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.

When determining whether or not an American spouse or fiance can support a foreign spouse or fiance the adjudicating officer will first look to the American’s adjusted annual income on his or her income tax return. In order to meet the minimum eligibility requirements the American spouse or fiance must earn 125% of the federal poverty guidelines for a family of their size. The current federal poverty guidelines for the 48 contiguous States as well as Alaska and Hawaii can be found below (as quoted from the official website of Housing and Human Services):

SOURCE: Federal Register, Vol. 78, No. 16, January 24, 2013, pp. 5182-5183

Those wishing to ascertain whether they are eligible to sponsor their foreign fiance or spouse should use the above figures to determine 125% of the poverty guidelines for a family of their size (including the foreign family member(s)). It should be noted that active duty members of the United States Armed Forces must only meet 100% of the federal poverty guidelines in order to be eligible to sponsor a foreign fiance or spouse. Those unable to meet the 125% income level noted above may be able to use assets to offset the difference between their level of income and the 125% requirement. For affidavit of support purposes, a prospective sponsor of a Thai fiancee or wife can make up the difference in income between what is actually earned and what is legally required by providing evidence of assets which equal 5 times the difference between what a prospective sponsor earns and the level required by law. Thus, if a prospective sponsor fall short of the 125% level by 5,000 USD, then the prospective sponsor can show proof of assets in the amount of 25,000 USD in order to overcome the disparity.

It may also be possible to use the income and assets of a joint sponsor if the person petitioning for the foreign national’s visa is unable to overcome the income and asset requirements. It should be noted that only the I-864 affidavit of support (that used in cases involving the application for a CR-1 visa or an IR-1 visa) may utilize a joint sponsor. Those seeking a K-1 visa are not eligible to use a joint sponsor, therefore, only the American Citizen fiance’s income and assets will be adjudicated during the K1 visa application process. In the past, Consular Officers at the US Embassy in Bangkok were known to accept joint sponsors in K-1 visa application adjudications. However, as of the time of this writing that practice has ceased.

Those interested in learning more on these topics are encouraged to click on the following link: Affidavit of Support.

The United States has apologised for controversial remarks made by a US diplomat who spoke of “dark and dirty” Indians, calling the comments “inappropriate”. US Vice-Consul Maureen Chao told Indian students on Friday that her “skin became dirty and dark like the Tamilians” after a long train journey, according to Indian media — referring to people from the southern state of Tamil Nadu. During her speech in the Tamil Nadu capital, Chennai, Chao was quoted as saying: “I was on a 24-hour train trip from Delhi to (the eastern Indian state of) Orissa. “But, after 72 hours, the train still did not reach the destination… and my skin became dirty and dark like the Tamilians.” Following her speech, the US Consulate in Chennai on Saturday issued a “statement of apology”. “During the speech Ms. Chao made an inappropriate comment. Ms. Chao deeply regrets if her unfortunate remarks offended anyone, as that was certainly not her intent,” the US Consulate said on its website…”As US Secretary of State Hillary Clinton recently noted, the US-India partnership is based on our shared values of democracy, liberty, and respect for religious and cultural diversity,” the US consulate added…

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks noted above to read this article in detail.

Although the comments noted above are unfortunate, inappropriate, and downright impolite it should be noted that mistakes do happen. Notwithstanding the fact that the individual in question is a civil servant of the United States government she is also human and therefore not immune from making mistakes. It is admirable that the US Consulate noted above took the opportunity to quickly and maturely respond to the comments and issue an apology. Hopefully the whole situation will stand as an example to future American State Department personnel.

In news related to the continuing struggle for LGBT equality, it recently came to this blogger’s attention that there has been further analysis of the factual situation surrounding the story of a same sex married couple who may be compelled to separate due to enforcement of the so-called “Defense of Marriage Act” (DOMA). In order to provide further information it is necessary to quote directly from the official website of CNN, CNN.com:

Anthony Makk was trying to become a permanent U.S. resident – like many heterosexual couples do – so he could stay with his loved one who he married seven years ago in Massachusetts. Makk, who has been with Bradford Wells for 19 years, is also doing it because he is a caregiver for his husband who has AIDS.

Frequent readers of this web log may recall that the Commonwealth of Massachusetts has allowed for the legalization/solemnization of same sex marriage through intra-State licensure protocols. Notwithstanding the fact that this sovereign American State and other jurisdictions such as the State of New York have legalized such unions they are neither recognized nor granted routine Full Faith and Credit pursuant to the United States Constitution’s Full Faith and Credit Clause. There are currently cases pending in the US Courts which address these issues, but a final resolution has yet to come to fruition. To continue quoting from the aforementioned article on CNN.com:

..But the federal government denied his final appeal two weeks ago on the basis of the Defense of Marriage Act which doesn’t recognize their same-sex marriage. “The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship,” the government’s ruling said. “For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman.” The U.S. Department of Citizenship and Immigration Services echoed the sentiment, saying as long as DOMA was in place, they will continue to operate under that standard…The couple is calling for the U.S. government to step in and allow Makk to stay and care for Wells. The couple said they feel the federal government is doing everything to keep them from being able to do what any other heterosexual couple already can do. “I feel that my government is trying to destroy my marriage,” Wells said. “And my government is trying to impose a great deal of harm on my life for no reason whatsoever. I feel like I’m being bullied by my government.” But the fight to stay together has strengthened the couple’s bond, Makk said. “We made a big commitment to each other and the harder they make it, the stronger our relationship is.” What’s more frustrating for Wells, who says that the couple never intended for this to become a public debacle, is that they make sure to do everything that all married couples are required to do – like pay joint taxes, but get none of the benefits. “We have all the responsibilities, do the penalty parts of marriage, but then when it gets to the same benefits, we’re told no, you don’t qualify,” Wells said. “The government has decided they don’t like who I marry. For the federal government to say this isn’t a marriage – it’s degrading.” Still, the couple holds out hope. Hope that President Obama could step in to the battle that’s already raging in Congress over a repeal of DOMA, which he said he would support…

This blogger asks readers to click upon the relevant hyperlinks noted above to read this article in detail.

The first question this blogger would pose under the circumstances is: Could the Attorney-General of the United States not issue a hold on this deportation in much the same way that a hold was placed on the removal of the New Jersey same sex civil union partner of an American Citizen? Notwithstanding the fact that the provisions of DOMA preclude the accordance of American visa benefits such as the K-1 visa, the CR-1 visa, or the IR-1 visa to same sex couples the American Attorney-General has rescinded a deportation apparently to scrutinize the Constitutional issues at play where a State has licensed a marital union. Under the circumstances in this case it seems only prudent to infer that there may be even more significant Constitutional issues because the underlying union is a same sex marriage and not a civil union. As noted previously on this blog, it is this blogger’s opinion that once a State sovereign has exercised their prerogatives with respect to the licensure of marriage, then the imprimatur of that State’s recognition of the underlying marriage should be accorded both inter-State Full Faith and Credit and federal recognition. Under the current situation with respect to DOMA, the States’ Rights are being marginalized and the American Citizenry’s individual liberties are being infringed.

Meanwhile, American legislators such as Representative Jerrold Nadler have introduced legislation such as the Uniting American Families Act (UAFA) to directly address the current discrimination being imposed upon same sex bi-national couples. Furthermore, the provisions of the Respect for Marriage Act would seem to deal with the Full Faith and Credit issue by according same sex marriages performed in those States which legalize and/or solemnize such unions with federal “certainty“. How this issue will ultimately be resolved in the American Congress or Courts remains to be seen.

–Benjamin Walter Hart

For related information please see: Consular Processing.

For information pertaining to legal services in Southeast Asia please see: Legal.

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.

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.

There is some debate as to the legal ramifications of a 221g especially in the context of the United States Visa Waiver Program. The American visa waiver program allows certain foreign nationals to enter the USA without a visa provided those individuals register on the Electronic System for Travel Authorization (ESTA). Although Cambodia is not currently a participating country in the Visa Waiver program it should be noted that a 221g refusal issued by a US Consulate or US Embassy abroad should be disclosed in the ESTA system when seeking travel authorization online. Therefore, a 221g refusal is effectively treated as a “denial” by the Department of Homeland Security which should be noted by anyone seeking American immigration benefits at an American Mission abroad since such a development could have an adverse impact upon one options at a later date.

Many are under the mistaken impression that a 221(g) refusal cannot be remedied. In point of fact, this is not the case as some 221g refusals simply require further documentation before a Consular Officer is prepared to make an adjudication in the underlying application. That said, in some cases, a 221g could evolve into a legal finding of inadmissibility which is an outright visa denial. In such cases, a visa applicant may be able to have the legal grounds of inadmissibility waived through use of an I-601 waiver of inadmissibility. That said, such waivers are adjudicated by the United States Citizenship and Immigration Service under an “extreme hardship” standard of review. This “extreme hardship” standard can be difficult to overcome for some. In any event, many couples find that the assistance of an American attorney can be beneficial during the US visa process or the I-601 waiver process as such an individual can provide insight into the process and advocate on behalf of the petitioner and beneficiary. Furthermore, some find that an attorney’s assistance can result in smoother overall processing of visa applications as such an individual can foresee issues which may arise in a given case and attempt to deal with such issues before they become a problem.

Receiving a 221g refusal letter after the visa interview can be worrying, but in some cases the issue can be resolved through better understanding of the adjudication process and relevant United States Immigration law. Those who receive a 221g refusal at the US Embassy in Cambodia are likely required to follow up within 1 year of issuance lest the visa application be deemed to have been abandoned.

For related information please see: US Visa Cambodia.

The first notable policy outlined in the Cable deals with the relationship between Immigration attorneys and Consular Officers:

“The relationship between consular officers and immigration attorneys can be productive. Consular officers can often learn a great deal from a conscientious attorney, and vice versa.”

There is no doubt in this author’s mind that this is true. Consular officers provide a great deal of assistance when processing visa applications. More than anything, they can provide insight into the underlying policy reasons behind failure to issue a visa. In many cases, the reason for delay is due to a failure to provide pertinent information that the client did not believe was necessary to adjudicate the petition.

The Cable goes further:

“Consular officers should not pass judgment on applicants who choose to employ the services of an attorney. Some people are more comfortable working through an attorney no matter how straightforward or simple the visa case may appear to the consular officer.”

This is one section of the cable that Consular Officers seem to have taken to heart. This author has never felt that Consular Officers look askance at applications where the petitioner or beneficiary has retained an attorney to assist in preparation. With regard to case preparation, the Cable goes further:

“One important service that attorneys provide to their clients is making sure that forms are correctly completed and necessary supporting documentation presented at the time of the interview.”

Consular Officers are required to adjudicate petitions and, if the petitions receive approval, issue visas. In this author’s experience their primary goal seems to be efficient processing of bona fide petitions. Immigration attorneys can enhance the process through documentation compilation and foreknowledge of relevant issues. Those issues that may effect the outcome of a case can be dealt with in such a way that case processing proceeds smoothly. In many ways the Consulate forestalls unforeseen delays through promulgation of consistent rules:

“Posts that establish clear and consistent procedures for responding to attorney inquiries save time and resources in the long run. As with Congressional correspondence, the fuller the explanation of a refusal or a 221(g) decision, the more you will help yourself.”

It has been this author’s experience that Consular staff are very upfront about what they are seeking in a given case. Further, the role of an attorney is clearly defined by the US Embassy Thailand as no one is allowed to be present during the visa interview, this includes American fiances and husbands in K1 visa and K3 visa cases. This being said, attorneys are currently permitted to submit 221(g) follow-up documentation where necessary.

In the years since the distribution of “99 State,” it is this author’s opinion that Consular Officer-Immigration attorney relations are professional, efficient, and cordial and there is no reason to believe that this will not continue to be the case.

The Doctrine of Consular Absolutism basically states that the factual decisions of Consular Officers are not subject to appeal. This legal notion is also  called Consular Nonreviewability. In the case of Bustamante v. Mukasey the 9th Circuit Court of appeals concisely summed up the limited scope of judicial review that will be granted with regard to a Consular decisions in visa matters:

“[A] U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed…”

Showing that a Consular Officer’s reason for their decision is facially illegitimate or not bona fide is extremely difficult, if not, practically impossible. As a result, their decisions regarding visa issuance are essentially final.

Many wonder why Consuls are accorded such broad powers. The reason these officers are granted this ability to make unappealable decisions is based upon the policy argument that a Consular Officer is in the absolute best position to adjudicate the facts of a given visa application. In a way, Consular officers and the Doctrine of Consular Absolutism are the first lines of defense when it comes to preventing the entry of unqualified aliens into the United States of America.  They are also the first line of defense when it comes to determining fraud, misrepresentation, possible terrorist suspects, and facts which could result in a finding of legal inadmissibility. Therefore, Consular officers must be provided with the authority to deny visa applications that they find either suspicious or deficient.

This is why in visa cases involving family members it is very important to prove up the bona fides of the underlying relationship. A K1 visa application is based upon a relationship between a US Citizen and a foreign national. Proving the bona fides of this relationship can be crucial to a favorable decision. This is also true for marriage visas such as the K3 visa and the CR1 visa.

Although, some have questioned the wisdom of granting such broad powers the prerogatives exercised by Consular officers are not abused as those in the Consular Corps perform their duties efficiently, courteously, and thoughtfully. That being said, there are cases where the applicant must be denied for factual reasons. The only way to facilitate this necessity is to provide Consular Officers with a wide degree of discretion in adjudicating visa applications.

Another very valid policy argument for the retention of the Doctrine of Consular Absolutism (Consular Nonreviewability) is based upon the notion that allowing for an appeals process in US visa cases would create a tremendous administrative burden upon the Department of State specifically and the United States government generally. Therefore, it is unlikely that this situation will change in the near future.