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Posts Tagged ‘Consular Processing’
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.
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.
6th March 2011
US Embassy Baghdad, Iraq: Holiday Closing Schedule 2011
Posted by : admin
The following holiday closing schedule was quoted directly from the official website of the United States Embassy in Baghdad, Iraq:
Date |
Day |
Holiday |
Country |
January 2 | Sunday | New Year’s Day | US** |
January 16 | Sunday | Martin Luther King, Jr. Birthday | US** |
February 17 | Thursday | Prophet’s Birthday | Iraq** |
February 20 | Sunday | President’s Day | US** |
May 1 | Sunday | Labor Day | Iraq |
May 29 | Sunday | Memorial Day | US** |
July 4 | Monday | Independence Day | US |
July 14 | Thursday | Republic Day | Iraq |
August 30 – September 1 | Wednesday | Eid Al-Fitr | Iraq* |
September 4 | Sunday | Labor Day | US** |
October 9 | Sunday | Columbus Day | US** |
November 6 | Sunday | Eid Al Adha | Iraq* |
November 10 | Thursday | Veterans’ Day | US |
November 24 | Thursday | Thanksgiving | US |
November 26 | Saturday | Islamic New Year | Iraq* |
December 25 | Sunday | Christmas | US** |
* This Iraqi holiday is determined by the lunar cycle. Exact dates must be confirmed by local authorities and are subject to change.
** In keeping with the spirit of the Monday Holiday Bill, the intention of which is to provide three-day holiday weekends, U.S. holidays covered by the Monday Holiday Bill will be observed on Sundays.
The Embassy will consider moving the observation date of local holidays (religious and secular) falling on weekends in the event that the Iraqi Government issues guidance mandating that the private and public sectors change the observance date.
Those interested in visiting the official website of the United States Embassy in Baghdad, Iraq please click HERE.
Those seeking services which can only be provided by staff at a US Embassy or US Consulate abroad (such as issuance of a Consular Report of Birth Abroad, US Passport, or issuance of new pages for a previously issued US Passport) may find it efficient to attempt to set an appointment with the American Citizen Services Section of a US Post prior to arrival at said post. It may be possible under some circumstances to set an appointment online prior to traveling to the post. Setting an appointment online can greatly streamline the processing of requests at US Posts abroad.
Those seeking a US tourist visa (B-2 visa), US business visa (B-1 visa), US Exchange visitor visa (J-1 visa), or a US student visa (F-1 visa) are likely to see their visa application processed by a Non-immigrant visa unit at a US Embassy or US Consulate abroad. It should be noted that such visa applications are scrutinized pursuant to section 214(b) of the United States Immigration and Nationality Act.
Those Americans seeking an immigrant visa for a foreign spouse (such as the CR-1 visa and the IR-1 visa) are likely to see their loved one’s visa application processed at an Immigrant Visa Unit abroad. It should be noted that for processing purposes the K-1 visa (a non-immigrant US fiance visa) is treated in much the same manner as the Immigrant visa categories.
Those seeking visas such as the L-1 visa for intra-company transferees or the EB-5 visa for immigrant investors are likely to only see a visa application processed pursuant to an approved immigration petition at the United States Citizenship and Immigration Service (USCIS).
4th December 2010
Those who read this blog on a regular basis will no doubt realize that when new information regarding Consular processing comes out this administration tries to post it in an effort to provide insight to those processing a visa application through the relevant Post. It recently came to this blogger’s attention that the United States Embassy in Manila, Philippines is changing their protocols for Immigrant visa processing. The following is a brief quotation from the official website of the US Embassy in Manila:
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 [email protected] 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.
1st December 2010
221g and Visa Denial at the US Embassy in Cambodia
Posted by : admin
Those who frequently read this blog are likely to note that we frequently discuss issues surrounding Consular processing of US visa applications. In some cases, a visa applicant is refused a visa, but issued what is commonly referred to as a 221(g) form. The term “221g” refers to section 221(g) of the United States Immigration and Nationality Act. Under this provision of the Immigration and Nationality Act, a Consular Officer adjudicating a visa application may refuse to issue a visa if the adjudicating Consular officer finds that the application is somehow deficient of documentation. Consular Officers are basically tasked with the responsibility of conducting due diligence regarding a visa applicant’s subjective intentions. Therefore, in a K1 visa interview the Consular Officer may be concerned with the Cambodian applicant’s subjective intentions regarding the K1 visa petitioner.
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.
26th November 2010
“Culling of Visa Cases” and American Immigration Attorney Assistance
Posted by : admin
Recently, this blogger was reading a report from the Department of State regarding the statistics pertaining to the United States Visa Process. To quote the report directly:
Immigrant visa issuances during fiscal year 2011 are limited by the terms of INA 201 to no more than 226,000 in the family-sponsored preferences and 140,000 in the employment-based preferences. (Visas for “Immediate Relatives” – i.e., spouses, unmarried children under the age of 21 years, and parents – of U.S. citizens are not subject to numerical limitation, however.) It should by no means be assumed that once an applicant is registered, the case is then continually included in the waiting list totals unless and until a visa is issued. The consular procedures mandate a regular culling of visa cases to remove from the count those unlikely to see further action, so that totals are not unreasonably inflated. If, for example, a consular post receives no response within one year from an applicant to whom the visa application instruction letter (i.e., the consular “Packet 3″ letter) is sent when the movement of the visa availability cutoff date indicates a visa may become available within a reasonable time frame, the case is considered “inactive” under the consular procedures and is no longer included in waiting list totals.
It has be routinely noted on this blog and elsewhere online that the American visa process is somewhat restrictive when it comes to non-immediate relative petitions as there are limited numbers of visas available to the immediate family of American lawful permanent residents and the non-immediate relatives of American Citizens. That said, this was not the portion of the above citation that this author felt was noteworthy. Instead, a central issue for this blogger is that of “culling visa cases”. For those who do not have a great deal of experience dealing with US Immigration matters it may seem rather heavy handed to simply cancel a visa file. However, it should be pointed out that a US Embassy or US Consulate abroad is responsible for reviewing, adjudicating, and processing a large number of visa applications each year. Therefore, in the name of organization and efficiency it is often necessary for cases to be removed from the processing queue lest the whole system become overloaded and inefficient.
Those wishing to obtain a visa to the USA should be cognizant of the fact that failure to follow up with the US Mission with Consular jurisdiction could result in the canceling of one’s visa application thereby resulting in an end to the entire proceeding. This is also true for those who receive a 221g denial as failure to respond within one year of the denial’s issuance could result in the culling of the case file.
Some find that the assistance of an American Immigration attorney can be highly beneficial as such an individual can provide insight into and assistance with the United States visa process. Furthermore, American attorneys working overseas can provide real time assistance with Consular processing at American Missions abroad.
For related information please see: Consular Processing.
23rd November 2010
The administrator of this blog recently came across a press release from the United States Mission in India. The following is quoted directly from the press release as distributed by the American Immigration Lawyers Association (AILA):
New Delhi – In an effort to make the visa application process more convenient for all Indians, the U.S. Embassy in New Delhi and Consulates General in Mumbai, Chennai, Kolkata and Hyderabad now accept visa applications from across India at all visa facilities, regardless of the applicant’s home address or city of residence. This is part of Mission India’s ongoing effort to facilitate legitimate travel to the United States.
Following the opening of Consulate General Hyderabad in 2008, the U.S. Mission has looked for ways to best capture the dynamism of India’s growth across the nation. As a result, we also redesigned our consular districts. Therefore, effective immediately, our consular districts will be reorganized as follows: Embassy Delhi: Bihar, Delhi, Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttarakhand, Uttar Pradesh, Bhutan; Consulate Mumbai: Goa, Gujarat, Madhya Pradesh, Maharashtra, Diu and Daman, and Dadra and Nagar Haveli; Consulate Hyderabad: Andhra Pradesh, Orissa; Consulate Chennai: Karnataka, Kerala, Puducherry, Lakshadweep, Tamil Nadu, Andaman and Nicobar Islands; Consulate Kolkata: Arunachal Pradesh, Assam, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, West Bengal
U.S. Ambassador to India Timothy J. Roemer said, “With these changes, we believe our Consulates General and our Embassy in New Delhi will be even better positioned to support and serve Indian visa applicants, as well as American citizens and businesses throughout India.”
Actions such as those noted above can have a tremendous positive impact upon those Indian Nationals seeking United States Immigration benefits as the ability to process such travel documents at any Post in India generally results in a great deal more convenience compared to the policy of keeping Consular jurisdictions mutually exclusive.
Each year, many Indian Nationals seek visa benefits of the United States of America. While some may seek US family visa benefits in order to reunite with loved ones. Other applicants seek non-immigrant visas for short terms stays in the USA. Still others seek employment based visas to the US such as the L1 visa. Meanwhile, there are some who opt to seek United States Permanent Residence by investment through use of the EB-5 visa program.
Policies such as the aforementioned one adopted by the US Mission in India should be applauded as this shows a sincere effort on the part of the Mission in India to take measures which may be beneficial to those seeking visas to America.
For related information please see: EB-5 Visa India.
27th August 2010
National Visa Center To Begin An Electronic Processing Pilot Program
Posted by : admin
Those with pending visa petitions and applications may have only had a passing experience dealing with the National Visa Center. For example, the National Visa Center plays a rather small role in the K1 visa process. Meanwhile those seeking a CR1 Visa or an IR1 Visa have probably had extensive dealings with the National Visa Center (NVC). In recent weeks, the NVC changed some of their processing policies for certain US Marriage Visas. Therefore, many of those seeking K3 Visa benefits have seen their application “administratively closed” by the NVC where the underlying I-130 arrived prior to, or contemporaneously with, the I-129f petition. In a recent announcement from the American State Department it was announced that NVC has begun a pilot program that many hope will eventually lead to simplification of the NVC document compilation process. To quote directly from the State Department’s announcement, as distributed through AILA:
The Immigrant Visa Electronic Processing Program is a pilot project which uses electronic communication and documentation methods to simplify and accelerate the immigrant visa application process. This program uses e-mail for communication and submission of all forms and documents to the NVC using the Portable Document Format (PDF). Under the Electronic Processing Program all forms will be downloaded, completed, signed (if required), scanned, saved as PDF files, and e-mailed to the NVC. Required civil documents and supporting documents must be converted to PDF files by scanning and e-mailed to the NVC. After the NVC has completed processing the applicant’s petition, the applicant will need to present the original physical documents to the US Embassy/Consulate at the time of the applicant’s visa interview. Failure to do so may cause a delay or denial of the visa being sought.
It is this author’s opinion that this policy change will have a tremendous impact upon the US visa process and will likely lead to faster visa processing in general. It will be interesting to see how this new program will impact US Consular Processing abroad. As noted in the announcement, original documentation will not be required by the NVC in some cases. Those who did not remit original documentation to the NVC may need to do so at the visa interview which usually occurs at a US Embassy or US Consulate with appropriate jurisdiction. Those who fail to remit such documentation may be subjected to a 221g refusal. In some cases, issuance of a 221g can delay a case by weeks, or in a limited number of cases the case could be delayed by months.
That said, those seeking visas to the United States are still well advised to seek the assistance of a competent licensed American attorney from the USA. Regardless of increased processing efficiency, there are many factors which can affect a visa application and competent advice and counsel can forestall unforeseen problems.
For related information please see: US Attorney Thailand.
9th July 2010
Department of State To Amend the Biometric Visa Program
Posted by : admin
In a recent announcement from the American Department of State it was revealed that those agencies tasked with issuing US visas are to add security features to American travel documents issued to foreign nationals. To quote the announcement as posted on the American Immigration Lawyers Association (AILA) website:
This public notice announces an amendment to the Biometric Visa Program. Section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 has required, since October 26, 2004, that all visas issued by the Department must be machine-readable and tamper-resistant and use biometric identifiers. In consultation with the Department of Homeland Security (DHS) and the Department of Justice (DOJ), the Department determined that fingerprints and a photo image should be required as biometric identifiers. When the biometric visa program began, available technology allowed for the efficient capture and comparisons of only two fingerscans. As a result of technological improvements, the Department instituted a ten fingerscan standard to raise the accuracy rate in matching fingerscans and enhanced our ability to detect and thwart persons who are eligible for visas.
As implied above, the Department of States is not the only American agency which will have a role in creating more effective security enhancements for American visas. The Department of Homeland Security will also play a part in this important endeavor. To further quote the announcement posted on the AILA website:
In establishing the Biometric Visa Program, the Department coordinated closely with the Department of Homeland Security (DHS). The Biometric Visa Program is a partner program to the DHS US-VISIT Program that is in effect at U.S. ports of entry and that uses the same biometric identifiers. By coordinating these two programs, the two departments have ensured the integrity of the U.S. visa. This is accomplished by sending the fingerscans and photos of visa applicants to DHS databases. When a person to whom a visa has been issued arrives at a port of entry, his or her photo is retrieved from a database and projected on the computer screen of the Customs and Border Protection officer. The person’s fingerscans are compared to the fingerscans in the database to ensure that the person presenting the visa is the same as the person to whom the visa was issued.
The new security features are likely be used for visa categories such as the K1 visa, the K3 Visa, and the common US Family Immigrant visas (CR1 Visa, IR1 visa) not to mention the non-immigrant visa categories such as the B1 visa and the B2 visa. That said, it seems unlikely that this will have an adverse impact upon those who seek a US visa in compliance with relevant US law.
Although the full-scale implementation of this program has yet to take effect, there are many who feel that more effective security measures will help ensure that there will be less fraud perpetrated against the United States government by foreign nationals wishing to illegally enter the USA.
For further information specifically related to US Consular Processing in Thailand please see: US Embassy Thailand.
18th June 2010
Frequently this author uses this blog to post accurate processing time estimates for the United States Citizenship and Immigration Service (USCIS) Centers in the United States. USCIS is a key agency tasked with adjudicating Immigration petitions prior to possible Consular adjudication at a US Embassy or US Consulate abroad.
The following was quoted from the USCIS website on June 18, 2010. These are the current processing time estimates for the USCIS service center in California:
I-129F | Petition for Alien Fiance(e) | K-1/K-2 – Not yet married – fiance and/or dependent child | 5 Months |
---|---|---|---|
I-129F | Petition for Alien Fiance(e) | K-3/K-4 – Already married – spouse and/or dependent child | 5 Months |
I-130 | Petition for Alien Relative | U.S. citizen filing for a spouse, parent, or child under 21 | 5 Months |
I-130 | Petition for Alien Relative | U.S. citizen filing for an unmarried son or daughter over 21 | November 09, 2005 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a married son or daughter over 21 | June 23, 2002 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a brother or sister | September 02, 2001 |
I-130 | Petition for Alien Relative | Permanent resident filling for a spouse or child under 21 | January 02, 2009 |
I-130 | Petition for Alien Relative | Permanent resident filling for an unmarried son or daughter over 21 | November 16, 2003 |
I-131 | Application for Travel Document | All other applicants for advance parole | 3 Months |
I-129 | Petition for A Nonimmigrant Worker | E – Treaty traders and investors | 2 Months |
---|---|---|---|
I-129 | Petition for A Nonimmigrant Worker | L – Intracompany transfers | 1 Months |
The following are estimated processing times for the USCIS Service Center in Vermont:
I-129F | Petition for Alien Fiance(e) | K-1/K-2 – Not yet married – fiance and/or dependent child | 5 Months |
---|---|---|---|
I-129F | Petition for Alien Fiance(e) | K-3/K-4 – Already married – spouse and/or dependent child | 5 Months |
I-130 | Petition for Alien Relative | U.S. citizen filing for a spouse, parent, or child under 21 | 5 Months |
I-130 | Petition for Alien Relative | U.S. citizen filing for an unmarried son or daughter over 21 | July 22, 2009 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a married son or daughter over 21 | July 13, 2009 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a brother or sister | 5 Months |
I-130 | Petition for Alien Relative | Permanent resident filling for a spouse or child under 21 | December 03, 2008 |
I-130 | Petition for Alien Relative | Permanent resident filling for an unmarried son or daughter over 21 | August 03, 2009 |
I-131 | Application for Travel Document | Permanent resident applying for a re-entry permit | 3 Months |
I-131 | Application for Travel Document | Refugee or asylee applying for a refugee travel document | 3 Months |
I-129 | Petition for A Nonimmigrant Worker | E – Treaty traders and investors | 2 Months |
---|---|---|---|
I-129 | Petition for A Nonimmigrant Worker | L – Intracompany transfers | 1 Months |
I-129 | Petition for A Nonimmigrant Worker | Blanket L | 2 Months |
Those interested in bringing a foreign loved one to the United States on a K1 visa, K3 Visa, CR1 visa, or IR visa are advised to remember that the above processing time estimates do not take into account special circumstances, Consular Processing, I-601 waiver adjudication, or I-212 waiver adjudication. Therefore, those interested in obtaining a US visa are wise to consult a US Immigration lawyer prior to making any decisions as different visa categories can process faster relative to other categories.
Due to recent unrest in the Kingdom of Thailand, those processing through that Consular Post may find that it takes a bit longer to get an appointment compared to more tranquil periods. However, it should be noted that the US Embassy in Thailand has diligently worked to clear the backlog caused by the recent Embassy closure and processing is getting back to a state of relative normality.
For further information please see: US Visa Thailand.
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