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Consular Corner: December 2009

by Liam Schwartz

Happy 2010!

Warm wishes from Consular Corner for a happy and healthy New Year!

A special thanks to the many consular officers and immigration law professionals who contributed over the past year to making the Consular Corner Facebook page such a vibrant and dynamic community.

Wishing all of you a wonderful 2010!

A Positive Visa Experience for Foreign Students

Congratulations to Assistant Secretary Jacobs, whose efforts to create "a positive visa experience" for foreign students are at the root of the recent increases in foreign student attendance at US colleges and universities.

New FAM guidance underlines how serious the Department is in its campaign to improve and streamline the issuance of visas to foreign students.

Knowledge of English - No Second Guessing

Consular officers are instructed not to second guess a school's determination that the applicant's knowledge of English is sufficient for the intended course of studies:

"If a school has admitted an applicant on the basis of the applicant's TOEFL or other English language test scores, the officer should not reevaluate the school's decision, even if the applicant seems to know less English than the TOEFL score indicates, unless the officer suspects the applicant obtained the results through fraud." (9 FAM 41.61 N5.1 (1))

Community College Welcome Mat

Assistant Secretary Jacob's efforts have including spreading a large welcome mat for foreign students interested in studying in America's community colleges.

Indeed, new guidance provides that bigger is not necessarily better in the context of student visa applications:

"Which school a student chooses is not nearly as important as why he or she chooses it. A plan that includes initial attendance at a community college or English language program, and then a transfer to a four-year college is acceptable and is becoming the norm. While consular officers may take into consideration the usefulness of a degree from a lesser-known university (or from any university) in the local context, attendance at a lesser-known
College or university is not, in itself, a ground in ineligibility and applicants cannot be refused a visa for this reason." (9 FAM 41.61 N7.2)

Intimidating Interviews

The Department's Customer Service Statement has always included the following pledge:

"We promise to you, the visa applicant, that we will remember that, to you, a visa interview may be a new or intimidating experience and that you may be nervous."

The Department now takes this commitment one step further by urging Consular Officers to bear in mind how intimidating a visa interview can be to some young applicants:

"Many students do well on the TOEFL, but seem to forget their English when confronted with a face-to-face interview with a consular officer." (9 FAM 41.61 N5.1 (1))

Department of State, New Year's Eve, 1999

Ten years ago, the State Department was gripped by the prospect of an imminent worldwide meltdown of computer systems at the stroke of midnight, resulting from the Y2K bug. According to the Department, the global community was "likely to experience varying degrees of Y2K-related failures in every sector, in every region, and at every economic level."

The Department's frenetic actions in the run-up to New Year's Eve 1999 included the following:

(1) Setting up "Y2K evacuation teams" to deal with the aftermath of possible terrorist attacks on U.S. citizens abroad amidst the expected chaos of computer system meltdown.
(2) Posting additional guards at the State Department's domestic facilities "until it's determined that no life, safety, access or security concerns were created by the Y2K event."
(3) Placing Y2K-related teams of diplomatic security agents, security engineers and technicians on standby status in Washington and at regional hubs overseas to resolve any embassy security problems.
(4) Authorizing the voluntary departure of eligible family members and employees who could be spared from duty from designated U.S. embassies.
(5) Warning U.S. citizens of potentially catastrophic failures in transportation systems, energy grids, financial institutions, medical care and telecommunications around the world. The Department further advised that embassies and consulates would be unable to provide food, water and shelter to the millions of U.S. citizens abroad.

After all the intense focus and preparation to counter this supposed software bug, there happily was no computer meltdown as the year 2000 began. It's too bad the rest of the decade didn't run so smoothly: five months later Mohamed Atta was issued a B-1/B-2 visa at the U.S. Embassy in Berlin, Germany. Regrettably, there were significant terrorist "successes;" but the actions taken and lessons learned from the Y2K threat doubtlessly saved lives as we responded to the terrorist threat over this past decade.

Smart Power and Tanks

In her nomination hearings, Hillary Clinton called for the use of "smart power" in order to achieve "the restoration of American diplomatic leadership in the world."

Former Secretary of State Colin Powell was no stranger to "smart power" himself. Recalling his days as commander of the Fifth Corps in Germany in the 198os, Secretary Powell said:

"There was the day my commanders came in and said, 'The Greens have just gone onto our tank-driving range and they have planted trees all over the place so we can't drive our tanks anymore.'

I said, 'What are you going to do?'

'We're going to run over the trees.'

'No, no, no, you're not. You do not run over the trees in Germany. This is not a time for overwhelming force. This is a time for smart power, decisive power.'

So we dug up all the trees, brought them to our housing area, replanted them, and then invited the Greens to come to our ceremony of dedication."

This end result of this exercise was exactly what "smart power" is all about: the creation of long-lasting friendship. Earlier this month there was a ceremony honoring Colin Powell at the State Department. Whom did Powell invite to the ceremony? Joschka Fischer, the head of the German Greens who planted the trees to block Powell's tanks on that day twenty five years ago.

News Years Prayer

Bless our government officials who rightly use visa policy as an element of "smart power" with the ability to distinguish between Colin Powell's tanks and trees.

In 2009, our government instructed Embassy Tegucigalpa to deprive nonimmigrant visa services to the 7,800,000 citizens of Honduras for more than 14 weeks, as a means of putting pressure on a small number of coup leaders in that country.

It's hard to understand how the thousands upon thousands of missed family visits, school admissions, cultural exchanges, church missions, business conferences and work assignments contributed to American diplomatic leadership. This was not "Smart Power" - it was just power. Let's hope that when faced by similar crises in the future, the government will strive to emulate Powell's "win-win" approach to problem-solving.

Podgorica: Thanks and Congratulations

Almost as soon as Embassy Podgorica in Montenegro introduced nonimmigrant visa services in July of this year, it began experiencing some of the longest visa wait times in Europe. As of this writing, Podgorica reports wait times in excess of 80 days, which are among the longest in the U.S. consular world.

What's going on?

A November 2009 inspection report by the State Department's Office of the Inspector General ("OIG") sheds light on the root causes of these lengthy wait times. Per the OIG report, the factors at work include the following:

Workspace at Embassy Podgorica is "substandard and overcrowded." This situation will remain unchanged until at least 2023 (14 years from now), when a new embassy compound is scheduled to be completed.

The consular section is housed in a "cramped, under-resourced chancery." The chancery, which dates from 1955, is marred by incomplete maintenance projects that present safety hazards. The substandard facilities even include a women's bathroom that doubles as a storeroom. All in all, the chancery has a "general air of neglect that provides a poor context for U.S. diplomacy."

The consular section has only one American officer, who splits his time between assignments in both the consular and political sections of the Embassy. A small consular waiting room was recently added, but this seats only "a few" people. There is only one window for interviews and other consular services.

The OIG report concludes: "Impediments affect performance." Given these extremely tough conditions, Embassy Podgorica can only be thanked and congratulated for its success in offering even limited nonimmigrant visa services. Until conditions improve, Montenegrin nationals may also apply for visas at Embassy Belgrade (a bit of a trip, but reported visa wait times of only one [1!] day).

Port of Spain: Harsh Criticism

Q: How much reliance can the public actually place in an OIG inspection report such as that for Podgorica?

A: Tons, actually. Take, for example, the scathing criticism of consular management at Embassy Port of Spain in Trinidad and Tobago, as recently reported by the OIG:

"Consular section management currently teaches nonimmigrant visa officers to refuse visas to certain categories of applicants who should not be refused under visa law."

The implications of this criticism are massive. The FAM instructs consular officers as follows: "Your primary responsibility in visa adjudication is to carry out the requirements of U.S. immigration law" (9 FAM 41.53 N28). The OIG reports that consular officers in Port of Spain are taught to ignore this responsibility and to instead deny visas to visa applicants who are otherwise eligible for visas under U.S. law.

According to the OIG report, visa officers are instructed to profile whole classes of individuals as poor visa applicants. Per the OIG report, these classes include:

Applicants starting new jobs. "Of particular sensitivity are routine refusals for newly hired employees of known local and American companies going to the United States for training. These knee-jerk refusals have damaged relations with those companies, many of which do daily business with the Embassy."

Young applicants. "The consular section also routinely refused youthful applicants who have - with their families - held U.S. visas, visited the United States, and complied with the terms of their visas all their lives, but upon reaching maturity are suddenly viewed as intending immigrants for no apparent reason."

Pregnant Women. "The OIG also questions the Embassy's handling of applicants who give birth or might give birth while in the United States. The Immigration and Nationality Act does not require ineligibility for tourist visas because an applicant has given birth to U.S. citizen children. The fact that such children might petition for immigrant status for the parent upon reaching age 21, if they should choose to do so, of they are domiciled in the United States, and if the parent wants to immigrate is so remote as to be, in nearly all cases, a non-starter."

The overwhelming majority of consular officers don't resort to this kind of improper profiling. Still, the OIG report on Port of Spain is an important reminder of the need for officers to remain ever vigilant against the temptation of doing so.

Approval Notices: No Longer Required (Most of the Time)

Throughout 2009, the Department has increasingly focused its guidance on the central role which the Petition Information Management Service ("PIMS") plays in the paperless visa application process. Posts were first told to use the PIMS record to verify petition approval. They were then instructed that PIMS -- and only PIMS - serves as evidence of an approved petition.

Still, some consular posts have been insisting that visa applicants still present original I-797 Approval Notices as part of their visa applications.

New guidance includes the kind of simple language that should mean the end of this requirement at all U.S. consular posts:

"You should no longer require that an approved Form I-129, petition for a Nonimmigrant Worker, or evidence that the H petition has been approved (a form I-797, Notice of Action) be presented by an applicant seeking an H visa."
(9 FAM 41.53 N8.2)

NOTE: According to the FAM's rules of construction, the word "should" is used to advise that a given action is preferred - but not mandatory. (2 FAH-1 H-112.3). Thus, consular managers retain the discretion to require an original Approval Notice as may be deemed necessary in a given case (for example in the scope of a fraud investigation).

Changes to 9 FAM - Monthly Report

Further updates to 9 FAM (Visas) of the Foreign Affairs Manual this month include:
(a) new requirements for the approval of Returning Resident visas;
(b) a heads-up on the imminent demise of a (heretofore) sine qua non for student visas;
(c) new duties in adjudicating H-1B cases;
(d) information on lots of new restrictions on H-2 visa processing; and
(e) a large and surprising dose of optimism from State.

Iraqi and Afghan Translators/Interpreters (9 FAM 42.32)

New guidance clarifies the eligibility for criteria special immigrant translator or interpreter status, available for nationals of Iraq or Afghanistan who have provided service to the U.S. Armed Forces or Chiefs of Mission at overseas posts. The guidance also notes that applicants for this status are exempt from the public charge ground of inadmissibility under INA 212(a)(4).

Religious Workers (9 FAM 41.58)

Questioning Approved Petitions

Consular officers are advised that DHS, by establishing a preliminary petition process, has assumed responsibility for determining whether a visa applicant meets the required qualifications for R status. As such, consular officers do not have the authority to question the approval of R petitions without specific evidence relating to the beneficiary's possible ineligibility for this status. Consular officers are asked to refer approved R petitions to DHS for reconsideration "sparingly." The reason: Department policy seeks to "avoid inconveniencing bona fide petitioners and beneficiaries."

Validity Period of R Visas

Per a new FAM provision, the maximum validity of an R-1 visa is five (5) years. Holders of R-1 visas may be admitted to the United States for an initial period of 30 months; extensions of stay may be granted up to an additional 30 months.

Officers may issue R visas to qualified applicants up to 90 days in advance of the start-date as noted on the Form I-797 Approval Notice. That said, officers are directed to inform applicants that they may not actually enter the United States prior to the effective date of the R-1 Approval Notice.

Returning Residents (9 FAM 42.22)

In a change to the way in which applications for SB-1 (Returning Resident) visas are processed, posts are advised that SB-1 visa approvals must be confirmed by consular management. Specifically, a consular manager officer must approve the interviewing consular officer's determination that an applicant has provided sufficient justification for the inability to return to the United States within the travel validity of his or her Green Card. Absent this approval from management, the SB-1 visa may not be issued.

Students and Exchange Visitors (9 FAM 41.61, 9 FAM 41.62)

J-1 Student Employment

Clarification relating to J-1 employment: An exchange visitor student can work only up to 20 hours of week while school is in session, and must pursue a full course of study concurrently.

SEVIS Fee and 221(g)

New guidance directs consular officers that J-1 applications presented without the required SEVIS fee should be refused under INA 221(g).Payment of the fee is to be verified through the SEVIS report located in the Consular Consolidated Database (CCD).

New Student/Exchange Visitor Visa Center

The Consular Affairs Bureau has created the "Student/Exchange Visitor Visa Center" for the purpose of responding to inquiries received from school and program administrators in connection with individual student and exchange visitor cases. The Student/Exchange Visitor Visa Center can be reached via e-mail at

The Future: Paperless Student Visa Application Process

Forms I-20 and DS-2019 have been the sine qua non for issuance of F-1 and J-1 visas, respectively. The times they are a-changin', and in an update to the FAM, the Department of State gives notice of a further step towards paperless visa adjudication through the imminent removal of these paper forms from the student visa application process. Per this update, a new version of SEVIS to be released by the fall of 2010 will no longer require F-1 and J-1 visa applicants to present Forms I-20 and DS-2019.

The Present: Return Form DS-2019

Until the student visa application does go paperless, a FAM update reminds consular officers to return completed Form DS-2019 (Certificate of Eligibility for Exchange Visitor Status) together with all supporting financial evidence to the successful J-1 visa applicant so that he or she can present this documentation to the CBP officer at the port of entry.

F-2 and M-2 Dependents

Consular officers are reminded that each and every F-2 or M-2 dependent spouse or child is required to have a separate Form I-20 and their own unique SEVIS ID number. F-2 and M-2 visas may not be issued on the basis of the principal's Form I-20. That said, F-2 and M-2 dependents are not required to pay a separate SEVIS fee.

F-2 Studies

The Department advises consular officers that a spouse in F-2 status may participate in avocational or recreational study programs only. Should the spouse wish to enroll in a full-time course of study, he or she will need to seek to change status to F-1.

Temporary Workers (9 FAM 41.53)

Extensive updates to the FAM Notes for H Temporary Workers have been made. These updates include the following new guidance:

Effect of H-2A Labor Certifications

Consular officers are advised that revocation of the underlying H-2A labor certification by the Department of Labor results in automatic revocation of the underlying petition approved by DHS. An H-2A worker may remain in the United States for up to 30 days following such revocation, for the purpose of departure or extension of status via transfer to a new employer.

Unnamed Petition Beneficiaries- Individual Visa Applicants

Visa applications filed pursuant to USCIS approval of a petition with unnamed beneficiaries must include evidence that the applicant meets the labor certification's minimum employment and job training requirements.

Legal Rights of H Visa Applicants

New FAM guidance is aimed at ensuring that all H visa applicants are aware of their rights under American immigration and labor laws.

This guidance reflects the depth and breadth of the pool of visa applicants who are required by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 to be made aware of their legal rights under Federal immigration, labor, and employment laws.

In a literal sense, consular officers are required to confirm that an applicant for an H classification visa has received, read, and understood a pamphlet prepared by the Department of State that discusses "procedural issues, legal rights, and available legal resources concerning the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States." If the H visa applicant has not received the pamphlet, the consular officer is enjoined to provide an "oral disclosure" that elucidates such topics as "the availability of services for victims of human trafficking and worker exploitation in the United States, including victim services complaint hotlines."

H-1B-Dependent Employers and TARP

Consular officers are informed that employers which have received funds through the Troubled Asset Relief Program (TARP) are considered "H-1B-dependent employers" and thus subject to additional restrictions on the hiring of H-1B workers. Among these restrictions is the need to make additional attestations on the Labor Condition Application (LCA) including, inter alia, they have taken good faith steps to recruit U.S. workers for the offered H-1B position.

The new FAM guidance directs consular officers as follows:

"Until further notice, as part of the process of determining the H-1B qualifications of an applicant who has not been working for the same employer in the United States or another NIV classification for which employment was authorized, posts must check whether the most recent treasury list of TARP funding recipients includes the H-1B petitioner."

If the employer is so listed, posts must return the petition to USCIS for revocation if the accompanying LCA does not contain the appropriate H-1B-dependent employer attestations.

H-1B and Bless the Optimists

State Department employees are apparently among the most optimistic people in America. This optimism is one of the reasons why the Department is largely acknowledged as one of the best places to work in the federal government.

This optimism sometimes leads to guidance which seems a bit too, umm, optimistic. It is only in this context that the updated FAM provision relating to H-1B numerical limitations can be understood. Although this provision (9 FAM 41.43 N24) was ostensibly updated only a few weeks ago, it advises consular officers as follows:

"Given the unusually-low United States unemployment rate and an unexpectedly-high demand by employers for technology specialists, the numerical limitations on H-1B nonimmigrants have been in a state of flux in recent years."

H-2 Temporary Worker Exit Pilot Program

A timely update offers information on the December 2009 launch by DHS of a Temporary Worker Visa Exit Program. Under the pilot program, H-2A and H-2B workers admitted at the San Luis or Douglas ports of entry in Arizona must also depart through one of the two designated ports. To verify their final departure, the workers will be required to scan their visa and their fingerprints and return their I-94 forms at an exit kiosk located at the port of departure.

Prohibited Fees for H-2A or H-2B Employment

The Department informs posts that DHS may deny or revoke an approved H-2A or H-2B petition if it learns that the worker was required to pay a fee as a condition for obtaining the H-2 employment. Consular officers are instructed to return the petition to DHS for reconsideration if the officer suspects that the worker has paid this kind of prohibited fee.

H-2A and H-2B Program Participating Countries

Updates are provided relating to H-2A and H-2B program "participating countries," relating to one of the key areas of recent reforms to these visa classifications. In the scope of these reforms, DHS now limits the approval of such petitions to nationals of countries designated as H-2A or H-2B program participants. The FAM update provides a list of the 28 countries that have been so designated.

A further update informs consular officers that a national from a non-participating country may still be the beneficiary of an approved H-2 petition if DHS determines that it is in the U.S. interest for the petition to be approved. When encountering such a case, officers are instructed to presume that DHS has approved the national-interest exception -- and accordingly not refuse an H-2 visa based solely on the beneficiary's nationality.

Are You Smarter Than A Junior Consular Officer?

1) True or false: For purposes of calculating the period of physical presence required for transmission of U.S. citizenship to a child born abroad, a naturalized citizen may count any time he or she spent in the United States - including any time spent as an illegal alien.

2) What is the definitive record of J-1 student visa eligibility?
(a) Form DS-2019
(b) PIMS

3) An F-1 visa applicant has been identified by an alert Consular Officer as a STEM student. What does this signal about the applicant?

4) Name two of the five nonimmigrant classifications in which the principal
alien's spouse is not entitled to derivative nonimmigrant classification.

5) The maximum number of Iraqis or Afghanis who may be provided special immigrant translator or interpreter status during any fiscal year is:
(a) 50
(b) 100
(c) 500
(d) 1,000
(e) 5,000

6) What percent of U.S. visa applications in Saudi Arabia are reviewed by DHS?
(a) 5%
(b) 10%
(c) 25%
(d) 50%
(e) 100%

7) Approximately how many consular officer positions are there in the Foreign Service?
(a) 500
(b) 1,000
(c) 1,500
(d) 2,500
(e) 5,000

8) Which country's citizens can travel to the most countries and territories without a visa?
(a) Denmark
(b) Dominica
(c) Germany
(d) Turkey
(e) United States

9) A Green Card holder is the subject of a final order of deportation. Does this mean the end of his or her legal permanent resident status?

10) This U.S. Consul General in Ecuador, a caricaturist by profession, is credited with creating the American image of Santa Clause as a chubby fellow in a red suit. Who was this Consul General?

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

A decade ago, the State Department announced the implementation of an expedited visa processing for certain qualified Cuban nationals in Cuba. According to the announcement (99 State 90406) these new measures were "designed to promote people-to-people contact between the United States and Cuba, particularly in the educational, cultural, scientific, athletic, professional and religious areas." The announcement includes a Q&A on the new meaures, including the following:

"Q: How long will it take a Cuban visa applicant in Cuba to get a visa under the new procedures?

A: It should take approximately ten working days."

Ten years later, it takes a Cuban visa applicant in Cuba nearly 900 days to get a visa. There obviously must be other concerns of greater importance than people-to-people contact in the educational, cultural, scientific, athletic, professional and religious areas.




Consular Post

Visa Wait Time

Increase/decrease from Last Month

Top 10 Position Last Month



Havana (US Interests Section)

893 days

+ 21 days





270 days

No change



Saudi Arabia


91 days

- 5 days



Saudi Arabia


87 days

- 23 days





82 days

+ 4 days





63 days

+ 3 days





56 days

+ 25 days

New listing

8 (tie)



45 days

+ 5 days

9 (tie)

8 (tie)



45 days

+ 41 days

New listing

8 (tie)


Buenos Aires

45 days

+ 10 days


9 (tie)



42 days

No change


9 (tie)



42 days

No change

8 (tie)




40 days

+ 10 days

New listing


** Updated to December 3, 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       (270 days)
Middle East and North Africa              Saudi Arabia/Riyadh      (91 days)
Europe and Eurasia                            Montenegro/Podgorica   (82 days)
Africa                                                   Nigeria/Lagos              (45 days)
East Asia and Pacific                         China/Beijing                 (22 days)
Central and South Asia                      Uzbekistan/Tashkent     (17 days)

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

1) True. 7 FAM 1133.3-3

2) (c)

3) He or she is a science, technology, engineering or mathematics student.

4) B, C, D, K, and V

5) (a)

6) (e)

7) (c)

8) (a)

9) Yes. 9 FAM 42.22 N3.4

10) Thomas Nast

Quote of the Corner

"In most cultures, people promise to better themselves in the following year. Americans have inherited the tradition and even write down their New Year's resolutions. Whatever the resolution, most of them are broken or forgotten by February."

U.S. Embassy Vienna

About The Author

Liam Schwartz is a principal in Liam Schwartz & Associates, a corporate immigration and consular law firm. He can be reached on FaceBook, and at:

All rights reserved to the author.

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

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