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< Back to current issue of Immigration Daily

How the Department of State Empowers Extortionists and Miscreants

by Kenneth White

While the Department of State was recently touting to the public various initiatives to expedite visa processing,[1] behind-the-scenes, the Department and its overseas consular posts were busy continuing to deny legitimate visa applications, revoke the visas of authorized visa holders, and deprive selected DV-Lottery winners of their ability to apply for immigrant visas. Why? Because the Department has decided to favor ill-motivated, poison-pen miscreants and extortion-minded visa consultants over legitimate applicants and visa holders.

Allow me to explain.

Poison Pen Letters

The Department of State has a soft spot for poison pen letter writers and black-mailers, regardless of motivation. Since 9/11, approximately 60,000 individuals have had their valid visas revoked based on information which came to light after the issuance of a visa.[2] An unknown number of other individuals have had their applications denied because of poison pen letter writers.

Why do these ill-wishers have a close ally in the Department of State? While anonymous tips certainly have an appropriate place in law enforcement, too often the Department of State and consular officers in the field take such allegations at face value. Consular officers sometimes will not confront the applicant with the allegations, in violation of the Department's own mandate.[3] It is not unusual for consular officers to play the "guess the identity of the poison pen letter writer" game with the applicant: guess correctly and you may get a visa; guess incorrectly, and you won't get a visa. Sometimes, the officers will deep-six the applicant's attempt to find out the substance of the allegations by referring him to the FOIA process, knowing full well that most FOIA requests in visa matters are a futile endeavor. The Department thus confronts the applicant with a Sisyphean task: try to meet your evidentiary burden under INA 291[4] without knowing of the existence of such allegations; their substance; and/or the source.

In one case known to the author, a Russian woman rejected the romantic overtures of an American man. After she refused to marry him, he sent a letter to the police saying that she and her friend were Russian spies and that their visas should be revoked. Lo and behold, the Visa Office "prudentially revoked" the visas. Most incredibly, after the revocation, the women were interviewed by consular officers and presented more than 50 documents reflecting his sordid motives, yet the Department has failed to reinstate their visas.

A similar case in the author's practice involved a disgruntled former employee of a Russian businessman sending a letter to the US Embassy in Moscow accusing the businessman of engaging in drug trafficking. But rather than confronting the businessman with the allegations or giving him a chance to rebut the adverse information, the Embassy simply notified him by mail that he was being permanently barred from the United States as a drug trafficker.

Other cases the author has seen include a disgruntled ex-spouse writing that her husband owed child support when he did not; a religious fundamentalist who claimed that an applicant had engaged in immoral behavior and sent to the embassy video materials of the applicant involved in prurient behavior; and a debtor who wanted to cut off access to US courts by notifying the consulate that he believes that the holder plans to remain in the US illegally on his nonimmigrant visa. In the latter case, the applicant was denied four visas over a ten-year period before finally receiving a visa. Even if the allegation is unsubstantiated and thus not sufficient to invoke an inadmissibility bar, the nonimmigrant visa is often revoked or denied pursuant to Section 214(b) of the INA under the rubric of "lack of applicant credibility".

Diversity Lottery Visa Consultants

The issue of shady DV-Lottery visa consultants is also not a new one. However, the Department's handling of them is novel and plays right into their hands. To understand how, a little background is in order. All DV-Lottery entries are submitted online during the registration period every October. When a person submits his entry, he receives a confirmation number. In the spring, DOS conducts the selection process. However, it does not publicly announce the results. Rather, entrants must go to the DOS website to access the results, using the confirmation number. If his entry has been selected, he will receive online a selection letter with instructions on the submission of forms to the Kentucky Consular Center (KCC). After the Kentucky Consular Center has received the documentation, depending on the rank order number, it will schedule the interview date. To access the interview date, however, one must have the submission confirmation number.

The MO of the shady visa consultants is simple: when completing the DV-Lottery entry on behalf of the client, they retain the submission confirmation number, not informing the client of the number. When the results are posted online, only the visa consultant has access to the results and the confirmation number. In a situation where the client has been selected, the visa consultant will inform the client of his selection, but demand a large payment in exchange for the confirmation and case numbers.

When the client-selectee refuses to pay, he contacts the KCC. The selectee apprises KCC of the problem and submits the necessary forms for the appointing of an immigrant visa interview. After KCC processes the application and schedules an appointment, the individual's online case information is updated. Due to a Department decision to not send out interview appointment notices by mail anymore, the applicant can only learn about the scheduled appointment via the online system. As pointed out, in order to access the online system, one must have the confirmation number. Because the applicant does not have access to the online system, he then contacts KCC and the relevant consular post to find out the interview date. KCC and the consular post will not disclose the interview date to the applicant. In one case known to the author, an applicant was advised that her interview date had passed. In response to her request to reschedule the interview, both the consular post and the Visa Office refused to do so, citing large demand for the visas and Lottery instructions advising entrants that they should not employ the services of such consultants.

The solution of course is quite simple: if consular officers have concerns about disclosing the interview date to an e-mail writer or caller, the individual can appear at the Embassy with his/her passport and her identity can be confirmed. As it stands, the bargaining power of the shady visa consultants has gone up dramatically; they know that there is no other way that the winner will be able to obtain an immigrant visa, except through them. Rather than coming down on the side of reason, the Department has taken the draconian position of buttressing the business of visa consultants and punishing visa entrants for using the services of these consultants. In effect, it has advised the selectees: pay the extortion amount because you have no other way of obtaining your visa except through the consultant.

CONCLUSION

The root of the problem, of course, is a lack of accountability. Department of State visa bureaucrats and consular officers are among the most powerful government officials - not subject to judicial oversight, an administrative appeals board, Ombudsman, or even a simple complaint procedure.[5] Empowerment of miscreants and extortionists is just another manifestation of this unchecked power gone amuck.


Footnotes

1 http://travel.state.gov/visa/visa_5663.html, http://travel.state.gov/visa/visa_5654.html

2 Written Statement of David T. Donahue, Deputy Assistant Secretary for Visa Services, Department of State, Before the US House of Representatives Committee on Homeland Security Subcommittee on Border and Maritime Security (March 6, 2012)

3 State Cable 102813 (June 12, 2001)

4 "Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this Act, and, if an alien, that he is entitled to the nonimmigrant; immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this Act." Section 291, Immigration and Nationality Act, 8 U.S.C. 1361.

5 The author proposed the implementation of a DOS Complaint Procedure at

http://www.ilw.com/articles/2011,0408-white.shtm


About The Author

Kenneth White is a member of the District of Columbia and Pennsylvania bars and was a long-time resident of Moscow, Russia, where he had his own immigration law practice. He is the co-author of the books "U.S. Nonimmigrant Visas," "U.S. Immigration and Citizenship," and "Handbook for Immigrants to Canada." Mr. White's law firm specializes in consular matters, EB-5 representation, and U.S. immigration issues.


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


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