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Consular Corner: February 2010

by Liam Schwartz

Ten Questions With: Shaila B. Manyam, Foreign Service Officer U.S. Embassy Port-au-Prince

Consular Corner is honored to present the following interview with Foreign Service Officer Shaila B. Manyam. Shortly after the earthquake in Haiti, Ms. Manyam volunteered to join the Department's disaster relief efforts. With the blessing of her supervisors, Ms. Manyam was kind enough to take a brief respite from her consular duties in Port-au-Prince to hold this interview on February 10, 2010. (Because a couple of weeks have passed, some of the details of the relief efforts are no longer fully up to date.)

Before rushing over to Haiti, Ms. Manyam was in the midst of her second foreign service assignment as Consul/Economic Officer at Embassy Tel-Aviv in Israel. Her first posting was as Embassy Press Attache and Spokesman in Port-au-Prince. A graduate of the London School of Economics and Political Science and of Smith College, Ms. Manyam joined the Foreign Service following a successful career in the private sector, where she worked as a marketing professional for firms such as DuPont and Ogilvy and Mather.

Courage, brains and patriotism. What a credit to the Department of State and to all of us as Americans!

Liam Schwartz: Tell us a little about the hours of thought and excitement leading to your decision to volunteer for temporary duty in Port-au-Prince.

Shaila B. Manyam: It was in fact, literally hours. As soon as we heard what happened, our first thought was how we could help. My first job in the Foreign Service was at the Embassy in Port-au-Prince and during my time there, I became very attached to the country and its people. I had the opportunity to work on rebuilding efforts and I speak the languages (French and Creole). To me, there was no way I couldn't go there. I wouldn't have felt right not going.

LS: What are the living conditions like for Foreign Service Officers there?

SBM: A large percentage of staff assigned to Port au Prince was affected directly by the earthquake. Many officers lost their homes and everything they own, so while they're not in the exact same situation as many of the Haitian people, they certainly are experiencing something similar. Right now, most are sleeping in their work spaces, friends' guest rooms or floors, or in tents pitched on the Embassy lawn - also because so many USG personnel are on the ground to help and we also need places to stay. But we are luckier than most in that we do have access to running potable water, electricity and food.

LS: Amid the destruction and deprivation there, a lot of locals are understandably looking for a way out. Can you describe the process for assisting American citizens and their family members to evacuate Haiti?

SBM: There were approximately 45,000 Amcits living in Haiti before the earthquake. We've been able to help over 15,000 evacuate, including some of the rescue personnel and concerned Amcit family members who came post-earthquake. The Embassy team works closely with the military, Haitian officials, ICE, CBP and NGOs to make evacuations happen. An American citizen with a passport just needs to show up at the airport and we will get him or her on the next available evacuation flight. Minor Amcits can travel with a green card holder or visa holder escort - one per child or group of children. It's a simple process where you clear Haitian immigration, get your passport swiped to get on the manifest - and wait for the next available flight. Milair runs on a space-available basis, so the number of passengers and frequency of available flights varies, but we've been able to get people out regularly. Charter flights to Santo Domingo started up late last week, so many are opting for those and then traveling on to other destinations from there.

LS: Are individuals holding appointments for IV interviews able to complete processing of their cases? Are there any procedures in place for expediting I-130 petitions, given the dire conditions that the relatives of American citizens are enduring in Haiti?

SBM: The Embassy reopened IV services on February 3rd - about two weeks post-earthquake. Right now, we are processing those who had appointments during the time we were not doing IVs as well as those with current appointments. We are encouraging Amcits and eligible LPRs with relatives in Haiti to start the petition process as soon as possible, if they have not already done so. We are in constant communication with the National Visa Center about priority cases. At the moment, we don't even have a backlog of IV cases, so we're able to process as we would normally.

LS: Is the Embassy currently processing any NIV applications? Once the NIV unit is back up to speed, how do you expect the reality on the ground in Haiti to affect officers' adjudications ?

SBM: With limited resources and so many people to help, we are focusing on immigrant visas and American Citizens Services. At this time, we are not open for NIV processing but hope to resume full services as soon as possible.

I don't think anyone can have gone through this and not expect that one of the biggest natural disasters in modern times would affect people. That said, the officers and local staff here are some of the most professional and resilient consular experts in the world, working under normally dire circumstances. They have ensured that everyone coming in the door gets a fair, courteous interview and treatment and that certainly will continue.

LS: You are working fatiguing 14-16 hour shifts; in addition, you are exposed to human suffering of a magnitude which most of us cannot even imagine. How do you cope with such stressful responsibilities?

SBM: I'm personally taking a lot of comfort in seeing so many of us "Haiti alums" return and in seeing the local staff. Nothing has made me happier than being able to run up the stairs of the Embassy and hug my former public diplomacy team, the drivers and so many of the amazing Haitians who keep this Embassy going. Knowing that you're not alone in feeling the way you do has been key, as have small signs of moves back to normalcy - like seeing the ladies who used to sell me fruit on the street two years ago back in business.

LS: You also deal with the daily lines of Haitian nationals seeking evacuation to the U.S., many with no other connection to our country other than the hope that America will take care of them and carry them away to safety. It's one thing to say "no" to applicants who aren't qualified for a visa, but it must be an entirely different encounter to turn down an individual who isn't qualified for USG-assisted evacuation. What's it like to make truly life-or-death decisions?

SBM: I'm seeing now exactly how challenging the role of a consular officer is, in that we have to manage our responsibility to the laws of the United States with sympathy for people who have been through so much horror in the last two weeks. Everyone here is working hard to ensure that every person in line - and that number was in the thousands when I first got here - gets to speak with a consular officer and is treated with the utmost courtesy and empathy. The Haitian people who come to us have heartbreaking stories about what they have been through and sometimes the most we can do is listen to them and ensure that they felt that they had an opportunity to be heard.

LS: There's been a lot of controversy in the press about rushed adoptions of Haitian children, apparently not all of whom are orphans. How is the Embassy looking out for these children's best interests, and how would you respond to criticism alleging that bureaucrats' efforts serve only to delay these victims' rescue?

SBM: Haiti is a sovereign nation, and we work with and respect their sovereignty, including their laws on adoption. Both the US Government, through the Embassy, and the Government of Haiti are working together to ensure that children remain protected. Unfortunately, trafficking of children has always been a problem here, and we need to continue to work together to ensure that children do not become victimized. It's especially difficult in these conditions to determine the status of separated or unaccompanied children, and part of protecting their welfare is ensuring that the fate of their parents and/or close relatives, as well as the circumstances of potential adoptive families, is thoroughly investigated, and that those who wish to adopt children have the proper authorization to do so.

LS: Have any experiences from your life prior to joining the Foreign Service proven helpful or even inspirational in your efforts to assist with this crisis response?

SBM: I'm not sure that anything really could have prepared me for this. Going through the events of 9/11/2001 firsthand when I lived in New York prior to joining the Foreign Service was probably the closest I have come to experiencing disaster of this magnitude, and probably was one of the reasons I felt so strongly about being on the ground to help if I could.

LS: Well before the earthquake hit, Haiti was known for its ineffective governance and troubled democratic tradition. Above and beyond the immediate, material impact that U.S. aid can have for individual Haitians, do you have any sense that it can also serve to advance American foreign policy there with regard to strengthening civil society and the democratic transfer of power?

SBM: I served in Haiti for two years (2006-2008) as the Embassy's spokesperson during my first tour. Our goal as a mission was to help the Government of Haiti reinforce and rebuild trust in its institutions during a particularly violent period in history when gangs had rule over the country. During my posting here, Haiti held three rounds of successful democratic elections and partnered with the United States, the UN and governments around the world to lay the foundations for a stronger system. The fact is, you still see those tools in place. Violence and gangs have not re-erupted to previous levels, despite the chaos. Even with catastrophic building collapses and the loss of many officials, there is still a functioning Government which is working with hundreds of partners to cope with the sheer magnitude of what has happened. It's a day-by-day struggle to deal with the aftermath and start the process of rebuilding, but I continue to have enormous hope for Haiti and its people. (Many thanks to former FSO Brian Bolton for his substantial contribution to this interview.)

Executive Capacity

Peter F. Drucker, the pioneer in social and management theory, commented that "the executive is, first of all, expected to get the right things done." Al Kaltman later observed that executives "don't hesitate to cut through red tape. Sometimes it's the only way to do the right thing quickly."

The following Q&A from the recent Town Hall Meeting for employees of the State Department is a wonderful example of a top government executive in action:

"QUESTION: My name is Jean Pierre-Louis and I am a Haitian American and a Foreign Service officer. And I'd like to thank you and Administrator Shah and also President Clinton for the work you've done in Haiti since the earthquake. I have lost some family members there. And when - soon after the earthquake, I went to my boss, Ambassador John Herbst - I'm his special assistant - and I said I'd like to - your permission, sir, to volunteer to go to Haiti if I may. And I was very appreciative that he said go ahead. Just to be sure, I checked with him again. (Laughter.) And he said absolutely, go ahead.

I volunteered. I'm a member of the stand-by - I'm a stand-by member of the Civilian Response Corps. Took my shots, four shots on a Monday, Martin Luther King birthday. I started my anti-malaria medications, and today I'm supposed to start my second dose, and I'm - but I'm not in Haiti, and I don't know that I'm close to going to Haiti. There are other options. I can take a leave of absence and go in my personal capacity. But I - my wife has told me she'd rather that I not do that because our children need milk. (Laughter.)

And I guess I'm asking - I know that we have done very good work in Haiti, and I'm appreciative of that, but I believe that I have skills that are relevant. I speak Haitian Creole, 5/4+ in State Department rankings, and I'm prepared to go.

SECRETARY CLINTON: Good. Well, we need you, and if you will come and give us all of your details, because we need you in a number of capacities. Our Embassy in Port-au-Prince is overwhelmed. The need is so great.

And some of you may know that the Embassy, because of the way it was built - and it certainly withstood the earthquake - it became a gathering place for Americans, Haitian Americans, people who were seeking help, seeking medical care, seeking a visa. We had surgeries being performed in the conference room. I mean, this was a truly heroic effort.

And we're going to start rotating some of the people out because, frankly, they've been under intense pressure, literally not sleeping for two weeks. We have a task force that we're working with, as you know. So if you will talk to Pat after we break, we will get you to Haiti. (Applause.)"

Musical Inadmissibility

The new DS-160 form presents visa applicants with many of the same questions relating to possible inadmissibility which they encountered in Form DS-156 (rest in peace) and still do in the current Form I-94W. As humorist Andy Fite notes, these questions can be perceived as a bit odd by the public; Fite's amusing musical tour of these questions can be accessed here:

Changes to 9 FAM - Monthly Report

Updates to 9 FAM (Visas) of the Foreign Affairs Manual this month include proactive efforts to protect foreign nationals employed as servants in the homes of foreign diplomats. Updated guidance on HIV takes an unexpected twist and conjures up the panel physician's commitment to the Hippocratic Oath. And new instructions clarify when pregnant immigrant visa applicants must submit to chest x-rays and whether foreign minors can accrue periods of unlawful presence.

Child Soldiers (9 FAM 40.38)

Consular officers are advised to seek a security advisory opinion if they believe that a visa applicant has engaged in the recruitment of, or the use of, a child soldier at any time. The chapter had previously restricted this instruction to recruitment or use of child soldiers after October 3, 2008.

Conrad Waivers (9 FAM 40.222 N2.5)

The Department advises consular officers of an updated timeframe for Conrad waivers: A state Department of Public Health may now seek a waiver of the two-year foreign residence requirement for certain J-1 physicians who were admitted in, or acquired, J-1 status before September 30, 2012.

Exchange Teachers (9 FAM 41.62 N4.13)

Columbia has been added as the tenth country to a Pilot Program for Exchange Visitor Teachers. The other nine are Australia, Canada, New Zealand, South Africa, Spain, the UK, Ireland and Venezuela.

HIV Positive Applicants (9 FAM 42.66 N17)

The Department has added a new FAM section entitled "Applicants Suspected of Being HIV Positive by the Panel Physician." This guidance first reminds consular officers of the removal of HIV infection as a ground of ineligibility under INA 212(a)(1), but it then takes an unexpected twist:

"[F]or applicants who may benefit from being tested for HIV, the panel physician may counsel the applicant about HIV, and may administer and HIV serologic test, if the applicant consents to the testing. The panel physician must also inform the applicant that they do not have to be tested for HIV and that the results of the HIV serologic testing will be provided to the consular section processing his or her visa application."

It's crucial to keep in mind the title of this paragraph, as it's clearly not the consular officer who should be deciding which applicants "may benefit" from an HIV test. Perhaps what the FAM is (not very eloquently) trying to get at is that if an applicant shows up for his medical exam exhibiting signs that he may have HIV/AIDS, then it's the panel physician's ethical responsibility to suggest that he have an HIV test - irrespective of the immigration process.

In the same paragraph, we learn that if the panel physician does perform the HIV test, then the results will be provided to the consular section, presumably in the context of a consideration of a public charge inadmissibility.

Could be that we're reading too much into this. But it would seem that this guidance to the panel physician honors paragraph 3 of the "original" Hippocratic Oath, while simultaneously violating paragraph 8:

"3. I will prescribe regiments for the good of my patients according to my ability and my judgment and never do harm to anyone."

"8. All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal."

Personal Employees of Foreign Diplomats (9 FAM 41.22 N4)

The Department offers comprehensive, far-reaching new guidance regarding the employment of personal employees of foreign diplomats stationed in the US in the "A" or "G" visa categories.

Protecting Personal Employees

To its credit, the Department goes to great lengths to describe and highlight the protections available under the Fair Labor Standards Act ("FLSA") to personal employees of foreign diplomats. In this regard, officers are told that every A-3 or G-5 visa applicant must present a copy of the employment contract, in both English and (if necessary) a language understood by the applicant; this contract must be signed by both the applicant and the employer.

To ensure that the submitted employment contract is actually meaningful, the Department's new guidance instructs on the following mandatory contractual provisions:

  1. Description of work to be performed by the personal employee.
  2. Commitment that the personal employee will work only for the employer who signs the contract.
  3. Statement of anticipated work hours per week, with information on days off, sick leave and vacations.
  4. Description of hourly wage, ensuring that it exceeds the prevailing wage or government minimum wage levels, and providing for overtime wages.
  5. Commitment to provide transportation for the personal employee to and from the United States.
  6. Agreement by the employer to abide by all Federal, state and local laws.
Maintaining Employment Contract/Maintaining Legal Status The Department - in no uncertain terms - links maintenance of the terms of the employment contract with maintenance of lawful status. Per the new guidance:

"Do not issue the visa unless you can reasonably conclude that the employer will in fact provide the employee with the required wages and working conditions."

This and more: The Department suggests to the adjudicating officer that he or she may presume the applicant is NOT eligible for a A-3 or G-5 visa - and should according deny the visa application - if any of the following is the case:

  1. The employer's diplomatic rank is less than that of Minister.
  2. The employer has had previous instances of non-compliance with contracts with A-3 or G-5 employees.
  3. The employer has a pattern of employee disappearance or credible abuse allegations.
Kudos to the Department for so proactively underlining the need to afford maximum protection under our laws to the foreign national housekeepers, gardeners, child-care workers and other personal employees of foreign diplomats.

Pregnant Women and Mandatory Chest X-Rays (9 FAM 42.66 N11.2)

Updated guidance clarifies that the Center for Disease Control ("CDC") requires that pregnant women who are required to have a medical examination in connection with the issuance of a visa must have a chest x-ray conducted, but only if they are examined in a country using the 2007 TB Technical Instructions. Parenthetically, a list of countries using these 2007 Instructions can be found on the CDC's website, here:

Religious Workers (9 FAM 42.32 [d][1])

The Department advises consular officers that the timeframe for special immigrant religious workers has been extended to September 30, 2012.

Unlawful Presence (9 FAM 40.92)

The FAM chapter dealing with foreign nationals unlawfully present in the U.S. has been updated with the following clarification regarding minors:

"Any period of time that an alien spends unlawfully in the United States while under the age of 18 would not count towards calculating the accrual of unlawful presence."

Are You Smarter Than A Junior Consular Officer?

1) Approximately how many nonimmigrant visa applications were refused by consular officers in FY 2009? (a) 90,000
(b) 900,000
(c) 1,900,000
(d) 2,900,000

2) The Centers for Disease Control recommends that the number of panel physicians be kept to a minimum. Per CDC's recommendation, how many immigrant visa applicants should there be per panel physician?

3) A visa applicant referring to himself informally as a "Bajan" is probably applying at which consular post? (a) Dhaka, Bangladesh
(b) Manama, Bahrain
(c) Nassau, Barbados
(d) Tijuana, Mexico

4) Can the 15 year old biological daughter of an E-2 dependant spouse (but not of the principal E-2 applicant) qualify for E-2 derivative status?

5) An individual presents himself to consular disaster relief team abroad, claiming to be a U.S. citizen and asking to be evacuated back home. His passport and other documents have been destroyed in the disaster; which database will a consular officer access in order to verify citizenship?

6) True or false: Consular officers may refuse an A-3 visa applicant under INA 214(b) who meets the qualifications for the status, but whom the consular officer believes is an intending immigrant.

7) Which agency within the Department of Homeland Security is responsible for sending special agents to US consular posts abroad to screen and vet visa applicants pursuant to the Visa Security Program?

8) Name two of the five states with the highest number of illegal immigrants in 2009.

9) What is the term of art for the date on which a petition to accord an individual immigrant status was filed?

10) What is the final date set for implementation of the DS-160 application form at all U.S. consular posts worldwide?

Top Ten Visa Wait Times at U.S. Consular Posts, February 2010*

Though perhaps counterintuitive, Sana'a wait times fell from 60 to 30 notwithstanding the ongoing threats by terrorist groups which led to the temporary closure of the Embassy in January of this year. Those 30 days shed in Yemen were gained in Venezuela, as Caracas rose to a 300-day wait time. Wait times in Dhahran, which faces security threats similar to Sana'a, soared by a whopping 52 days.

# Country US Consular Post Visa Wait Time Increase/Decrease from last month Top 10 Position Last Month
1 Cuba US Interests Section Havana 903 days - 1 days 1
2 Venezuela Caracas 300 days + 30 days 2
3 Saudi Arabia Dhahran 139 days + 52 days 4
4 Saudi Arabia Riyadh 99 days + 13 days 3
5 Montenegro Podgorica 72 days + 1 days 5
6 Mexico Tijuana 46 days - 6 days 7
7 Nigeria Lagos 45 days No change 8
8 (tie) Canada Toronto 42 days - 1 day 9 (tie)
8 (tie) Canada Montreal 42 days No change 9 (tie)
9 Germany Munich 38 days + 23 days New Listing
10 (tie) Argentina Buenos Aires 34 days +3 days New Listing
10 (tie) Nigeria Abuja 34 days +7 days New Listing
** Updated to February 4, 2010 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<p>
The Americas (excluding Cuba) Venezuela/Caracas (300 days)
Middle East and North Africa Saudi Arabia/Dhahran (139 days)
Europe and Eurasia Montenegro/Podgorica (72 days)
Africa Nigeria/Lagos (45 days)
East Asia and Pacific Singapore (25 days)
Central and South Asia India/New Delhi (14 days)

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

  1. (c)
  2. 2,000 applicants. 9 FAM 42.66 N2.2
  3. (c)
  4. Yes, absolutely. 9 FAM 40.1 N2.2
  5. PIERS
  6. False. 9 FAM 41.22 N4.5
  7. Immigration and Customs Enforcement (ICE)
  8. California, Texas, Florida, New York and Illinois (in that order).
  9. "Priority Date"
  10. April 30, 2010.

Quote of the Corner

"The FAM, however, doesn't prepare you for the feeling you get from saying, "No" and "I'm sorry" over and over. The FAM doesn't tell you how many bottles of water you will need to give people who've been standing in line for six hours. The FAM doesn't tell you how quickly you need to take the Power Bars you'd bought at Wal-Mart out of your backpack, just so you can give them to the people who are saying, "Please, j'ai faim." The FAM does not tell you whether you're permitted to shed a tear when you see the look of resignation in a person's eye after you've said, firmly, "I'm sorry, but you do not qualify." People just walked away, with their kids in one hand and their suitcase in the other. There were 500 more in the queue, waiting for their turn to come."

Paul Mayer, Consular Section Chief, U.S. Consulate General in Montreal

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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