Integrity Legal

Archive for the ‘US Embassy Nepal’ Category

27th May 2017

It has come to this blogger’s attention that the new administration in the USA has promulgated policies which will place more scrutiny upon those who may be applying for visas to the USA in the future. The proposed “extreme vetting” of US visa applications in a Consular Processing context appears to be aimed at narrow subsets of “red flagged” visa applicants. In order to best summarize this policy shift, it is necessary to quote directly from a relatively recent Reuters article:

The final cable seen by Reuters, issued on March 17, leaves in place an instruction to consular chiefs in each diplomatic mission, or post, to convene working groups of law enforcement and intelligence officials to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny.” Applicants falling within one of these identified population groups should be considered for higher-level security screening…

The new administration appears keen to narrowly target those applicants which are deemed to be appropriate for “increased scrutiny”. However, a rather recent proposal has been submitted by the U.S. Department of State requesting implementation of the emergency review procedures of the Paperwork Reduction Act of 1995. In short, the DOS is requesting expedited processing of a request to modify the forms associated with applications for US visas. To quote directly from the US government website Regulations.gov:

The Department proposes requesting the following information, if not already included in an application, from a subset of visa applicants worldwide, in order to more rigorously evaluate applicants for terrorism or other national security-related visa ineligibilities:

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

 

Most of this information is already collected on visa applications but for a shorter time period, e.g. five years rather than fifteen years. Requests for names and dates of birth of siblings and, for some applicants, children are new. The request for social media identifiers and associated platforms is new for the Department of State, although it is already collected on a voluntary basis by the Department of Homeland Security (DHS) for certain individuals.

It is this blogger’s opinion that the long term implications of these policy changes will be broad. However, from reading the aforementioned notice, it appears that, at the present time, DOS personnel will only be seeking more detailed information on certain individual applicants, and not from all applicants seeking visas to the USA. How will the narrow subset of applicants subject to increased scrutiny be determined? To answer that it is necessary to quote further from the Regulations.gov website:

Department of State consular officers at visa-adjudicating posts worldwide will ask the proposed additional questions to resolve an applicant’s identity or to vet for terrorism or other national security related visa ineligibilities when the consular officer determines that the circumstances of a visa applicant, a review of a visa application, or responses in a visa interview indicate a need for greater scrutiny.

Notwithstanding the fact that enhanced scrutiny will apparently only be applied on a case by case basis and only upon those individuals who are deemed to be in need of such scrutiny it seems logical to infer that at some point these additional screening protocols may be applied on a broader basis; if for no other reason than the fact that applying such scrutiny across the board might save time and resources of Consular Officials making cases by case determinations. As it stands, as of the time of this writing, the new protocols add a degree of uncertainty to the visa application process and Consular processing in general as it is difficult to foresee what may be considered a trait which warrants heightened scrutiny. Therefore, planning for such an eventuality is problematic.

As this situation continues to evolve this blog will post further updates.

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29th May 2011

It recently came to this blogger’s attention that there may be some geopolitical tensions arising in Asia in connection to issues associated with the use of water. To quote directly from a very insightful article apparently written by Santha Oorjitham of the New Straits Times and posted by chellaney on the blog Stagecraft and Statecraft:

[T]he lower Mekong states of Thailand, Cambodia, Laos, and Vietnam have a water treaty. India has water-sharing treaties with both the countries located downstream — Bangladesh and Pakistan. There are also water treaties between India and its two small upstream neighbours, Nepal and Bhutan. But China, the dominant riparian power of Asia, refuses to enter into water-sharing arrangements with any of its neighbours. Yet China enjoys an unrivalled global status as the source of trans-boundary river flows to the largest number of countries, ranging from Vietnam and Afghanistan to Russia and Kazakhstan…

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks above in order to read more from this fascinating article. For readers who are unfamiliar with matters pertaining to Asia, particularly Southern Asia or Southeast Asia, it should be noted that water issues can be extremely important for Asian political actors and policy makers. Issues associated with water can have ramifications upon the economies, political institutions, and business environments in Asia and around the globe. As regional associations such as the Association of Southeast Asian Nations (ASEAN) and nations such as India and China begin to become increasingly important players on the international stage it stands to reason that water issues pertaining to Asia will be considered increasingly important by those seeking news and information about the area.

Meanwhile it also recently came to this blogger’s attention that the United States Citizenship and Immigration Service (USCIS) is taking measures in an effort to transform that agency into a more electronic environment compared to the current primarily paper-based environment in which it now apparently finds itself. To quote directly from a USCIS Executive summary as posted upon the website ILW.com:

U.S. Citizenship and Immigration Services (USCIS or Agency) is undertaking an agency-wide effort to move immigration services from a paper-based model to an electronic environment. This effort is known as USCIS Transformation. Transformation will deliver a simplified, Web-based system for benefit seekers to submit and track their applications. The new system is account-centric and will provide customers with improved service. It will also enhance USCIS’s ability to process cases with greater precision, security, and timeliness. In March 2011, the Office of Transformation Coordination and the Office of Public Engagement hosted a series of listening sessions and webinars with participants representing customers, attorneys and community-based organizations (CBOs). The purpose of these listening sessions was to inform USCIS about the benefits and challenges of moving to an electronic environment…

Those interested in learning further about this transformation from the USCIS Executive Summary are well advised to click upon the relevant hyperlinks above to find out more.

This blogger is personally pleased to see the United States Citizenship and Immigration Service (USCIS), an agency under the jurisdiction of the Department of Homeland Security, taking measures to create a more efficient system for adjudication of immigration and visa related petitions or applications. Frequent readers of this blog may have taken note of the fact that USCIS is the initial adjudicator of petitions for the K-1 visa (US fiance visa) as well as the CR-1 visa (US Marriage Visa) and the IR-1 visa. Hopefully, USCIS’s transformation will result in more streamlined processing of the aforementioned petitions.

For related information please see: US-Thai Treaty of Amity or Consular Processing

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20th May 2011

It recently came to the attention of this blogger that the United States Supreme Court may be hearing a case pertaining to issues surrounding the issuance of Consular Reports of Birth Abroad (CRBA). Such documents are generally issued by Consular Officers of the Department of State at a US Embassy or US Consulate abroad.  To quote directly from a May 2nd posting by Lyle Denniston on ScotusBlog at scotusblog.com:

Stepping into a significant test of the President’s foreign policy powers, the Supreme Court agreed on Monday to decide whether Congress had the authority to dictate how the Executive Branch makes out birth certificates for U.S. citizens born abroad — in this case, in Jerusalem, a city that the U.S. government does not recognize as an official part of Israel.  At issue is the validity of a nine-year-old law in which Congress aimed to acknowledge Jerusalem as the capital of Israel.  That dispute came in one of two cases the Court agreed on Monday to hear, at its next Term.

The administration of this blog strongly encourages readers to click the hyperlinks above to read this posting on ScotusBlog in its entirety as it cogently provides information about what could prove to be a very pertinent issue in the days and weeks ahead.

Although the issuance of a Consular Report of Birth Abroad may seem innocuous, especially to American Citizens who do not have a great deal of international experience; but it should be noted that this document is very important as issuance of a Consular Report of Birth Abroad documents the fact that an American Citizen was born overseas. This document is thereby used to obtain a US passport as well as other documentation. To continue quoting from the aforementioned article:

After State Department officials refused to fill out a report on the foreign birth of a boy born in 2002 in a Jerusalem hospital to show that his birthplace was “Israel,” his parents sued, seeking to enforce the 2002 law that ordered the State Department to do just that, when asked to do so.   A federal judge and the D.C. Circuit Court refused to decide the case, saying the controversy was a “political question” that the courts had no authority to resolve.

The law noted above attempts to deal with a somewhat difficult issue as Jerusalem is not technically considered to be part of the Greater State of Israel. In order to provide more insight on this complex issue it may be best to quote directly from the preamble to the opposition’s brief in this case:

QUESTION PRESENTED

Whether the court of appeals erred in affirming the dismissal of petitioner’s suit seeking to compel the Secretary of State to record “Israel” as his place of birth in his United States passport and Consular Report of Birth Abroad, instead of “Jerusalem,” when the panel unanimously agreed that the decision how to record the place of birth for a citizen born in Jerusalem in official United States government documents is committed exclusively to the Executive Branch by the Constitution.

The administration urges readers to click on the hyperlink noted above to read the opposition’s brief in detail.

It would appear to this blogger as though the issues in this case are likely to result in any finding having tremendous ramifications. This is due to the fact that there really are two important notions in competition. Namely, the right of the individual or family to choose the manner in which a report of birth abroad is promulgated and the right of the Executive Branch to conduct foreign policy.

It remains to be seen how the Court will rule on these issues, but one this is certain: cases involving a “political question” often make for the most interesting decisions.

For related information please see: Certificate of Citizenship or Legal.

more Comments: 04

14th May 2011

It recently came to this blogger’s attention that some have criticized the current process associated with adjudication and issuance of United States visas. Notably, it would seem that this criticism is mostly concerned with non-immigrant visas such as the B-2 visa (US tourist visa) and the B-1 visa (US business visa). To quote directly from a Reuters story posted on the website airwise.com:

The complicated US visa system hurts tourism and must be reformed if the United States wants to attract lucrative tourism from countries such as China, India and Brazil, travel industry officials said…

Readers of this blog are encouraged to click upon the hyperlinks noted above to read this story in detail and also gain greater insight into this developing issue.

At the time of this writing the United States maintains a system which allows for some nations to receive admission to the USA through a visa waiver program. As noted above: China, India, and Brazil are not included in the visa waiver program. This situation exists notwithstanding the fact that these three nations in association with two others (South Africa and Russia) compose the so-called BRICS group of developing countries with what some would claim is a virtually unlimited capacity for economic growth in the future.

This visa waiver program also entails the so-called “ESTA” (Electronic System For Travel Authorization) program, which requires foreign nationals to pre-register for admission to the United States before beginning their journey to America. It should be noted that in its current form the ESTA program only pertains to nationals from visa waiver participating countries. Therefore, nationals from countries such as China, India, Brazil, Indonesia, and the Kingdom of Thailand cannot benefit from the visa waiver program and the ESTA program as of the time of this writing.

Those interested in further information on such topics are encouraged to visit a few official websites: HERE and HERE. To quote further from the aforementioned piece:

“The challenge we have is the unnecessary, burdensome US visa system,” said USTA president Roger Dow. “It’s really self-imposed barriers that we put on ourselves as a country that have caused us to lose international travel and that have stymied international growth.”

This blogger has heard this argument made in the past and it is certainly salient especially at a time when tourism income is in high demand in an international context. To continue quoting further:

The US visa process from beginning to end can take as long as 145 days in Brazil and 120 days in China, a USTA report said. In contrast, Britain takes an average of 12 days to process visas in Brazil and 11 days in China…

Clearly, the visa processing time differential between the United States and the somewhat similarly socioeconomically situated United Kingdom is a stark contrast. To quote further:

US Senator Amy Klobuchar, a Democrat who chairs a subcommittee focused on export promotion and competitiveness, said the travel industry was important to help President Barack Obama meet his stated goal of doubling exports by 2014. “We see it as part of our economic recovery. I see this as a way to get jobs in our country,” Klobuchar said…

It is refreshing to see a federal legislator like Senator Amy Klobucher from the sovereign State of Minnesota taking the time to investigate an issue that may, at first glance, seem mundane. In point of fact, matters pertaining to United States non-immigrant visas are extremely important as they can have a significant impact upon foreign direct investment in the United States and the amount of money raised by American companies and enterprises offering services to foreign nationals both in the USA and abroad. Finally, a legislator trying to find reasonable solutions to American economic concerns in a reasonable manner! America: Let us not forget, we are one of the most historically fascinating and economically dynamic nations ever to have made our voices heard in the chorus of history. Why do we forget this? We seem to find ourselves constantly debating the minutia of our past transgressions or the history of our geopolitically unique grouping of jurisdictions. We do this when solutions to some of the current economic problems stare us in the face. The reality is that there are many around the world who wish to do business with those in the United States of America. There are many who want to buy our products. There currently exists the distinct possibility that the continent of Asia will have a constantly growing middle class of prospective international travelers for decades into the future. These travelers will likely be traveling for both business as well as pleasure. It stands to reason that many prospective tourists from Asia will make their initial international travel decisions with great care. Therefore, America should continue to be mindful of the fact there exists an international competitive market for income generated from tourism.  It stands to reason that more tourists in America means more tourism income.

From a legal perspective there is something to be said for allowing further membership in the United States visa waiver program as it would lead to fewer overall denied visa applications based upon section 214(b) of the United States Immigration and Nationality Act. Currently, many tourist visa applications are denied pursuant to a presumption in the aforementioned section of U.S. law. This section requires Consular Officers to make the factual presumption that a tourist visa applicant is actually an intending American immigrant unless the applicant can produce sufficient evidence to overcome this presumption. The visa waiver program gets around this 214(b) presumption by waiving the need for an American visa. Simultaneously, the visa waiver program also restricts those foreign nationals admitted into the United States from adjusting status to lawful permanent residence. One may adjust one’s status to lawful permanent residence (Green Card status) from tourist visa status in the U.S.A. under very limited circumstances. The visa waiver program does not permit such adjustment and therefore requires those foreign nationals seeking immigrant status to depart the United States and undergo Consular Processing abroad.

It remains to be seen whether or not US visa policy regarding non-immigrant visas such as those described above will be changed, but clearly there is some momentum behind this rather important issue in Washington D.C.

For related information please see: K-1 visa system, K-3 visa system, or US Company Registration.

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29th April 2011

It recently came to this blogger’s attention that the discretionary powers accorded to Consular Officers at United States Missions abroad with regard to visa issuance are to be expanded to provide further latitude to Consular Officers with regard to the revocation of US visas. To quote directly from Justia.com:

This rule changes Department regulations to broaden the authority of a consular officer to revoke a visa at any time subsequent to issuance of the visa, in his or her discretion. These changes to the Department’s revocation regulations expand consular officer visa revocation authority to the full extent allowed by statute. Additionally, this rule change allows consular officers and designated officials within the Department to revoke a visa provisionally while considering a final visa revocation.

Clearly, this rule would expand the authority currently granted to Consular Officers in adjudicating American visa matters. For those who are unfamiliar with this topic it should be noted that Consular Officers currently maintain virtually un-reviewable discretion in matters pertaining to US visa application adjudication. This discretion occurs pursuant to a doctrine referred to as Consular Non-Reviewability (or colloquially referred to as Consular Absolutism). Pursuant to the philosophy underlying this doctrine Courts in the United States are unlikely to review the decisions of a Consular Officer at a US Embassy or US Consulate abroad unless the Consular Officer’s decision in the matter appears “facially illegitimate” to the Court of competent jurisdiction.

Bearing this in mind the announcement went on to point out the reasoning behind the recent decision to make this rule change:

On occasion, after a visa has been issued, the Department or a consular officer may determine that a visa should be revoked when information reveals that the applicant was originally or has since become ineligible or may be ineligible to possess a U.S. visa. Section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) (INA) authorizes the Secretary and consular officers to revoke a visa in their discretion. Current regulations limit the circumstances in which consular officers may revoke visas. In light of security concerns, this amendment grants additional authority to consular officers to revoke visas, consistent with the statutory provisions of the INA. Although this rule eliminates the provisions that permit reconsideration of a revocation, it also allows for the provisional revocation of a visa when there is a need for further consideration of information that might lead to a final revocation. In cases where the person subject to a provisional revocation is found to be eligible for the visa, the visa will be reinstated with no need for reapplication. However, with the exception of provisional revocations, an applicant whose visa has been revoked must apply for another visa, at which time his or her eligibility for the visa will be adjudicated.

In this blogger’s opinion, this rule change could have significant ramifications for prospective visa applicants. That stated, it remains to be seen what the practical implications of this rule change will be. The administration of this web log strongly encourages readers to click on the above hyperlinks to learn more about this topic on Justia.com.

It should be noted that within the text of this memo it was pointed out that this rule is being promulgated pursuant to the Administrative Procedure Act. To quote one final time from the aforementioned document:

This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553 (a) (1), is not subject to the rule making procedures set forth at 5 U.S.C. 553.

Those who have read this blog in the past may recall that the United States Department of State maintains a mandate to conduct the foreign affairs of the United States and one of the duties that is entailed within this mandate is the duty to adjudicate applications for a US visa. This can include applications for visas such as the B-2 visa (for those wishing to engage in recreational travel in the United States), the K-1 visa (a US fiance visa for the foreign fiance of a US Citizen), the CR-1 visa or IR-1 visa (for the spouse of an American Citizen or Lawful Permanent Resident), or, in increasingly rare instances, a K-3 visa (which is a non-immigrant spouse visa for the husband or wife of an American Citizen). It is even posited that this new discretion could have an effect upon adjudication of L-1 visa and EB-5 visa applications, as well as the possible aftermath thereof. In any case, increased Consular discretion is likely to have an impact upon visa applications across the categorical spectrum of American travel documents.

For related information please see: K-1 Visa Thailand or K-1 Visa Cambodia.

For information related to waivers of grounds of inadmissibility (ineligibility) please see: I-601 waiver or I-212 waiver.

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14th April 2011

This blogger recently came across a great deal of interesting information pertaining to issues surrounding the consular processing of United States visas and visa applications.

The first item of note involves a recent United States Federal Court decision which spoke to the issue of the Doctrine of Consular Non-Reviewability (sometimes referred to by the somewhat draconian sounding: Doctrine of “Consular Absolutism”). It would appear that one issue in that case revolved around the procedural usage of administrative designations made by interviewing Consular Officers at the US Consulate in Ho Chi Minh City (HCMC) which were then utilized as a basis for administratively establishing findings of misrepresentation by the United States Citizenship and Immigration Service (USCIS) thereby creating a grounds for revoking the underlying petition. It seems that the Judge in this case did not agree with the plaintiff that usage of so-called “P6C1” tags caused any “actual injury” as “natural expiration” of immigration petitions apparently does not rise to the level of “revocation” under the circumstances in that case. To quote directly from the PDF version of the official order dated March 29, 2011 as found on the Entry Law website at EntryLaw.com:

The F&R concludes that plaintiffs have stated a claim under the APA challenging 9 F.A.M. 40.63 N10.1 as unlawful and in excess of the agency’s statutory authority. F&R 25. That provision states that where a consular officer finds what she believes to be misrepresentation with regard to a family-based immigrant visa petition, the consular officer “must return the petition to the appropriate USCIS office. If the petition is revoked, the materiality of the misrepresentation is established.” 9 F.A.M. 40.63 N10.1. Plaintiffs allege that by placing a “P6C1” marker in a visa beneficiary’s record—indicating a perceived misrepresentation—the State Department saddled plaintiffs with a “permanent misrepresentation bar to any future immigration possibility” if USCIS revokes the petition. First Am. Compl. ¶ 158.4

I reject plaintiffs’ argument, and decline to follow the F&R, because plaintiffs have not properly alleged that a P6C1 marker has any effect on them. Importantly, 9 F.A.M. 40.63 N10.1 states that the materiality of a misrepresentation is only established “[i]f the petition is revoked,” and plaintiffs have not alleged that USCIS revoked the petitions. Therefore, plaintiffs have not stated a plausible claim that any future bar to immigration possibility would attach to plaintiffs as a result of the P6C1 marker. The F&R concludes that because USCIS does not act on petitions, and allows them to expire after denials, that inaction is equivalent to a revocation, and therefore would trigger the permanent misrepresentation bar. F&R 26. However, plaintiffs do not cite any authority for the proposition that the word “revoked” in 9 F.A.M. 40.63 N10.1 includes inaction that allows a petition to expire naturally. Nor have plaintiffs offered any support for the allegation that they are in fact barred from any future action. Thus, plaintiffs have not yet alleged any actual injury with respect to the P6C1 marker. Plaintiffs argue that they should not be required to show actual injury because they are entitled to assume the defendants will “enforce the law as written,” and any future action by plaintiffs would therefore be futile. F&R 27. Because I conclude that the law as written only bars petitioners whose petitions were “revoked,” and not those whose petitions expired naturally, I find no basis upon which to exempt plaintiffs from showing injury. Plaintiffs therefore do not have standing, and have not stated a claim, regarding the Department of State’s use of the P6C1 marker.

Those interested in learning more about the detailed facts of this case as well as issues pertaining to Consular Processing in general are well advised to click on the hyperlinks above to learn more about the seemingly ever evolving issues associated with the US Immigration process and the process of obtaining so-called “hybrid” family-based visas such as the K-1 visa or the K-3 visa as well as classic immigrant visas such as the CR-1 visa and the IR-1 visa from the various US Embassies, Consulates and Missions abroad.

These so-called “P6C1″ markers are not necessarily disagreeable to this blogger per se, but their usage can be troubling to those who study how the visa process works in a real-world environment. This blogger fully believes that Consular Officers are entitled to make factually based decisions which may have legal ramifications either in the form of a finding of a legal grounds of inadmissibility which may or may not be waivable through application for an I-601 waiver and/or an I-212 waiver (depending upon the situation). That said, why all of the redundancy? Where applicable, why not simply make the material misrepresentation finding of inadmissibility at the American Consulate or American Embassy abroad thereby providing a more streamlined opportunity for applicants to seek a remedy in the form of a waiver from the United States Citizenship and Immigration Service (USCIS), if applicable? Why would the application package be sent back to USCIS with a so-called marker? The Consular Officers at US Missions abroad are adjudicators of visa applications and both the wide latitude of their discretion as well as the virtually non-reviewable nature of their factual findings are legal creations designed to lend efficiency to visa processing because the Consular Officers are in the best position to make factual determinations. Why send the petition back to USCIS with the “misrepresentation marker” at all? The USCIS is not in any discernably better position to make a determination regarding the veracity of the application. Therefore, DOS is failing to make an actual decision while simultaneously placing USCIS in a position where they cannot really claim to be able to better review the facts of the case as it was the Consular Officer who actually interviewed the applicant and adjudicated the posture of the overall application. It has been this blogger’s experience that visa applicants and petitioners are looking for some degree of certainty in the visa process. If an applicant is possibly legally inadmissible to the USA do not the notions of efficiency and equity seem to dictate quick adjudication of a finding of inadmissibility, if applicable, and visa denial, if appropriate? From the point of view of the inadmissible applicant the argument in favor of quick visa denial may possibly stem from the desire to seek a waiver in a timely manner thereafter.

Many of the Founding Fathers who drafted the United States Constitution were involved in the creation of legislation which would lead to the establishment of the Department of State. It would seem to this blogger as though these gentlemen did so because they recognized that America would need a governmental entity to deal with affairs of State, international trade matters, and Consular affairs so that average Americans could get on with their personal business and so that those of foreign origin would have an organ by which to entreat with the government of the United States of America. In an effort at providing more clarity on this topic it may be best to quote directly from Wikipedia:

The U.S. Constitution, drafted in Philadelphia, Pennsylvania in 1787 and ratified by the states the following year, gave the President the responsibility for the conduct of the nation’s foreign relations. It soon became clear, however, that an executive department was necessary to support the President in the conduct of the affairs of the new federal government.

The House of Representatives and Senate approved legislation to establish a Department of Foreign Affairs on July 21, 1789, and President Washington signed it into law on July 27, making the Department of Foreign Affairs the first Federal agency to be created under the new Constitution.[2] This legislation remains the basic law of the Department of State. In September 1789, additional legislation changed the name of the agency to the Department of State and assigned to it a variety of domestic duties.

These responsibilities grew to include management of the United States Mint, keeper of the Great Seal of the United States, and the taking of the census. President George Washington signed the new legislation on September 15. Most of these domestic duties of the Department of State were eventually turned over to various new Federal departments and agencies that were established during the 19th century. However, the Secretary of State still retains a few domestic responsibilities, such as being the keeper of the Great Seal and being the officer to whom a President or Vice-President of the United States wishing to resign must deliver an instrument in writing declaring the decision to resign.

Those wishing to better understand the history of the American State Department are strongly encouraged to click upon the hyperlinks noted above to read more on this engrossing topic.

Bearing the above legal opinion from the Federal Court for the District of Oregon’s Portland Division in mind, the reader may be interested to take note of the fact that some students of issues associated with Consular Processing of American visas are taking exception with some of the Department of State’s practices and proposing measures in an attempt to provide some sort of notification mechanism for complaints regarding Consular Officers at US Missions abroad seemingly aimed at curtailing what some feel are negative aspects of Consular discretion. To quote directly from Kenneth White in an article posted on ILW.com:

In contrast to other immigration-related agencies such as USCIS and CBP, the Department of State (“Department”) has no formal complaint system. The Department has a Customer Service Statement to Visa Applicants on its website,1 yet does not indicate how to pursue a complaint for a violation of the rights specified. The “How to Contact Us” page of the Department’s website mentions “inquiries” but not complaints. The Glossary page of the Travel.State.gov/visa section of the Department’s website indicates how to file a complaint with CBP, but not the State Department. Consular websites are silent on the issue of filing complaints.

In October 2009, the Department announced to the American Immigration Lawyers Association an address2 within the Visa Office to send complaints. However, the Visa Office does not investigate the complaints: it merely recites the consular officer’s version of events. Further, the mandate of the Department’s Office of Inspector General is limited to instances of fraud, waste, and mismanagement. It is abundantly clear that a genuine Complaint Procedure must be implemented.

The administration of this web log highly encourages readers to click on the above cited hyperlinks for further detailed information about consular processing and Mr. White’s opinions thereon. This blogger agreed with a great deal of the analysis presented in this article such as the author’s somewhat economic rationale in favor of at least the argument that some sort of complaint system may be beneficial to Consular processing, to quote further from the aforementioned posting:

dollars and sense – International visitors and students spend billions of dollars every year in the United States. Hundreds of thousands of American jobs are dependent on this spending by foreigners. Competition for the travel dollar is intense, with other countries not requiring visa interviews and utilizing visa procedures that are faster and cheaper than the US. Thus, it is incumbent upon the US government to ensure that consular officers treat applicants respectfully and professionally;

The American People in general, the States as well as all sectors of the Federal government should always be aware of the tremendous amount of economic activity that occurs as a result of foreign direct investment in the United States as well as tourist dollars spent in the United States of America. Streamlined visa processing and professional Consular staff are always a good idea, but this blogger did take some exception with at least one passage in the aforementioned article:

doctrine of consular nonreviewability – There is no formal administrative or judicial review of the overwhelming majority of visa decisions, meaning that consular officers are not accountable to applicants for the decisions they make. In the view of many, this non-accountability consciously or subconsciously emboldens consular officers, leading to a fiefdom mentality;

The administration of this blog highly recommends that readers click upon the above hyperlinks to read further from this detailed and well researched article so that all quotes cited above can be understood in context. This blogger would not say that he is unequivocally in favor of the Doctrine of Consular Non-Reviewability (also colloquially referred to as the Doctrine of “Consular Absolutism“) per se, as any time a significant amount of discretion is vested in a non-elected officer of the American government one should ponder the implications of such a state of affairs, but the argument for such a doctrine within the factual context of consular processing has to take into consideration the notion of “efficiency” which would seem to presuppose that there are some decisions which given the totality of the circumstances can only be efficiently made by an adjudicator on the ground in the applicant’s home country or country with appropriate consular jurisdiction. Presumably, there are unlikely to be a great many such adjudicators and those who do exist are likely to have a great many cases and/or applications to adjudicate. Therefore, there are reasonable arguments in favor of granting wide discretion to Consular officers in matters pertaining to factual adjudication of applications, but readers should not mistake this blogger to mean that he is in favor of unlimited discretion on the part of Consular Officers. The Doctrine of Consular Non-Reviewability provides that a great deal of deference will be paid to Consular Officers’ factual decisions by the US Courts, but that is not to say that the Courts do not have jurisdiction over visa denials especially when such denials are “facially illegitimate“. Bearing this in mind, as can be seen from the case above, American Courts are generally loathe to review visa denials as doing so could be viewed by some as a waste of Court resources and because it currently appears somewhat difficult for most Courts to sufficiently review a Consular Officer’s decision in a given case from a position that is qualitatively better than the unique perspective of the Officer on the ground in the country where the application is taking place. Proving that a Consular Officer’s decision is “facially illegitimate” could seem like a virtually insurmountable standard of proof, but fortunately it is not wholly impossible to receive judicial review of visa decisions as doing so would be a truly frightening concept from a due process perspective. That stated, having all Consular Officers’ decisions reviewed by the Court system seems equally as frightening if one considers how much time, energy, and resources would need to be expended in order to maintain such a docket.

To be clear, this blogger agrees with a great deal of Mr. Kenneth White’s analysis on many of the issues associated with Consular Processing, but where this blogger takes some degree of exception relates to the notion that officers have a “fiefdom” mentality. Although this blogger certainly cannot speak for everyone who has undergone Consular Processing, it has never been this blogger’s personal opinion that Consular Officers have a “fiefdom-mentality”. That stated, as an American Resident Abroad, this blogger must say that it does not seem like such a bad thing for American civil servants abroad, Consular Officers included, to take some pride in their position as a representative of America and the American people. As such, an Officer taking an interest in the efficiency and business of their US Embassy or US Consulate may also be prudent to take a personal interest in the overall impact of Post policies and procedures upon applicants, petitioners, and their families.

The notion of a Consular Complaint Box is something that should be pondered by interested parties long and hard especially in light of the fact that the Doctrine of Consular Non-Reviewability appears to still be as virtually unshakable as it ever has been. Therefore, the main question regarding a Consular Complaint Box that this blogger feels should be posed is: what benefit will the public receive from such an undertaking? If the Consular Officers continue to be endowed with virtually non-reviewable authority what good is it to be able to complain about it? What good would this do? This does not provide a tangible remedy to the applicant in the event of an adverse decision. Furthermore, would not the implementation of such a policy result in simply further paperwork for Department of State employees, but under such circumstances to no particularized end? In this blogger’s opinion, it is probably better that DOS use what resources it has with regard to Consular Processing to one end alone: efficiently adjudicating visa applications as that is clearly within their mandate. That stated, a complaint system to deter truly rude behavior as noted in Kenneth White’s article above may ultimately prove appropriate, but this blogger might make further suggestions. For example, how about something akin to an “Alien Miranda Warning”. Where American peace officers are required to Mirandize suspects so as to put them on constructive notice of rights like the right to remain silent and the right to an attorney it could prove beneficial for all concerned in the immigration process if Consular Officers made it clear that foreign applicants could seek the advice and counsel of licensed American attorneys regarding pending or prospective immigration matters pursuant to section 8 CFR 292.1, as amended. Such a suggestion should not be construed to be advocating attorney consultation regarding submission of complaints. Instead, attorneys may be best equipped to apprise prospective visa seekers of relevant immigration law as well as the regulations pertaining to application for various United States visa categories. One aspect of the issues surrounding Consular Processing that seems to be of little concern to the public-at-large involves doomed applications made by those who truly cannot overcome statutory presumptions such as that enshrined in section 214(b) of the United States Immigration and Nationality Act. The time and resources expended by Posts to adjudicate and deny visa applicants pursuant to section 214(b) of the INA and the time and resources needlessly expended by the applicants who are denied under this section of the INA could often be saved through effective assistance of counsel in providing advice and information regarding the likelihood of visa application approval based upon the unique facts of a given case. In short, perhaps informing applicants and petitioners of the issues associated with US Immigration rather than creating a mechanism to complain to what appears to be rather overworked Consular Officers is the appropriate course of action at this juncture. Hopefully, by thus informing concerned parties regarding US Immigration matters the negative overall impact from so-called “visa companies”, notarios, visa agents, and fake lawyers can be diminished to the benefit of the prospective immigrant community and the American People.

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7th April 2011

This blogger writes this post in transit between the Vientiane, Laos and Bangkok, Thailand having been retained to assist with Consular Processing at the Post in Laos. It came to this blogger’s attention while physically outside of the US Embassy compound that the Post in Vientiane will be closed on April the 8th for training purposes. This alone would not have concerned this blogger a great deal as United States Missions abroad routinely close local posts in order to use the closure as an opportunity to train personnel. Therefore, those reading this should not necessarily make the assumption that the Post in Vientiane is closing in anticipation of a government shutdown. That said, the forthcoming information, in conjunction with that noted above gave this blogger pause.

Bearing the above paragraph in mind, this blogger was also notified that the US Embassy in Bangkok has been calling prospective visa beneficiaries with upcoming visa interview appointments in order to attempt to reschedule pending visa interviews. It would appear that this is being done in response to the belief that a government shutdown is possibly imminent and should such a shutdown actually occur it would likely result in the closure of the various Immigrant Visa Units and Non-Immigrant Visa Units at US Missions abroad.

In a previous posting on this blog, the administration analyzed the possible ramifications of such a state of affairs and those reading this posting are encouraged to look at that post in order to learn more about this rather serious issue. The previous posting on this issue can be found at: Government Shutdown.

A few notes on the US Embassy in Vientiane, Laos; first, three words accurately describe this Post: courteous, professional, and efficient. The foreign-language officers are extremely helpful and the English-language officer aptly engaged in staying on top of what, to this blogger, appeared to be  substantial caseload and simultaneously dealing with applicants very politely all while checking documents and doing the routine due diligence required of Consular Officers stationed overseas.

At the time of this writing, it remains to be seen whether or not a government shutdown will actually occur, but should the government shutdown, then this could have a substantial impact upon US visa applications for visas such as the CR-1 visa, the K-1 visa, the IR-1 visa, and the K-3 visa. Meanwhile, processing of business visas such as the EB-5 visa and the L-1 visa could also be impacted by a shutdown of the United States government. There is some speculation as to whether or not the United States Citizenship and Immigration Service (USCIS) will shutdown as a result of possible government closure as USCIS is self-funded by petition and application fees (although that agency did receive money from the US government last year in order to cover a funding shortfall).

As this situation evolves, the administration of this blog will attempt to keep readers updated.

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17th March 2011

In recent months the likelihood of a government shutdown seems to be increasing as the politicians in the United States capital seem to be more polarized than ever. Meanwhile, some are arguing in favor of a shutdown (even going so far as to advocate for an extended period of governmental closure). At the same time, others argue against a shutdown. Regardless of one’s opinion either way, it seems possible that a shutdown may occur, and in the event that a shutdown does come to pass, those processing an immigration matter may be prudent to research the impact that a shutdown might have upon the immigration process.

The following was quoted directly from a recent posting on the website CaldwellTeaParty.org:

The next month will be marked by intense negotiations on the debt ceiling, and the GOP will then have to decide on a shutdown or a bipartisan budget deal with Kent Conrad and his allies.

The above citation most clearly and concisely sums up the current state of affairs regarding the possibility of a government shutdown. The administration encourages readers to click on the above links as this issue is quite complex. Those interested in understanding the ramifications of a government shutdown may be best informed by this administration quoting directly from Wikipedia:

A government shutdown occurs when a government discontinues providing services that are not considered “essential.” Typically, services that continue in spite of a shutdown include police, fire fighting, armed forces, utilities, air traffic management and corrections.

A shutdown can occur when a legislative body (including the legislative power of veto by the executive) cannot agree on a budget financing its government programs for a pending fiscal year. In the absence of appropriated funds, the government discontinues providing non-essential services at the beginning of the affected fiscal year. Government employees who provide essential services, often referred to as “essential employees”, are required to continue working.

Although the above citation clears up the issue of what constitutes a government shutdown, the question likely on the mind of those with foreign loved ones processing through the immigration system is: how would a government shutdown impact the processing of my loved one’s visa? The answer: a Federal government shutdown would result in a sort of “freeze” of most of the immigration apparatus as this falls within the bailiwick of the Federal government. Therefore, a Federal shutdown would likely result in little, if any, action being taken with regard to adjudication of visa applications  at each US Embassy or US Consulate abroad. For further insight it may be best to quote directly from a recent posting on the Diplopundit blog:

In 1995, all visa applications are walk-in.  Today, a good number of consular sections have online appointment systems. Which means, visa appointments will have to be canceled and rescheduled if there is a shutdown.  Consular sections may only be open for life and death emergencies. That means lost passport applications, reports of births abroad, adoption cases, notarials, etc. will all have to wait until the Federal government reopens.

The administration of this blog highly encourages readers to click on the above hyperlinks as the quotation above was found in a very interesting and detailed posting dealing with these issues.

Clearly, the ramifications of a government shutdown will be severe for those awaiting processing of a visa application. Meanwhile, it would appear as though USCIS will continue to operate as normal despite a possible shutdown. To quote directly from the website Martindale.com:

USCIS has announced that, because it is funded by filing fees, it should remain open during a government shutdown. The operations of the four Service Centers should remain largely unaffected. Local USCIS District Offices should also remain open.

Again, this blogger highly encourages readers to click on the hyperlinks above to learn more.

Notice that the above quotation uses the word should. This blogger only points this out as it goes to show how difficult it is to foretell what the impact of a government shutdown would be on the United States Citizenship and Immigration Service (USCIS) since that agency has attempted to remain self-funded through application fees. That said, the overall issue of government shutdown has yet to fully manifest itself, but that should not be construed to mean that it will not. In fact, those seeking American visas are likely to see an overall slowdown in the overall processing of cases as a result of a shutdown (should one actually occur, which remains to be seen).

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26th February 2011

The following was quoted directly from the official website of the United States Embassy in Kathmandu, Nepal:

The Embassy will be closed on all offical holidays.

No

American(A)/Nepali(N)

Date
Day of the Week
Holiday
1
(A)
Jan-17
Monday
2
(A)
Feb-21
Monday
3
(N)
Apr-14
Thursday
Nepali New Year
4
(N)
May-17
Tuesday
Buddha Jayanti
5
(A)
May-30
Monday
6
(A)
Jul-04
Monday
7
(A)
Sep-05
Monday
8
(N)
Oct-03
Monday
Phulpati (Dashain)
9
(N)
Oct-04
Tuesday
Maha Astami (Dashain)
10
(N)
Oct-05
Wednesday
Maha Nawami(Dashain)
11
N)
Oct-06
Thursday
Bijaya Dashami (Dashain)
12
(N)
Oct-07
Friday
Ekadashi (Dashain)
13
(A)
Oct-10
Monday
14
(N)
Oct-26
Wednesday
Laxmi Puja (Tihar)
15
(N)
Oct-27
Thursday
Gobardhan Puja (Tihar)
16
(N)
Oct-28
Friday
Bhaitika (Tihar)
17
(A)
Nov-11
Friday
18
(A)
Nov-24
Thursday
19
(A)
Dec-26
Monday
Christmas

Those wishing to visit the official website of the United States Embassy in Nepal please click HERE.

Those seeking services which can only be performed at a US Embassy or US Consulate abroad (such as issuance of a Consular Report of Birth Abroad, US Passport, or additional visa pages for a previously issued US Passport) are well advised to contact an American Citizen Services Section of a US Mission abroad with appropriate Consular jurisdiction. In some cases, it may be possible to set up an appointment with ACS in advance. Setting an appointment in advance can greatly streamline the processing of some requests.

Those seeking non-immigrant visas such as the US tourist visa (B-2 visa), US student visa (F-1 visa), US business visa (B-1 visa), or the US exchange visitor visa (J-1 visa) are likely to see their visa application processed by a non-immigrant visa unit of a US Mission abroad. Those seeking non-immigrant visa benefits should note that such applications are scrutinized pursuant to section 214(b) of the United States Immigration and Nationality Act (INA).

Those seeking immigrant visas for a foreign  relative (ex: CR-1 visa or IR-1 visa) are likely to see their visa application processed at an immigrant visa unit abroad following the approval of a US immigration petition at the United States Citizenship and Immigration Service (USCIS). It should be noted that visa applications for the K-1 visa, a non-immigrant US fiance visa, are processed in much the same manner as the immigrant visa categories as section 214(b) of the INA does not apply to K-1 visa applicants.

Those seeking visas such as the EB-5 visa (immigrant investor category) or the L-1 visa (intracompany transferees) are likely to see their visa application processed following approval of an immigration petition at the USCIS.

For related information please see: USCIS Estimated Processing Times.

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25th February 2011

It recently came to this blogger’s attention that the Department of State has proposed a final rule which would raise some of the costs and fees associated with the J-1 visa, a travel document designed for exchange visitors wishing to visit the United States of America. To quote directly from the Federal Register’s official website FederalRegister.gov:

§ 62.17 Fees and charges.

(a) Remittances. Fees prescribed within the framework of 31 U.S.C. 9701 must be submitted as directed by the Department and must be in the amount prescribed by law or regulation...

(b) Amounts of fees. The following fees are prescribed...

(1) For filing an application for program designation and/or redesignation (Form DS-3036)—$2,700.00…

(2) For filing an application for exchange visitor status changes (i.e., extension beyond the maximum duration, change of category, reinstatement, reinstatement-update, SEVIS status, ECFMG sponsorship authorization, and permission to issue)—$233.00.

The administration of this blog highly recommends that those interested in this issue click on the links above to read the Federal Register entry in its entirety.

Those who are unfamiliar with the J-1 visa should also note that this visa category is sometimes utilized by foreign nationals wishing to act as Au pairs in the United States of America.

Pursuant to the provisions of section 214(b) of the United States Immigration and Nationality Act (INA) Consular Officers at every US Embassy or US Consulate abroad are required to make the presumption that the applicant for a non-immigrant visa is actually an intending immigrant unless the applicant can provide evidence to overcome this presumption. This triggers a “strong ties” vs. “weak ties” analysis in the mind of the interviewing Consular officer. During such an analysis, the Consular officer will weigh the ties that the applicant has to their home country and compare these with the applicant’s ties to the United States. If the offficer feels that the applicant has stronger ties to a country abroad than to the USA, then the visa will likely be granted.

In some cases, applicants for a United States visa are denied. This would seem to happen more frequently in non-immigrant visa cases than immigrant visa cases, but this can, at least partially, be attributed to the stringent analysis that all Consular Officers must make during the adjudication of certain non-immigrant visa applications. Should a visa be denied, then it may be possible to request reconsideration of that decision. That said, appealing visa denials, especially denials pursuant to section 214(b), is difficult, if not impossible, pursuant to the doctrine of Consular Non-Reviewability (sometimes referred to as Consular Absolutism). This doctrine states that, with exceptions in rare and highly extreme circumstances, a Consular Officer’s discretion regarding the issuance of a visa is virtually absolute.

Some have pondered whether the provisions of section 214(b) applies to applicants for a K-1 visa. In point of fact, although the K-1 visa is a non-immigrant visa category similar to the J-1 visa; the K-1 visa applicant is not scrutinized subject to section 214(b) of the INA as the applicant for said US fiance visa is entitled to have immigrant intent at the time of the K-1 application.

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