Section 1.  Amendment to Executive Order 13597.  Executive Order 13597 of January 19, 2012 (Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness), is amended by deleting subsection (b)(ii) of section 2 of that order.

In order to better understand the importance of this amendment, it is important to quote directly from the aforementioned order, specifically the section being deleted:

(b) The Secretaries of State and Homeland Security, in consultation with the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Office of Management and Budget, and the heads of such agencies as appropriate, shall develop an implementation plan, within 60 days of the date of this order, describing actions to be undertaken, including those that build upon efforts underway, to achieve the following…

(ii) ensure that 80 percent of nonimmigrant visa applicants are interviewed within 3 weeks of receipt of application, recognizing that resource and security considerations and the need to ensure provision of consular services to U.S. citizens may dictate specific exceptions;

As the underlined portion noted above points out the specific section which has been deleted seems imply that fast non-immigrant visa processing is no longer a significant priority of the administration. Moreover, the President has specifically ordered Department of State personnel to disregard the previous administration’s clear policy of using best efforts to quickly process visa applications of those seeking non-immigrant visa benefits for the USA.

What type of visa applicants will most likely be affected by this policy change? Applicants for visas such as the B-1 visa (business visa), the B-2 visa (tourist visa), F-1 visa (student visa), J-1 visa (exchange visitor visa), as well as any other visa which is considered a non-immigrant visa (with the probable exception of so-called “dual intent visas“) will be directly impacted by this recent order. Concurrently, what will this mean in practical terms for processing of future visa applications? On the bright side, it takes time for policies to be enacted and thus result in a substantial impact on applicants. Furthermore, as the previous administration enacted policies to speed up non-immigrant visa processing and made practical provisions associated therewith it seems logical to infer that such measures are unlikely to be reversed quickly. Therefore, those seeking non-immigrant visa benefits in the near future are unlikely to be overwhelmingly adversely affected. That stated, those seeking similar benefits in a longer term context could see application processing times lagging compared to present time frames.

Each year, many Americans travel to a US Embassy or US Consulate in an effort to obtain services such as US Passport renewal, notary service, additional US Passport pages, and Consular Reports of Birth Abroad. Meanwhile, many foreign nationals from around the world must undergo Consular Processing in order to eventually be granted a US visa. Non-Immigrant visa units are tasked with adjudicating applications for non-immigrant visas such as the B-1/B-2 visa (US Tourist visa), F-1 visa (student visa), and the J-1 visa. Business visa units are responsible for the adjudication of business visa applications for travel documents such as the E-1 visa, the E-2 visa, the EB visa, the L-1 visa, the O-1 visa, and the H1-B visa. Finally, immigrant visa units have the responsibility for adjudicating applications for immigrant visas such as the IR-1 visa and the CR-1 visa. However, those seeking a K-1 visa (fiance visa) may also find themselves being interviewed by an officer with the immigrant visa unit as such travel documents are treated in much the same way as immigrant visas, notwithstanding the fact that K-1 visas are technically non-immigrant visas.

Those wishing to receive service from American Citizen Services at a US Embassy abroad or those wishing to have a visa application adjudictaed are encouraged to make an appointment online prior to traveling to the US Post.

For related information please see: US Embassy Thailand.

DATE                                 DAY                           HOLIDAY

January 2*                 (US)  Sunday  New Year’s Day
January 16*               (US)  Sunday  Martin Luther King, Jr. Day
February 15              (AF)  Tuesday  Liberation Day
February 16**           (AF)  Wednesday  Prophet’s Birthday
February 20*              (US)  Sunday  President’s Day
March 21                   (AF)  Monday  Nawrooz (Afghan New Year – 1390)
April 28                      (AF)  Thursday   Victory Day
May 29*                    (US)  Sunday  Memorial Day
July 3*                      (US)  Sunday  Independence Day
August 1**                (AF)  Monday  First Day or Ramadan
August 18***             (AF)  Thursday  Independence Day
Aug 31 – Sept 2**      (AF)  Wednesday – Friday Eid ul-Fitr
September 4*             (US)  Sunday  Labor Day
September 8***          (AF)  Thursday  Martyrdom of National Hero Day
October 9*                 (US)  Sunday  Columbus Day
November 6-8**          (AF)  Sunday – Tuesday Eid-e Qurban
November 10*             (US)  Thursday  Veteran’s Day
November 24               (US)  Thursday  Thanksgiving Day
December 6**             (AF)  Tuesday  10th of Muharram (Ashura)
December 25               (US)  Sunday  Christmas Day

Notes:

*    American holidays marked with an asterisk (*) are observed on a different day than in the US.

**  Afghan holidays marked with double asterisks (**) are based on the Islamic Calendar and depend on sightings of the moon.  As a holiday approaches, adjustments to this schedule may be made based on local practice and Afghan government announcements.

*** Afghan holidays marked with triple asterisks (***) are observed one day earlier.

Those wishing to visit the official homepage of the United States Embassy in Kabul are encouraged to click HERE.

It may sometimes prove necessary for an American Resident Abroad or an American traveling abroad to acquire documentation (US Passport, Consular Report of Birth Abroad, Notarized affidavit, etc.) which can only be obtained from an American Citizen Services section of a US Embassy or US Consulate overseas. Americans seeking such documentation are well advised to contact an American Citizen Services Section with appropriate Consular jurisdiction.

Those seeking an American non-immigrant visa (such as a B-1 visa, B-2 visa, J-1 visa, or F-1 visa) are likely to see their visa application processed at a non-immigrant visa section of a US Embassy, US Consulate, or American Institute abroad. Meanwhile, those seeking an immigrant visa such as a CR-1 visa or IR-1 visa (for purposes of Consular Processing, the K-1 visa; although a non-immigrant US fiance visa, is treated in much the same way as immigrant visa categories for processing purposes) are likely to see their visa application processed by an Immigrant Visa Unit abroad. Immigrant visas such as those noted above are likely to only be granted pursuant to an initial adjudication of an immigration petition at the United States Citizenship and Immigration Service (USCIS).

Those seeking visas such as the EB-5 visa or the L-1 visa are well advised to take note of the fact that it is unlikely that a visa application will be adjudicated by a US Post abroad until after an initial immigration petition is approved by USCIS.

For related information please see: Legal.

Effective December 1, 2010, various changes to immigrant visa services are as follows:

• Immigrant visa applicants whose appointments have not been scheduled through the National Visa Center (NVC) (i.e., immigrant visa petitions approved by the U.S. Citizenship and Immigrations Services Manila) may request a visa appointment by visiting the U.S. Embassy in Manila’s Visa Information and Appointment Service online at http://www.ustraveldocs.com/ph or by calling (632) 982-5555. The Visa Information and Appointment Service is open Monday through Friday, from 8:00 a.m. to 8:00 p.m. (Manila time), except on U.S. and Philippine holidays. Callers in the U.S. should call (214) 571-1600, from 7:00 p.m. to 7:00 a.m. (Eastern Standard Time). Callers are able to speak with an English-, Tagalog-, Ilocano- or Cebuano-speaking operator.
• Visa Information and Appointment Service representatives can provide information on visa appointment-related inquiries only. Inquiries on a specific case may be directed to the Immigrant Visa (IV) Unit by e-mail at IVManilaReplies@state.gov or by fax at (632) 301-2591. Petitioners and applicants may also call the IV Inquiry line at (632) 301-2000, extension 5184 or 5185 during normal business hours.
• Immigrant visa applicants who have been scheduled by the NVC for a visa appointment at the Embassy are required to visit the online appointment website to register their delivery address.
• K visa applicants who have been notified by the Embassy to prepare for their interview, must pay the visa application fee of $350 before they can request a visa appointment via the online appointment website or the Visa Call Center
  

It should be noted that the above quotation does not encompass all of the information provided upon the official website. Those interested in obtaining further information are encouraged to correspond directly with either an American immigration attorney or the US Embassy in the Philippines.

The Consular Processing phase is usually the last phase of the US visa process for those with immigrant intent. Although in certain cases, a 221g refusal may be issued if the adjudicating Consular Officer feels that further documentation is required to process an application. Furthermore, a visa application may be denied if it is found that a legal grounds of inadmissibility exists in a given case. Under such circumstances, it may be possible to remedy the denial through use of an I-601 waiver of inadmissibility.

In American family based visa cases, the Immigrant Visa Unit of a US Consulate abroad is responsible for the adjudication of a visa application for those seeking a K1 visa, K3 visa, CR-1 visa, or an IR-1 visa.  Those seeking a non-immigrant visa such as a B1 visa (US Business Visa), B2 visa (US Tourist Visa), F1 visa (US Student Visa), or J1 visa (Cultural Exchange Visa) must interview with an adjudicator at the Non-immigrant visa unit of the Post with Consular jurisdiction to adjudicate a visa application.

For related information please see: US Embassy Philippines.

The following have been designated as official holidays for 2010. The Consulate General will be closed to the public on these days.

A – American Holiday/L – Local Holiday

Notes: Four local holidays falling on Saturdays are not included in the 2010 holiday schedule (the day preceding Lunar New Year’s Day, February 13, the day following Good Friday, April 3, Labour Day, May 1, and Chung Yeung Festival, October 16).

Both Hong Kong and Macau are special administrative regions of the People’s Republic of China and have considerable autonomy under Chinese law. That said, those Americans interested in receiving services such as issuance of a Consular Report of Birth Abroad (CRBA), new US passport, new visa pages, or notary services, etc. are well advised to contact the American Citizen Services (ACS) Section of the nearest US Mission in an effort to schedule an appointment at ACS. Scheduling an appointment is an efficient way of streamlining services at an American Mission abroad as Consular Officers can prepare in advance to service a prospective customer’s needs.

Those interested in matters pertaining to United States Immigration are well advised to research the issue before contacting an American Mission abroad to set up an appointment for visa interview. Many non-immigrant visa categories (ex. F1 visa, B1 visa, B2 visa)  may not require the initial filing of a visa petition in the USA. However, non-immigrant visas such as the K1 visa and the K3 Visa do require the initial approval of a petition at the United States Citizenship and Immigration Service (USCIS). Also, immigrant visa categories such as the IR1 Visa and the CR1 Visa require the initial filing of a petition with USCIS. Although, some American Consulates and Embassies abroad may allow Direct Consular Filing (DCF) under certain limited circumstances.

For related information please see: US Visa China or EB-5 Visa China.

Those seeking a US tourist visa must subject themselves to an interview prior to visa issuance (and visa issuance assumes application approval which is not a foregone conclusion). At the visa interview the Consular Officer will adjudicate the merits of a tourist visa application. Section 214(b) of the United States Immigration and Nationality Act compels Consular Officers to deny a tourist visa application (or any non-immigrant visa application that requires 214b analysis such as a J1 visa, an F1 visa, or a B1 visa to name just a few relevant categories) if the officer finds that the applicant cannot overcome the presumption of immigrant intent contained within the provisions of section 214b. This presumption creates a sort of “strong ties” vs. “weak ties” analysis which is utilized by those adjudicating non-immigrant applications. Therefore, those with strong ties to Malaysia (or another country abroad) and weak ties to the USA will be more likely to be granted a tourist visa compared to those in circumstances which mitigate in favor of the presumption of immigrant intent.

In the past, there were some who attempted to utilize the B2 visa (the categorical classification of the US Visitor Visa) as a means of circumventing the comparatively long processing time for visas such as the K1 visa or the CR1 visa. It should be noted that applying for a non-immigrant visa while maintaining immigrant intent could be construed as visa fraud particularly where the applicant is seeking a Visitor Visa which specifically is meant for those wishing to travel to the USA for a relatively short holiday.

Those wishing to bring a Malaysian loved one to the United States for the purpose of marriage are well advised to seek either a US fiance visa (K1 visa) or a US Marriage Visa (if the couple is already married the duration of the marriage may dictate if the Malaysian spouse is eligible for a CR1 Visa or an IR1 visa). A marriage or intended marriage should never be entered into as a pretext. Therefore, so-called marriages of convenience should not be the basis of a visa petition. Those seeking US family visa benefits are well advised to only seek visa benefits based upon a genuine bona fide relationship.

For related information please see: US Visa Lao Girlfriend of K1 Visa Malaysia.

Relatively few people (Americans included) are aware that United States Immigration law imposes a rather stringent statutory presumption that Consular Officers must adhere to when adjudicating non-immigrant visa applications. Under section 214(b) of the United States Immigration and Nationality Act a Consular Officer adjudicating a non-immigrant visa application abroad must refuse to issue the visa if the applicant cannot overcome the presumption that they are intending to immigrate to the United States of America. This creates a sort of “strong ties” vs. “weak ties” analysis whereby the Officer adjudicating the application can only grant the requested visa if the applicant can show sufficient “strong ties” to their home country and “weak ties” to the USA. This presumption is not easily overcome under the best of circumstances, but when an officer takes into account the fact that a non-immigrant visa applicant has an American boyfriend or girlfriend, the presumption could become virtually insurmountable without strong documentation in support of issuance.

Unfortunately, in the past there have been instances of couples attempting to utilize the US tourist visa for the purpose of circumventing the relatively long processing times associated with applying for US family immigration benefits. It should be noted that misrepresenting one’s intentions on a visa application could be construed as visa fraud by American authorities. A finding that fraud has occurred could result in civil and criminal sanctions for both the applicant and the American significant other.

Those couples wishing to obtain a family immigration benefit through use of an American fiance visa (K1 visa) or a spousal visa (K3 Visa in limited cases or a classic CR1 Visa or IR1 Visa in the vast majority of cases) should bear in mind that a visa petition should only be brought if the couple has a bona fide relationship. In short: a couple should not get married or file for a fiance visa if they do not have a bona fide relationship. A pretextual relationship, or so-called “marriage of convenience”, should not be used as a basis for submitting an application for a US visa.

For related information please see: US Visa Indonesian Girlfriend or K1 Visa Burma.

Many Americans are unfamiliar with section 214 (b) of the United States Immigration and Nationality Act. This legislation creates a legal presumption that an American Consular Officer must take into consideration when adjudicating non-immigrant visa applications. The section requires the Consular Officer to presume that the applicant for a non-immigrant visa is actually an undisclosed intending immigrant unless the applicant can produce strong evidence to the contrary. This creates a so-called “strong ties” vs. “weak ties” analysis whereby the applicant must show “strong ties” to their native country, or another country outside of the United States of America and “weak ties” to the USA. Therefore, the Indonesian girlfriend (or boyfriend) of an American Citizen (or Lawful Permanent Resident) must show that they have strong ties to Indonesia and weak ties to the USA. In general, the mere existence of an American significant other is enough to mitigate against many “strong ties” outside of the USA and thereby lead to a denial of an American B2 tourist visa application.

The reason for this state of affairs is first due to the fact that the the presumption contained in section 214b is quite stringent when applied to the facts of many individual cases. Many who are rejected under this provision feel that the denial is some sort of personal rejection. Nothing could be further from the reality of the situation as a US Consulate or US Embassy will routinely issue these denials for no reason other than the application of relevant law. Meanwhile, there are some who speculate that part of the reason for the relative increase in these denials over the course of the past 10 years is due in part to the tragedy of 9/11 which lead to increased scrutiny of all immigrant and non-immigrant visa applications. Furthermore, there have been those who inappropriately use the US tourist visa to circumvent the comparatively longer processing time associated with a US fiance visa (K1 visa) or a US Marriage Visa (K3 Visa, CR1 Visa, IR1 Visa).

Those who have a foreign girlfriend (or boyfriend) and can show genuine ties to countries abroad may still be able to get a US Tourist Visa. That said, this post is merely meant to explain the relatively higher denial rate that seems to exist in B2 visa applications for the significant others of Americans. Those with a bona fide relationship and genuine intentions may be able to obtain an American fiance visa or marriage visa, but it should be noted that no one should ever enter into a relationship strictly to obtain visa benefits. A family based visa application should be based upon a bona fide relationship.

For related information please see: US Visa Cambodian Girlfriend or K1 Visa Indonesia.

For those who are unfamiliar with the American Immigration process or the visa application process, the United States offers a recreational visa for foreign nationals under the category B-2. The B2 visa is highly sought after by those wishing to travel to the United States for recreational purposes. That said, the US Tourist visa application, and virtually all non-immigrant visa applications, requires that the applicant have true Non-Immigrant intent when traveling to the United States of America. Furthermore, pursuant to language contained in section 214(b) of the United States Immigration and Nationality Act a Consular Officer is required to presume that all non-immigrant visa applicants are actually intending immigrants unless evidence can be produced to the contrary. This creates a so-called “strong ties” vs. “weak ties” analysis whereby an applicant must show that he or she has strong ties to, in this scenario, Cambodia (or another country outside of the USA) and weak ties to the United States. Oftentimes, the mere existence of an American Citizen significant other is a mitigating factor in favor of denial. Therefore, those boyfriends and girlfriends of US Citizens applying for US tourist visas find their applications rejected pursuant to 214b.

Those who wish to reside in the United States should not apply for a Tourist visa. However, in the past, some tried to use the US tourist visa as a method of circumventing the comparatively longer processing times of the K1 visa (for foreign fiancees) or the Immigrant visas (for the spouses of US Citizens or Lawful Permanent Residents). Under US Immigration law it is illegal to intentionally mislead an interviewing officer when applying for a visa. Therefore, those who apply for a B2 visa (or an F1 visa, J1 visa, or B1 visa for that matter) with the preconceived intention to use it to immigrate to the US could be severely penalized if the deception is discovered. For this reason, those who wish to bring a foreign loved one to the United States to reside are well advised to apply for a family based immigration petition rather than attempt to deceive Consular Officers abroad.

Even if a US Citizen’s girlfriend or boyfriend obtains a US visa, this does not necessarily mean that they will gain entry into the United States. In recent years, this author has noted that the United States Customs and Border Protection (USCBP) Service has been increasingly vigilant in watching for those “immigrants” traveling to the United States without proper documentation. Pursuant to legislation passed in the 1990s, USCBP is authorized to place those traveling to the US on tourist visas with undisclosed immigrant intent into expedited removal. Those who are removed from the United States in this manner may be ineligible to return for a substantial period of time.

Those seeking non-immigrant visa benefits are well advised to be clear and honest on a visa application. While those who wish to bring a fiance or spouse to the USA to reside should seriously consider the status of their relationship and submit an application or petition that accurately reflects the parties’ intentions.

For related information please see: US Visa Thai Girlfriend or K1 Visa Cambodia.

Summary: This cable provides additional information on implementation of the Travel Promotion Act of 2009 (TPA) and fee collection for the Electronic System for Travel Authorization (ESTA), requests posts to engage in outreach, and provides talking points. End summary.

3. As previously reported (Ref a), President Obama signed the TPA into law on March 4, 2010. The TPA will create a partnership between the U.S. government and the private sector to market the United States as a travel destination for international visitors. Fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.

4. On August 6, 2010, DHS announced an interim final rule that amends DHS regulations to require travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14.00, with $4.00 to recover the cost of administering the ESTA system and $10.00 as mandated in the TPA.

5. The Department is working with DHS and the Department of Commerce to notify foreign and domestic media, the travel industry, and other stakeholders about this change. The Department requests that consular officers in VWP countries, in coordination with DHS and Commerce representatives, meet with host government officials, and airline, tourism, and other stakeholders to inform them of the new fee provisions connected to ESTA. Please contact the ESTA Program Management Office [redacted] for outreach materials or requests for ESTA representatives to travel in-country. They will do their best to accommodate. This cable is being sent as an ALDAC to facilitate all posts answering questions from citizens of VWP countries and the general public.

6. The Department supports the TPA goal of attracting international visitors to the United States. Our greatest diplomatic tool for sharing American values is America itself, and we recognize the critical importance of travel and tourism to our economy and job creation. The Department looks forward to working with the Corporation for Travel Promotion to ensure that prospective visitors to the United States receive comprehensive, up-to-date information on travel documents and requirements for entry.

The Travel Promotion Act mentioned above will likely have significant consequences for those foreign nationals traveling to the United States pursuant to the conditions of the visa waiver program. Therefore, those originating in a country that has visa-free travel privileges to the USA may be wise to research both the US Visa Waiver Program and the ESTA program. Fortunately, the aforementioned cable also included a Frequently Asked Questions Section. The following FAQ’s were quoted from the previously mentioned DOS cable distributed by AILA:

Q. What is the new fee charged to travelers?
A. It is $14.00. Since the implementation of ESTA, DHS has had discretion to charge a fee to cover administrative costs. DHA determined that cost to be $4.00 per registration. The TPA fee adds an additional $10.00.

Q. When will the fee go into effect?
A. ESTA registrations on or after September 8, 2010, will be subject to the fee.

Q. How do travelers pay the fee?
A. At this time, payment is required through the following credit cards: Mastercard, Visa, American Express, and Discover. Payments can also be made with a debit card that holds the Visa or Mastercard symbol. Please check with your bank on the compatibility of your debit card. We are continuing to explore other payment measures. The ESTA registration form already in use will walk users through the payment process.

Q. What types of privacy protection exist on the website?
A. “Pay.gov” uses advanced encryption to protect transactions while applicants are logged in. When accessing a profile, any account numbers entered will be masked on-screen.

Q. How long are ESTA approvals valid?
A. Each approved ESTA application will be valid for a period of two years unless the traveler’s passport expires sooner. It allows for multiple visits to the United States within that application.

Q. If I have a valid ESTA, will I have to re-register when the new fees go into effect?
A. No, existing ESTA registrations remain valid for travel through their expiration date.

Q. Is ESTA approval like a visa?
A. An ESTA approval is not a visa under U.S. law, nor does it confer the same benefits as a visa.

Q. Will this attract more international visitors to the United States?
A. Oxford Economics, a leading economic forecasting consultancy, estimates that the TPA program will generate $4 billion in new visitor spending, and lead to the creation of 40,000 new jobs.

Q. Why do VWP countries have to fund this travel promotion program through ESTA fees?
A. Some countries fund tourism promotion through airline or hotel taxes. The Travel Promotion Act legislation specified that the U.S. government fund this program through a $10 fee added to ESTA registration.

8. The following are Visa Waiver Program member countries: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom…

At the time of this writing, the Kingdom of Thailand is not a member of the United States Visa Waiver Program. Therefore, ESTA rules have little impact upon most Thai nationals. That said, as pointed out in previous blog posts, relevant regulations may require those who have been issued a 221g refusal to disclose this refusal as a “visa denial” for purposes of travel to the USA on the Visa Waiver Program. It would seem that at the time of this writing the Department of State and the United States Customs and Border Protection Service (USCBP), an agency under the authority of the US Department of Homeland Security, view 221(G) refusals differently. Those who have been issued a 221g who still wish to travel to the United States may be wise to contact a US lawyer in order to deal with a pending 221g refusal.

Those who are from countries that do not participate in the Visa Waiver Program should seek a US visa before traveling to the USA. For information about the US Tourist Visa please see: B2 visa.