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Consular Corner: April 2010

by Liam Schwartz


From our friend at "Muttering Behind the Hardline" on the burden and privilege of being a consular officer (reprinted with permission):

"For some consular officers, the opening of business -- whether in the visa or American Citizen Services units -- passes unnoticed with the summoning of the first customer. For me, that moment is always laden with palpable tension, expectation, significance. The stack of passports you grab on the way to the window represents far more than your daily chore. You are about to become a figure of seminal importance in the lives of at least a few of those anxious faces staring at you as you log on to your workstation and nervously arrange your ink stamps, a character with lines in the narrative of their lives. 'That the powerful play goes on, and you may contribute a verse,' whether you want to or not. It's an existential moment. Neither of you asked to be invited into each other's worlds; you are brought together by regulatory and exigential necessity, a process that requires you to asking probing questions, a process that requires your customer to expose himself to you, many times against his will.

There are fleeting moments in the course of nearly every day that slam this point home in sometimes very painful, jarring ways. I once had a 60-year-old man who'd never traveled anywhere approach my window. He looked very somber and spoke quietly. He wanted to visit his daughter, he said. I looked at his application. Marital status: married. Is your wife going with you, I asked. An innocent enough question. A deep breath and a quiver of the bottom lip that he tried desperately to control. She died last month, he managed to utter slowly. I always check the application to see whether the 'widowed' box is ticked, so that I can make a point of avoiding that question. But not everyone knows what 'widowed' means.

And now an uncomfortable moment. He's opened up a window into himself to a world of pain that he likely doesn't share with many in even his closest circle. And I've compelled him to open it to me. The expression for, 'You have my deep condolences' was a terrible struggle for me to master in his language, but I forced myself to master it for just these occasions. And practiced saying it with a measured, genuine expression that communicated that I was truly sincere. And I say it to him. And he responds by thanking me, commenting that what he really needs is time with his daughter and grandchildren, to get away from home for a time, a change of scenery.

That's only slightly less painful than interviewing a parent traveling to the U.S. to retrieve the body of a teenage son who died in a traffic accident while participating in an exchange program. Do you have the stomach for that interview? It isn't easy to have to gaze into the face of sheer anguish. You want to reach through the bullet-proof glass and embrace that father or mother. Sometimes I indulge myself by reaching out toward them and touching the window.

I often wonder what it must be like for an American citizen to come to the embassy destitute, in a situation so dire that the only way out is to supplicate to a bureaucrat. Granted, some have made a career out of bouncing off social safety nets. But for those who have genuinely found themselves in unexpected trouble, I can only imagine what a pride-swallowing exercise it could be. Small businessmen who came to a foreign country with the promise of a lucrative contract or partnership to find themselves suddenly swindled and penniless, feeling ashamed and then even more horrified to discover that they'll have to provide the names of three individuals in the U.S. who might be able to help before qualifying for a repatriation loan. Great. Not only have I been humiliated, but now I get to let a few family and friends in on the secret as well.

Or an American woman who married a foreigner and moved to his country only to discover that she's not the only wife, and the relationship becomes abusive. Her family and friends warned her, she said, but she was in love. Now they have kids, and he won't let them leave with her. What am I going to do? How will I get out?

But is there a better feeling than issuing a diversity visa to a qualified applicant? I don't think bigger smiles exist. At one post, I pulled money out of my own pocket to buy a stock of little American flags -- the type you wave at a parade -- to hand out to immigrant visa recipients. Got to be such a tradition that people asked where the flag was, if it wasn't included with the visa. What a privilege to be a participant in such a life-changing moment, the first step toward a horizon of what is for that second unlimited potential. The stress over the transition, adjusting to a new job, finding a place to live, new schools -- all of those worries are subsumed in that moment of sheer excitement.

How can you not get a charge out of watching a student bounce up and down in ecstasy, when you tell them they'll get their visa in 2-3 days by courier, and wish them good luck in university? Pure, unadulterated joy. You're sitting in a front row seat at the opening act of the great play of this person's adult life. And you have the honor of sharing that with them, confident that they'll gain an education and return to build a better life for themselves and country for their compatriots.

But you refuse a few students, too, because you just can't imagine any scenario in which they'd return. Terrible job prospects upon return, no compelling family ties, no vision of the future in their home country that they can articulate. And upon refusal, the barbed comments you sometimes endure of, 'You're ruining my life.' And they are quite possibly right. This was their Charlie-and-the Chocolate-Factory golden ticket. And you pray that you were right about that decision, because your face will leave an indelible image in the memory of that young man or woman as the single obstacle to the better life they imagined for themselves.

I don't know. Maybe I've got a melodramatic streak. But I sometimes get what I think must be a bit of a sense what it must be like for an obstetrician attending a birth or a doctor at a bedside as a patient succumbs to a terminal illness. Because for the individuals involved, some of the most pivotal moments of their lives happen before my very eyes and unfold based on a decision I must make.

What a burden and a privilege."

Does Architecture Matter?

The critical debate over the "message" projected by the architectural plans for the new London Embassy has been lively, as evidenced by the following excerpts:

"The Embassy in London is a vivid physical symbol of a powerful Empire striving to keep the outside world at bay."

"The 'Fortress America' approach to embassy design presents a public face that is an odd combination of power and paranoia."

"The new Embassy looks like a translucent Borg Cube surrounded by a moat." (For those who may not know their Star Trek, the Borg Cube is one of the most powerful vessels in the fleet of spaceships used by the Borg race to assimilate other species.)"

"Over the past decade, we have dotted the global landscape with embassies that resemble big box stores-only bigger, more isolated, and far more forbidding than any store designed to attract consumers or sell a product. Unfortunately, it is easier to install bollards than to devise ways to make such barriers unnecessary."

The above comments should be read in the context of this month's current events:

1. On April 21, 2010, the U.S. Embassy in India issued an urgent "India Security Update" warning of possibly imminent terrorist attacks in New Delhi.

2. On April 9, 2010, a bomb was lobbed over the fence of the U.S. Consulate General in Nuevo Laredo, Mexico.

3. On April 5, 2010, a terrorist attack just outside the U.S. Consulate in Peshawar, Pakistan killed eight people, including two consulate security guards.

If you wanted to look past what's happened in only the last few weeks, you'd find these recent examples: mobs attacking and setting alight the U.S. Embassy in Serbia; terrorists car-bombing our Embassy in Yemen; and fanatics firing a rocket-propelled grenade at our Embassy in Greece.

Doesn't all this make the debate on the importance of architecture kind of lopsided? While we should strive for correct diplomatic expression through architecture, isn't the safety of our diplomats an overriding concern?

Actually, not everyone agrees. Foreign Policy columnist Stephen Walt claims the following: "Trying to blast-proof everything may even be counterproductive, if the damage done to our global image is greater than the damage that violent radicals would do to a slightly less-fortified global presence."

Walt seems to be arguing that there is a tolerable number of casualties that we should permit terrorists to effect at our country's overseas installations. Although Walt is certainly entitled to his opinion about the esthetics of the design for the new chancery in London, it doesn't seem reasonable to compromise on the security of our diplomats merely for the sake of artistic correctness.

Parenthetically, for a tour of the new Embassy with Press Officer Emily Armitage, click here:

Flummoxed on Visas?

Excerpt from a recent State Department press briefing:

"Question: The answer, which has flummoxed me for years in dealing with this, is that response -

Mr. Crowley: We do not, Matt, want to keep you flummoxed.

Question: Thank you.

Mr. Crowley: That is a -

Question: Well, please, maybe you'll be - maybe I will - you will be able to unflummox me. (Laughter.)

Mr. Crowley: Is that a verb? (Laughter.)

Question: It is now."

We at Consular Corner undertake to do our utmost to deflummox our readers regarding the visa application process. :

Good Writing Does Matter

To its credit, the Bureau of Consular Affairs ("CA") has decided to grapple with a source of great frustration for "customers" of the Blanket L visa program. (Kudos to our friend Ken Rinzler for focusing minds at CA on this issue.)

Until now, the FAM has been largely silent on how L visas issued under an approved Blanket petition should be annotated when the beneficiary will be employed by a corporate entity other than the actual Blanket petitioner.

In addressing the Blanket L annotation issue, CA has made the following addition to 9 FAM 41.54 N14.6 (the new text appears in italics):

"If the visa is issued, the visa is annotated 'Blanket L-1' for the principal alien and 'Blanket L-2' for any derivative spouse of child. The annotation should also state the name of the company or subsidiary that the applicant will be primarily working for, even though that subsidiary, that is on the Form I-129-S, Nonimmigrant Petition Based on Blanket L Petition, may or may not be in Petition Information Management Service (PIMS)."

Say what? The use of the terms "company" and "subsidiary" is so careless -- and the sentence structure so convoluted -- that CA's commendable attempt at clarification falls short of its goal.

We imagine that the Department of State expects its consular officers and locally engaged staff to have sufficient good judgment and common sense to understand what the FAM is getting at, even if it isn't written very carefully. Accordingly, most consular officers will, after reading the new sentence several times over, draw the correct conclusion that they should annotate the visa with the actual employer after verifying that it is a qualifying parent, subsidiary, affiliate or branch of the petitioner listed in PIMS.

Consular officers shouldn't be compelled to read between the lines of new guidance in an attempt to understand what the author was trying to say. The better FAM guidance is written, the better CA is able to communicate with its consular officers. At the end of the day, the quality of its communications with the consular corps is what separates a "good" CA from a "great" CA.

Consular Processing Following the End of the HIV Ban

Following the January 4, 2010, elimination of HIV infection as a health-related inadmissibility, the Department of State (DOS) has published guidance to consular officers on processing immigrant visa (IV) applications submitted by HIV-positive foreign nationals.

According to the revisions to 9 FAM 40.11 N9.1-1, consular officers may, as of January 4, 2010, approve IV cases in which an HIV waiver has already been submitted to USCIS, even if this agency has not yet acted on the waiver request. The Department of State reminds consular officers to ensure that the record relating to the applicant's erstwhile HIV ineligibility is deleted from the Consular Lookout and Support System (CLASS) before the visa is actually issued.

The new FAM guidance further states that consular officers may reopen IV cases pertaining to foreign nationals whose applications were denied due to HIV infection. If the last refusal in the case occurred within the past year and the applicant's medical examination is still valid, then a consular officer may simply "overcome" the foreign national's refusal in the IV software, request deletion of the health-related inadmissibility from CLASS, and approve the case. If the medical report has expired, then the applicant will have to submit to a new examination by the post physician.

If, on the other hand, it has been more than a year since the last refusal in the case, then the foreign national must submit a new application form, pay the application fee, and undergo a new medical examination. As above, the consular officer should ensure that the HIV-related "hit" has been removed from CLASS before issuing the visa.

Another new paragraph in the FAM - 9 FAM 40.11 N9.1-2(c) - emphasizes that while foreign nationals with HIV are not medically ineligible, they still must demonstrate that they will not become public charges in the United States. Given the potentially high costs of treatment and the difficulty in obtaining insurance that covers the condition, consular officers are directed to carefully consider the totality of an HIV-positive immigrant's financial situation before proceeding to issuance of the visa. In the words of the new FAM guidance:

"Under section 212(a)(4) of the INA, an immigrant visa (IV) applicant must demonstrate that he or she has a means of support in the United states and that he or she, therefore, will not seek public financial assistance. It may be difficult for HIV-positive applicants to meet this requirement of the law because the cost of treating the illness can be very high and because the applicant may not be able to work or obtain medical insurance. You must be satisfied that the applicant has access to funds sufficient for his or her support."

This provision is particularly relevant in light of new FAM guidance issued in mid-January, according to which panel physicians may administer HIV tests to IV applicants whom the doctor "suspects" are HIV-positive, or to those "who may benefit from being tested for HIV" (9 FAM 42.66 N17). These parameters are not further defined in the FAM, but are apparently left to the professional judgment of the panel physician. In order to administer such a test, the doctor must obtain the applicant's permission after explaining that the test is optional and that the results will be shared with the consular post.

The new guidance continues the discussion of the applicability of 212(a)(4) with this reminder: "There is no waiver possible for this inadmissibility…"

The Department of State has issued comparatively little guidance regarding nonimmigrant visas following the sunset of the HIV ineligibility. For example, are the bearers of NIVs that were issued under the "streamlined HIV waiver" process still limited to 30-day stays in the United States? If an NIV was refused less than a year ago due to the applicant's HIV status and the individual did not obtain a waiver, can the case simply be reopened now? (Paragraph 11 of the Department of State's telegram on the HIV final rule might be read as indicating that the answer is yes.

One final reminder: Forms DS-160 and DS-230 include the following question: "Have you ever been afflicted with a communicable disease of public health significance or a dangerous physical or mental disorder, or ever been a drug user or addict?" As of January 4, 2010, HIV-positive foreign nationals no longer have to answer "yes" to this question based solely on their HIV status. Instead, applicants who are HIV-positive, and can otherwise answer in the negative to this question, may now simply answer "no."

Changes to 9 FAM - Monthly Report

The slowdown in published updates to 9 FAM (Visas) of the Foreign Affairs Manual continued this month. Available updates include TARP relief for busy consular officers and important protection for minors employed in the households of foreign diplomats.

CDC: Communicable Diseases of Public Health Interest (9 FAM 40.11 N9.1)

Following the elimination of HIV infection as a health-related inadmissibility, the Department provides an updated list of diseases currently defined by the Centers for Disease Control (CDC) as "communicable diseases of public health significance" for purposes of INA 212(a)(1)(A)(i).

H-1B and TARP (9 FAM 41.53 N8.2)

At the end of 2009, the Department informed Consular Officers that employers that 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. This notice provided the following, inter alia:

"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 TARP list did indeed include the H-1B petitioner, posts were instructed to return the petition to USCIS for revocation in the event the accompanying LCA did not contain the required H-1B-dependent employer attestations.

The need to continuously check the TARP list for H-1B visa petitioners was apparently a bit too much for already overworked posts: A new FAM section advises that the Kentucky Consular Center (KCC) will now review and monitor the TARP lists as they are published by the Treasury. Per this review, KCC will alert consular officers that a particular employer is on the TARP list through an entry in PIMS. If the PIMS record contains no such entry from the KCC, the adjudicating officer is relieved from having to review the TARP list for the petitioner. If there is such an entry, individual officers should check the pertinent LCA for the required attestations and, if these attestations are absent, return the petition to USCIS for revocation.

L and H Nonimmigrants - Limitations on Stay (9 FAM 41.54 N18, 9 FAM 41.53 N12)

New guidance clarifies two important issues relating to the limitations on total periods of stay by L and H nonimmigrants:

1) The period of stay accrued by L and H nonimmigrants is determined by the total number of days the individual has been physically present in the U.S. in L or H status.

2) Time spent in the U.S. in L-2 or H-4 status does not count against the maximum period of stay available to an L-1 or H-1B nonimmigrant.

Personal Employee (Under Age 18) of Foreign Diplomat (9 FAM 41.22 N4.5)

Earlier this year, the Department published 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. This month, the Department adds an important proviso to this guidance: If the proposed housekeeper, gardener, child-care worker or other personal employee of a foreign diplomat is under the age of 18, the consular officer may not issue the requested A-3 or G-5 visa prior to receiving an advisory opinion from the Visa Office.

Are You Smarter Than A Junior Consular Officer?

1) According to official DHS statistics, how many people became U.S. Legal Permanent Residents last year?
(a) More than 100,000 but less than 500,000
(b) More than 500,000 but less than 1,000,000
(c) More than 1,000,000 but less than 2,000,000
(d) More than 2,000,000

2) Who is Nigeria's acting President?
(a) Goodluck Jonathan
(b) Good Will Jonathan
(c) Brother Jonathan

3) If a U.S. citizen resides abroad, may he or she file Form I-129F on behalf of a foreign national fiancé(e) with a USCIS immigration officer stationed at a U.S. Embassy abroad?

4) Which U.S. Embassy has more Facebook fans than all other U.S. Embassies combined?

5) Name one circumstance in which a consular officer may require an NIV applicant to undergo a medical examination as part of the visa application process.

6) True or false: U.S. citizens are the primary source of refugee claims at Canada's land ports of entry.

7) According to the FAM, what is the standard of review to be exercised by consular officer in adjudicating a Blanket L visa application?
(a) The application is more likely than not to be approvable.
(b) The application is clearly approvable.
(c) The application is approvable beyond the shadow of a doubt.

8) True or false: H-4 dependents of H-1 nonimmigrants need not demonstrate that they have a residence abroad to which they intend to return but H-4 dependents of H-2 and H-3 nonimmigrants are subject to the residence abroad requirement.

9) When fully constructed, which of the following US Embassies will have cost us (and our fellow taxpayers) the most money?
(a) Embassy Baghdad
(b) Embassy Islamabad
(c) Embassy London

10) Which U.S. Consulate General will be the site of wild celebrations following the Team U.S.A. victory in the Soccer World Cup final played in its host city this July?

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

# Country US Consular Post Visa Wait Time Increase/Decrease from last month Top 10 Position Last Month
1 Cuba US Interests Section Havana 959 days + 56 days 1
2 Venezuela Caracas 300 days No change 2
3 Montenegro Podgorica 79 days -4 days 4
4 Mongolia Ulaanbaatar 60 days + 59 days New listing
5 China Shanghai 55 days + 30 days New listing
6 Nigeria Lagos 45 days No change 5
7 Canada Montreal 42 days No change 6 (tie)
8 Canada Toronto 41 days - 1 day 6 (tie)
9 (tie) Canada Vancouver 38 days New listing
10 China Beijing 31 days + 24 days New listing

The U.S. Embassy in Ulaanbaatar, Mongolia, makes its maiden appearance in the Top Ten list, following a meteoric increase in wait times from 1 to 60 days. Dhahran reports a meteoric decrease in wait times from 135 to 7. Havana is just 41 days short of an historic 1,000-day wait time.

Updated to April 7, 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:

The Americas (excluding Cuba) Venezuela/Caracas (300 days)
Europe and Eurasia Montenegro/Podgorica (79 days)
East Asia and Pacific Mongolia/ Ulaanbaatar (60 days)
Africa Nigeria/Lagos (45 days)
Middle East and North Africa Yemen/Sanaa (22 days)
Central and South Asia India/New Delhi (21 days)

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

1) (c) (1,130,818)

2) (a)

3) No. All K petitions must be filed with the DHS office having jurisdiction over the petitioner's current or intended residence in the U.S. 9 FAM 41.82 N2

4) Embassy Jakarta (Thanks to Diplopundit!)

5) The applicant seeks a K visa; the applicant has a record of drunk driving-related offenses; the officer believes that the applicant may be otherwise medically ineligible to receive a visa.

6) False (we're number 2 behind Colombia).

7) (b)

8) True. 41.53 N17.1

9) (c) ($1 Billion)

10) CG Johannesburg.

Quote of the Corner

"People ask if architecture really matters when security is such an overriding concern. There is no better illustration that it does matter than President Lincoln's decision during the Civil War not to stop construction of the great Capitol dome. 'When the people see the dome rising,' he declared, 'it will be a sign that we intend the union to go on.' Lincoln recognized the power of architecture to inspire hope. We might learn from his example when it comes to America's presence abroad today." -- Architectural historian Jane C. Loeffler

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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