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Immigration Daily

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Consular Processing Today: Visa Procedures, Security Clearances, And Waivers

Speakers: Jan Pederson, Roberta Freedman, William Q. Beardslee (DOS), Robyn Bishop (DOS), Santiago Burciaga (DOS), Angela Colyvas (DOS), Steve Fischel (DOS), Joel S. Guberman, John B. Klow (DHS), Andrew C. Kotval (DOS), Michael Schimmel (DOS), Heather N. Segal, Robert W. Settje (DOS), Gary Sheaffer (DOS) and Hugh Williams (DOS).

Seminar Outline Speaker bios REGISTER NOW!

Each call features an hour of analysis, strategy and practice tips by Jan Pederson, Roberta Freedman, William Q. Beardslee (DOS), Robyn Bishop (DOS), Santiago Burciaga (DOS), Angela Colyvas (DOS), Steve Fischel (DOS), Joel S. Guberman, John B. Klow (DHS), Andrew C. Kotval (DOS), Michael Schimmel (DOS), Heather N. Segal, Robert W. Settje (DOS), Gary Sheaffer (DOS) and Hugh Williams (DOS)


FIRST Phone Session on February 28th: NIV Issues

Third Country National NIV applications in Canada and Mexico.

  1. Border Post review of who can apply and who cannot.
  2. Rationale for limitations on who cannot apply.
  3. Appointments always necessary.
  4. Can List of 26 and T-7 apply? At which posts can they apply?
  5. Is there a case for a TCN not applying in Canada or Mexico, if eligible to do so?
  6. Border Post review of right to counsel at visa interviews.
  7. Circumstances under which an applicant not issued a visa at a border post can return to the United States.

Home Country Visa Applications.

  1. Appointments almost always necessary. Check waiting times on DOS Website and check consular post Website for details.
  2. Research post policies, personnel and local red flags.
  3. Why BCIS approved petitions (H, L, O, P) are not a promise of a visa.
  4. Prepare the client for the interview and ensure visa applications are completed accurately and completely.
  5. Documents applicant should bring to the interview.
  6. Personal Appearance Waivers.
  7. What to do when there is a glitch at the visa interview (Security clearances; NCIC Checks and Hits in the Database-the applicant forgot about the rest for pot or shoplifting 30 years ago; Petition Issues- Job Inflation, Skills Tests, DOes the job exist and can the employer afford to pay the wage.)

Special Visa Processing Issues.

  1. Considerations in Applying for a B-1/B-2 visa after BC/BP refuses entry under the visa waiver program.
  2. What happens at the visa interview when an applicant subject to NSEERS registration forgot to report to BC/BP upon departure or reported but the computer indicates an NSEERS violation?
  3. Unlawful presence and 222(g) considerations.

SECOND Phone Session on March 16th: IV Issues

Considerations in Consular Processing.

  1. Unlawful Presence.
  2. Risk that the applicant's visa and/or immigration history will risk a delay or denial.
  3. Readjudication of labor certifications, visa petitions and qualifications of applicant.

Considerations in consular policies in processing employment-based immigrant visas on the basis on an original notice of approval of the I-140 and consular acceptance of third country national immigrant visa cases, per DOS Cable 180792, "Processing I-140 Petitions for Applicants Residing in the U.S."

  1. The DOS cable encourage posts to accept third country national IV cases, yet attorneys report few posts willing to help. What can be done?
  2. Processing an IV on the basis of an original notice of approval can save years of waiting. What can attorneys do to increase consular receptivity to such processing, particularly where there are no fraud indicators (Cases with low/no fraud indicators.)
"Following-to-join" issues.
  1. Documents to file with the consular posts.
  2. When can principal alien's entitlement to LPR status be readjudicated at the IV interview of the "following-to-join" spouse or child? When may the IV issuance be properly delayed and for how long? (Issue arises in Manila when principal alien adjusted status as a nurse; Issue arises when principal alien adjusted status as an asylee or through legalization; Issue arises when consular officer questions whether principal alien in F2A (unmarried minor child) and F2B (unmarried, adult son or daughter) cases is maintaining his/her principal place of residence and domicile in the United States at the time of the interview.)
Considerations in family-based petition cases.
  1. When blood relationship questioned, may attorney insist on DNA test and through what mechanism? Often, much time would be saved through DNA testing, particularly when the alternatives are returning an approved petition to BCIS and/or awaiting the outcome of a local investigation.
  2. Strategies to resolve relationship questions locally in lieu of petition return to BCIS.
  3. I-864 issues (Whether petitioner "resides" in the United States.)

Processing of an "Age-Out" Case.

Processing of a Child Status Protection Act (CSPA) Case.

"Portability of an approved alien labor certification and I-140" to immigrant visa processing.

THIRD Phone Session on April 7th: Waiver Practice in Consular Processing

Nonimmigrant Visa Waivers of Inadmissibility.

  1. General Issues
    • Who is eligible for a 212(d)(3) waiver?
    • Which grounds can be waived?
    • Which grounds cannot be waived?
    • The life of a waiver.
  2. Procedures for requesting a 212(d)(3) waiver.
    • Request made to consular officer after refusal.
    • Consular officer can either recommend or refuse to recommend to overseas DHS office that a waiver be granted.
    • DHS has final authority to grant or deny waiver.
    • Appeal Procedures if consular officers refuses to make favorable recommendation and winning strategies.
  3. Processing Times and Procedures.
    • When the waiver request must or may be sent to the Visa Office by the consular officer.
  4. Criteria considered in waiver request/approvals.
    • Matter of Hranka-is it the beginning or end of the consular decision making process?
    • How big, how bad and how long ago was the prevarication?
    • How long ago was the conviction and how serious was the crime?
    • Evidence of reformation and remorse.
    • Purpose of trip. Does life-saving medical treatment trump a trip to Disneyland?
    • Consular officers are directed to apply a balancing test; weighing the equities against the negative factors. How this works in practice.
Immigrant Visa Waivers of Inadmissibility
  1. General Issues
    • Who is eligible for a waiver?
    • Which grounds can be waived?
    • Which grounds cannot be waived?
  2. Procedures for requesting a waiver.
    • Form I-601 filed with consular officer for most grounds.
    • Consular officer must forward I-601 to DHS office overseas for adjudication.
    • Fingerprints and G-325a often required.
    • Send client to IV interview fully documented with respect to both possible grounds of ineligibility and reasons why waiver should be granted.
Coming to America when a visa isn't issued.
  1. General Issues
    • Humanitarian Parole.
    • Visa Waiver at port-of-entry.
    • 212(d)(4) waiver at land border port of entry.
Citations for Session 1        Citations for Session 3       

Question 1        Question 2       


Jan Pederson is the founder of the law firm Pederson & Freedman, LLP in Washington, D.C. in 1980. Recognized by The Washington Post as one of "seven leading lawyers" in Washington, D.C., Ms. Pederson has been dedicated to the practice of immigration and nationality law for over twenty years. She has successfully represented thousands of clients and is masterful at resolving complex immigration issues. She served as president of the Washington, D.C. Chapter of the American Immigration Lawyers Association (AILA); as an elected director of the national Board of Governors of AILA for eighteen years. She has served as a chairperson of the Physicians Task Force of AILA for many years and has also served as chairperson of the AILA Visa Office Liaison Committee and Refugee Committee. She was the recipient of the prestigious national award, The Edith Lowenstein Award, in 1997 for excellence in the advancement of the practice of immigration law. Ms. Pederson graduated with honors from the University of Washington with a Bachelor of Arts degree in Economics and from Howard University with a Juris Doctor degree.

Roberta Freedman has practiced immigration and nationality law exclusively for over fifteen years. She is well known for her highly effective representation of clients in resolving complex immigration cases. The American Immigration Lawyers Association (AILA) has recognized her as a national leader by electing her as a national director. She has been selected by the Immigration & Naturalization Service (INS) to lead high-profile joint INS-private sector projects, including nationally televised ceremonies. As an expert in immigration law, Ms. Freedman has been interviewed on national and international television and radio. The Washington Post, ABC News, The Washington Times, The Associated Press and other national media. Ms. Freedman graduated from Syracuse University with a double major and was awarded a Bachelor of Arts degree in Political Science (Maxwell School) and Spanish Language and Literature. She was awarded a Juris Doctor degree from the University of Baltimore School of Law.

William Q. Beardslee is a Consular Officer in the Advisory Opinions Division office of the Department of State

Robyn Bishop is a career member of the Senior Foreign Service with the rank of Minister Counselor. Prior to assuming her duties as Minister Counselor for Consular Affairs in Mexico City, Mrs. Bishop was Deputy Executive Director in the Bureau of Consular Affairs in Washington, DC. She has also worked in the Bureau of Human Resources and as a Senior Watch Officer in the State Department's 24-hour Operations Center. She served as Deputy Chief of Mission in Port Moresby, Papua New Guinea (1992-95) and Consul General in Lagos, Nigeria (1990-92). She has held consular assignments in Nairobi, Kenya; Tokyo, Japan; Kuwait; Sydney, Australia and Paris, France. In 1985-86, Mrs. Bishop was an American Political Science Association Congressional Fellow and worked on the staff of Congressman Bill McCollum (R-FL) and for the Senate Subcommittee on Immigration. She joined the Foreign Service in 1973 and is a 1996 graduate of the State Department's Senior Seminar. She holds three Department Superior Honor Awards, one Meritorious Honor Award, and the Presidential Distinguished Service Award. She is a native of Illinois and a graduate of Beloit College in Wisconsin. She is married to Foreign Service Officer Allen Bishop who is an administrative officer at the American Embassy in Mexico City.

Santiago Burciaga is Chief of the Immigrant Visa Section in Ciudud Juarez, Mexico.

Angela Colyvas is Deputy Chief of the Visa Section in Lima, Peru. She joined the Foreign Service in September 1997. She served in Havana, Cuba (Vice Consul) from 1998-2000 and as a Political Officer in Paris from 2000-2002. She joins Embassy Lima following a two-year assignment in the Visa Office (CA/VO/L/C). Angela is a native of Philadelphia, Pennsylvania. She received a Bachelors degree in International Careers from Lehigh University in 1992 and a Masters Degree from Thunderbird, the American Graduate School of International Management in 1995. Prior to joining the Foreign Service, Angela was a consultant with Ernst & Young, LLP.

Steve Fischel is the Director of Legislation, Regulations and Advisory Assistance in the Visa Office of the Department of State.

Joel S. Guberman has practiced in the field of U.S. and Canadian immigration law for more than 15 years. He is certified as a Specialist in Immigration Law by the Law Society of Upper Canada. He is certified by the Law Society of Upper Canada as a Specialist in Immigration Law, Past Chair and long standing Member of the American Immigration Lawyers Association, Canada Chapter. He is listed in "The 2003 Guide to the Leading 500 Lawyers in Canada" published by LEXPERT and compiled by American Lawyer Media, the 2003 "International Who's Who of Corporate Immigration Lawyers" published by Law Business Research of London, England, and the 2001-2002 Edition of the National Register's "Who's Who in Executives and Professionals". He has been qualified as an expert witness in immigration matters by the Ontario Court of Justice. Mr. Guberman is a frequent speaker on immigration topics, both in Canada and the United States, and has published numerous articles and papers on immigration-related issues.

John B. Klow is with the Department of Homeland Security.

Andrew C. Kotval works in the Deputy Coordination Division office of the Department of State.

Michael Schimmel is Chief of Visa Section of the U.S. Consulate in Toronto, CA.

Heather N. Segal received her Master of Law degree from the University of California at Berkeley, Boalt Hall School of Law. Previously, she completed her Bachelor of Laws degree at Queen's University and Bachelor of Arts degree at the University of Toronto. Ms Segal is currently an active member of both the State Bar of California and the American Bar Association and a member of the Law Society of Upper Canada, the Ontario Bar Association, Immigration Section, and the Canadian Bar Association, Immigration Section. She has held the position of Treasurer of the American Immigration Lawyers Association, Canada Chapter (1998-2000), Vice Chair of the American Immigration Lawyers Association, Canada Chapter (2000-2002) and Chapter Chair of the American Immigration Lawyers Association, Canada Chapter (2002-2004). She is currently on the executive of the American Immigration Lawyers Association, Canada Chapter. Ms Segal was a member of the American Immigration Lawyers Association National Office Border Issues Committee (1999-2001) and was served on the national AILA Border Watch Task Force (2002). She currently sits on the AILA national office Bureau of Customs and Border Patrol liaison committee (2003 - 2005). Ms Segal participated in an intensive research program at The Hague Academy of International Law Center for Studies and Research. She completed a chapter for a book, emanating from this research program, which was published by The Hague Academy. Ms Segal is recognized for her expertise in immigration law and consequently she speaks regularly at conferences and seminars throughout the world. Additionally, she has been invited to speak on numerous panels for immigration issues, as well as at annual conferences, for the Canadian Bar Association, American Immigration Lawyers Association, Law Society of Upper Canada and the Canadian Employee Relocation Council. Her precedent cases have been featured in national and international newspapers and magazines such as the Globe and Mail and Business Week.

Robert W. Settje is a consular officer assigned to the Legal Advisory Opinions Division of the Department of State's Visa Office. A 1985 graduate of Harvard Law School, he earned his A.B. in History from Carleton College (1976) and did independent study at the Italian University for Foreigners in Perugia, Italy (1977). Before attending law school (1979-82), he was a police officer in Madison, WI, where, inter alia, he was a member of the Department's SWAT team. Following law school, Mr. Settje served as law clerk to the Hon. Joseph Quinn, Chief Justice of the Colorado Supreme Court (1985-86), and was an associate at Holland & Hart in Denver (1987-88). From 1988-94, he was a Deputy District Attorney in Golden, Colorado. Since joining the Foreign Service in 1994, he has served in Santo Domingo (vice-consul and political/economic officer, 1994-96), Munich (Consular Section Co-Chief, 1997-2000), and Naples (Visa Section Chief and Deputy Consular Section Chief, 2000-2003).

Gary Sheaffer has been Consular Section Chief in Montreal since July 2003. He joined the Foreign Service in 1984, serving as a consular officer in Vancouver and Paris, and as an administrative officer in Algiers. In Washington, he served as public affairs officer for the Bureau of Consular Affairs, and worked in the Bureau's Office of Visa Services and Office of Overseas Citizen Services. From 1998 to 2001, Mr. Sheaffer was Consular Section Chief in Istanbul. He has been awarded the Department's Superior Honor Award and three Meritorious Honor Awards. He is a native of Pennsylvania, and a graduate of Dickinson College.

Hugh Williams became Consular Chief in Toronto in July, 2001. As a career member of the Senior Foreign Service, he has spent a combination of 18 years overseas at U.S. missions in Asia and the Western Hemisphere. As a result of his service, he has received the State Department's Meritorious Honor Award on three occasions. He served as Consul General at the U.S. Embassy in Kuala Lumpur from 1996 until 1999 as well as Consular Chief at the U.S. Consulate General in Chennai, India from 1991 to 1994. At the U.S. Embassy in Jakarta he was Personnel Section Chief from 1989 to 1991 and he served as Consular Chief at the U.S. Consulate General in Quebec from 1983 until 1985. As a junior officer, he was posted at the U.S. Embassies in Brussels and Kingston. His assignments in Washington have included positions as personnel officer in the Human Resources Bureau. He served as International Relations Officer at the National Foreign Affairs Training Center, and Desk Officer in the Africa Bureau's Office of West African Affairs. Before joining the Foreign Service, he was a Peace Corps Volunteer in Sierra Leone where he taught high school math and coached Sierra Leone's national basketball team. Additionally, he taught high school math briefly at public schools in Houston and Philadelphia. A native of Philadelphia, he earned his Bachelor of Science in Math from Delaware State University in 1973. He was awarded a Master Degree in Math Education from Texas Southern University 1976 and a Master in Strategic Studies from the Air War College in Montgomery, Alabama in 2000.

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