did its best. Still, comparing the passport photo with what was probably the front part of the American's head was a challenge.
And it wasn't his fault. He was a great guy, according to his wife on the telephone, but even if he weren't, it still wasn't his fault. He was just dead, and a mess, and he couldn't help it. It was no big deal. Really, it wasn't. What bothered Madam most was not the gentleman's iffy appearance, but his butcher-shop smell...quite fresh and not unpleasant, but very, very truthful.
Nevertheless, a good ACS officer will always take a virgin (in this sense) ELO along to identify a dead American, so that the ELO can go sit on the curb outside if he or she begins to feel queasy. An ELO should never have to identify the dead for the first time alone, and an LES, however experienced and strong, can't substitute for an official American.
Take a deep breath, smile, and think, "Poor guy. What a shame."
It helps a lot.
So does going outside and sitting on the curb."
Changes to 9 FAM - Monthly Report
Published changes to Volume 9 (Visas) of the FAM over the past month include the following:
Amended guidance to advise consular officers that they may correspond directly with the applicant's attorney of record.
Parenthetically, under the rules of FAM construction, use of the auxiliary verb "may" signals that the step expressed by the action verb (in this case, correspondence with the applicant's attorney) is fully discretionary, as opposed to mandatory or even recommended.
Attorneys and Affidavits of Support
A new FAM update indirectly underlines the type of contribution that conscientious attorneys can make to the immigrant visa application process. Per this update: "Assembling the documents is the sponsor's responsibility. If Form I-864, Affidavit of Support under Section 213A of the Act, and supporting documents are incomplete or poorly assembled, the post must refuse the applicant under INA 221(g) and return the entire package to the applicant with a copy of the checklist."
Blanket L Cases
Restatement of the responsibility of consular officers in Blanket L cases. Since the individual beneficiaries of blanket petitions are not named in the petition, their eligibility for L status is not examined by DHS. Consequently, consular officers are generally responsible for verifying the qualifications of alien applicants for Blanket L cases.
Confidentiality of Visa Records
Amended guidance to advise consular officers that they have no discretion to deviate from the following directives:
Release of visa records to applicants: Consular posts must not release original documents from visa records, or even allow the applicant to inspect visa records, except for civil documents.
Release of visa records to foreign courts: Consular posts must obtain the express approval of the Consular Affairs bureau for the release of certified copies of visa records to foreign courts.
Consular posts must obtain the express approval of the Consular Affairs bureau for the release of information from visa records to foreign law enforcement authorities.
Emphasis added to existing guidance, urging consular officers to "promptly answer inquiries from Members of Congress." "Promptly" in this context means "within 3 working days." Consular Officers are encouraged to contact a dedicated email address VisaNet@state.gov with any questions on how to respond to specific Congressional inquires.
In this same regard, the Department has published an updated paradigm telegram response to Congressional inquires.
The FAM has previously indicated that the vacating of a conviction on a writ of coram nobis eradicates the conviction for immigration purpose. The FAM now provides a definition of the legal term: "Writ of coram nobis, from Latin 'in our presence' an order by a court of appeal to a court which rendered judgment requiring that trial court to consider facts not on the trial record which might have resulted in a different judgment if known at the time of the trial."
Crimes involving Moral Turpitude
A revised definition of "Voluntary Manslaughter" is given. Per this definition, voluntary manslaughter involves "an action that was sufficient to incite an "ordinary person" to "sudden and intense passion "such that s/he loses self control." An example provided to consular officers of the kind of situation which could result in voluntary manslaughter is "when a person finds his/her spouse in bed with another person."
Death of Visa Petitioner
Information provided to consular officers relating to how certain family members may become substitute sponsors if a visa petitioner dies following approval of the visa petition, but before the beneficiary obtains his or her permanent residence.
Clarification of visa requirements: Guam is a part of the United States, meaning that foreign nationals traveling to Guam must possess a valid U.S. visa unless they qualify for the special Guam Visa Waiver program.
Parenthetically, a list of countries participating in the GVP can be found here:
I-864 (Affidavit of Support)
Income Tax Returns: Restatement of the requirement that each sponsor submit a copy of his or her Federal income tax returns for the most recent tax year with the Form I-864 Affidavit of Support. Per this FAM update: The failure to file a required income tax return with the IRS does not excuse the sponsor from the requirement to submit tax returns as "supporting documents" with the I-864.
Employment and Assets: The FAM update also clarifies that adjudicating officers should generally request additional evidence of the sponsor's employment and pay statements only if the information on the Affidavit of Support and tax return fail to establish that the sponsor's current income meets or exceeds the applicable poverty guidelines. The update likewise reminds consular officers that sponsors are not required to submit evidence of assets, if income alone is sufficient to meet the minimum Federal poverty guidelines income requirement.
"Income": This update also clarifies the term "income" for Affidavit of Support purposes, as meaning the total unadjusted income as shown on the tax return, before deductions. "Total unadjusted income" means both salary and monetary gains from any other source.
Domicile: Posts are reminded that if the petitioner cannot satisfy the domicile requirement, he or she cannot legally qualify as a "sponsor" for Affidavit of Support purposes; in such event, a joint sponsor cannot be accepted and the applicant must be deemed inadmissible on Public Charge grounds.
Kentucky Service Center
New information on the transmission of approved petitions from USCIS to consular posts via the Kentucky Service Center (KCC). According to this guidance, USCIS sends all approved petitions to the KCC for transmittal to post. The KCC scans and e-mails the petition approvals to posts within 48 hours of receipt. The KCC normally transmits only the approved Form I-129, Petition for a Nonimmigrant Worker, and retains the complete file. Posts may request the entire file or portions of the file by contacting the KCC by email.
L-1 Visa Applications
Restatement of the "Reason to Believe" Standard of Adjudication:
Restatement of the Petition Revocation Rule: "Posts should refer cases to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS. You must have specific evidence of a requirement for automatic revocation, lack of qualification on the part of the beneficiary, misrepresentation in the petition process, or of previously unknown facts, which might alter USCIS' finding, before requesting approval of a review of the Form I-129, Petition for a Nonimmigrant Worker."
L and H Time Limits
Reminder to consular officers that "many L and H aliens are subject to time limits, or to the two-year foreign residence requirement for former exchange visitors." Recent anecdotal evidence from the field suggests that this reminder is timely.
A new FAM provision clarifies that a conviction by court-martial has the same force and effect as a conviction by a civil court. NOTE TO ATTORNEYS: This new provision underlines the need to stick to your guns when a client refuses to indicate military convictions on visa application forms in the mistaken belief that these convictions somehow lack the same moral impact as civil convictions.
A new FAM update highlight's the Department's request to "broadly apply" the ground of inadmissibility set forth in INA 212(a)(3)(A) to anyone affiliated with organized crime in the Former Soviet Union. As a reminder, 212(a)(3)(A) applies to a foreign nationals who "seek to enter the US to engage in unlawful activity."
Of particular interest is the clarification that this ground if inadmissibility may be applied not only to members of an organized crime family, but also to individuals who have "extensive business relationships" with these families. Wow - not only the criminals, but also those who do business with them. NOTE TO OUR COLLEAGUES: Given the broad application of this provision, attorneys representing members of organized-crime families could validly be refused visas due to their professional affiliations with their clients.
New encouragement to consular officers to give finality to cases in which visa applicants are likely to become primarily dependent on the U.S. government for subsistence after admission to the United States. According to the new FAM update: "Applicants who are not likely to overcome the public charge provision even after the presentation of additional evidence should be refused under 212(a)(4) instead of 221(g)."
Visa-issuing Office Symbols
Updated list of the symbols for visa-issuing offices used on immigrant
(IV) and nonimmigrant visa (NIV) reports.
Guidance emphasizing that a visa refusal under INA 214(b) is different from a visa refusal under INA 212(a), in that the former "does NOT constitute a finding of permanent inadmissibility." The new guidance continues: "A refusal under 214(b) does not mean that the applicant is permanently inadmissible to the United States, it simply means that they have not proven that they meet the requirements of a particular NIV classification."
Are You Smarter Than A Junior Consular Officer?
1) You've just been assigned to adjudicate visa applications in Bern; what are the four official languages of Switzerland that you may encounter?
2) True or false: A spouse who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay available to H-1B nonimmigrants. 3) In which country is a visa applicant located if she pays for her visa application fee in Rs?
4) True or false: Both L-1 nonimmigrants and H-1B nonimmigrants may be authorized to perform part-time services only.
5) An applicant who has been issued an SB-1 visa is:
6) True or false: A foreign national resident abroad may not request visa records under the Freedom of Information Act.
7) Name the only foreign government currently entitled, on a case-by-case basis, to information from the Department of State source visa lookout records.
8) True or false: The beneficiary of an L-1 petition must be coming for employment at a pre-existing, U.S.-based office of the employer.
9) Which three nonimmigrant visa categories has Congress expressly excluded from the statutory presumption of immigrant intent contained in INA 214(b)?
10. Which U.S. president was our nation's first ambassador to the Netherlands? (Hint: he was also our first Vice President.)
Top Ten Visa Wait Times at U.S. Consular Posts, October 2009
In October, Havana smashed through the 800 level and made a strong bid to reach visa wait times of 900 days. Podgorica, which led European wait times in September, made its maiden entrance into the Top Ten list since initiating visa services three months ago. Despite all this: the overwhelming majority of posts report visa wait times of 30 days or under, evidencing just how streamlined and efficient the process has become for most visa applicants.
The Americas (excluding Cuba) Venezuela/Caracas (245 days)
Answers to "Are You Smarter Than A Junior Consular Officer?"
1. German, French, Italian, and Romansch.
9. H-1B, L and V
10. John Adams
Quote of the Corner
"As for me, I miss her badly and hope she comes back. She gave consular work a feeling of vitality and urgency that it often misses."
"kateofthespirits" on Madam le Consul
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