Integrity Legal

In light of recent events in the United States election and the campaign promises made by the now President-elect, it seems appropriate to assume that Immigration matters will likely come to the forefront of American political discussion. For this reason, this blogger finds it relevant to provide an overview of the Immigration apparatus and how the components function.

In order to understand U.S. Immigration matters and the enforcement of U.S. Immigration law one must first understand the Department of Homeland Security. This Department oversees most of the Immigration matters arising in the United States (The Department of State deals with matters pertaining to US visas issued abroad, for more information on the role DOS plays in the immigration process please check out the many pages on this blog dedicated to Consular Processing information).

There are three agencies under the jurisdiction of DHS which deal with different aspects of Immigration law and policy. The first agency that many intending immigrant will no doubt have had dealings with is the United States Citizenship and Immigration Service or USCIS. This agency is tasked with adjudicating petitions for immigration benefits such as immigrant visas, work visas, and certain temporary stay visas. Furthermore, the USCIS also adjudicates I-601 waivers of inadmissibility as well as I-212 waivers for those who have previously been subjected to expedited removal. Those wishing to travel from abroad to the United States on some sort of immigrant or work authorized visa will likely have contact with USCIS.

Another component of DHS which deals with Immigration is the United States Immigration and Customs Enforcement Service or USICE. USICE is often the agency tasked with ascertaining the legal status of foreign nationals physically present in the USA and if found to be present in the USA illegally USICE agents are tasked with apprehending such individuals and placing them in deportation proceedings.

Finally, there is the United States Customs and Border Protection Service or USCBP. In the US visa process, USCBP is arguably the most overlooked yet one of the most significant agencies an intending immigrant will deal with. Unbeknownst to most, notwithstanding the issuance of a valid visa, USCBP has the authority to turn away any alien attempting to enter the USA. In actual practice, an alien with a validly issued visa is unlikely to be refused admission at a port of entry, but it can happen. In most cases such refusal is due to a belief on the part of a USCBP officer that an alien attempting to enter the USA on a non-immigrant visa in fact has immigrant intent. This happens frequently to tourist visa holders who are attempting to conduct a so-called visa run in order to remain in the USA. In those cases involving immigrant spouses of US citizens holding visas such as the K-3, the CR-1, or the IR-1 refusal to admit the alien spouse is quite rare. The same can be said for foreign fiancees of US Citizens holding a K-1 visa, but the fact that USCBP has plenary power to turn away any alien seeking admission should not be forgotten.

Meanwhile in an interesting article in The Intercept, it was noted that certain documents have come to light which apparently show that although USCBP has traditionally recognized law enforcement functions (especially with respect to Customs matters) they also work with the FBI in matters not routinely thought of when pondering USCBP’s role. To quote directly from the aforementioned article:

“It is no surprise that law enforcement closely monitors border crossings for criminals or terror suspects. The initiatives described in these documents, however, are explicitly about gathering intelligence, not enforcing the law. A person doesn’t have to be connected to an active investigation or criminal suspect in order to be flagged; the FBI might want them for their potential to provide general intelligence on a given country, region, or group. The goal, according to an FBI presentation on an initiative at Boston’s Logan Airport, is “looking for ‘good guys’ not ‘bad guys.’”

Although immigration matters are often viewed as a “boring” aspect of the United States bureaucracy it should be noted that agents of the Department of Homeland Security play a significant role in maintaining the security of the USA and assist even in the gathering of intelligence.

Although the ultimate policies of the new administration regarding immigration matters remain to be seen it seems logical to infer that should the administration wish to make the immigration process more difficult for foreign nationals, then the sophisticated mechanisms mentioned above would likely have the capacity to make certain that such a course of events actually transpires.

Tags: CR-1 Visa, Department of Homeland Security, Department of State, IR-1 Visa, K-1 Visa, U.S. Immigration and Customs Enforcement, US Customs, US Customs and Border Protection, US Visa, US Visa Process, USCBP, USCIS, USDHS, USDOS, USICE
Posted in USCBP, USCIS, USICE | No Comments »

The administration of this blog routinely posts the updated processing times for the various service centers of the United States Citizenship and Immigration Service (USCIS). The following is quoted directly from the official website of USCIS:

It should be noted that the above quoted processing estimates may not accurately reflect the entire visa process as Consular Processing may be required at a US Embassy or Consulate abroad. Concurrently, the above cited processing time estimates may not accurately reflect the time it takes process an immigration petition at a USCIS field office abroad or through the process once referred to as Direct Consular Filing.

Tags: American Visa Process, CR1 Visa Process, IR1 Visa Process, K1 Visa Process, K3 Visa Process, US Visa Process, USCIS, USCIS Processing Times
Posted in CR1 Visa, E1 visa, E2 Visa, EB-1 Visa, EB-2 Visa, EB-3 Visa, EB-4 Visa, EB5 Visa, Fiance Visa Thailand, I-601 Waiver, IR1 Visa, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, K3 Visa, L1 Visa, lgbt immigration, same sex visa, US Visa Thailand, USCIS | No Comments »

The administration of this blog routinely posts the updated processing time estimates for the Service Centers of the United States Citizenship and Immigration Service (USCIS). The following was quoted directly from the official website of USCIS:

It should be noted that these processing time estimates do not reflect the time it takes to obtain a US visa as the US visa application process can be time consuming even after an initial immigration petition receives approval since processing at the National Visa Center and/or a US Consulate or US Embassy abroad may also be required.

Tags: Fiance Visa, Fiancee Visa, I-129f, I-130, K-1 Visa, K-3 Visa, Marriage Visa, US Visa Application, US Visa Process, USCIS
Posted in E1 visa, E2 Visa, EB-1 Visa, EB-2 Visa, EB-3 Visa, EB-4 Visa, EB5 Visa, Fiance Visa Thailand, I-601 Waiver, IR1 Visa, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, K3 Visa, L1 Visa, same sex visa, US Visa, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

The United States government has recently shut down due to the inability of Congress to make a deal regarding the budget and current debt ceiling level. The reverberations from this recent turn of events will likely be felt in many sectors of the United States government and by those who may have business with the US government. As a general matter, governmental functions which are deemed essential will still be available. However, those governmental activities and employees deemed non-essential will likely be discontinued and work furloughed until such time as Congress reaches an agreement. It has been 17 years since the United States government last shut down. As of the time of this writing, the Office of Management and Budget has instructed supervisors of various governmental entities to “execute plans for an orderly shutdown.”

What is the practical impact of the government’s closure upon the immigration process? It recently came to this blogger’s attention that the following has been posted on the official website of the United States Embassy in Bangkok, Thailand:

The U.S. Embassy in Bangkok and Consulate General Chiang Mai remain open to the public. As always, our priorities remain providing safety, security, and service to U.S. citizens. We are open for all consular services, including visa processing.

It could be inferred that the Embassy is attempting to dispel rumors that a shutdown will negatively impact the processing of US visa applications as well as applications for US passports, Consular Reports of Birth Abroad (CRBA), and various notarial services requested by Americans living in Thailand. Hopefully, the recently announced government shutdown will not last long and thus not cause any great problems for those seeking visas to the United States of America. However, a protracted shutdown could mean that processing of US visa applications could move at a slower pace, or, in a worst case scenario, be discontinued until such time as a budget is agreed upon. Hopefully, this will not happen and the processing of applications will continue apace.

Meanwhile, it is likely that the shutdown will not affect processing of immigration petitions at the United States Citizenship and Immigration Service (USCIS). As USCIS is funded by the fees paid by petitioners, it seems likely that a government shutdown will not adversely impact those seeking immigration benefits from USCIS. Again, as the United States has not seen a government shutdown in nearly two decades some of the details about the impact of the current shutdown remain somewhat speculative. Readers of this blog should take note that further information will be provided herein as it becomes available.

Tags: Consular Reports of Birth Abroad, CRBA, Office of Management and Budget, United States Citizenship and Immigration Service, US Consulate Chiang Mai, us embassy bangkok, us embassy thailand, US passports, US Visa Application, US visa application Thailand, US Visa Process, USCIS
Posted in Adjustment of Status, CR1 Visa, Department of Homeland Security, E1 visa, E2 Visa, EB-1 Visa, EB-2 Visa, EB-3 Visa, EB-4 Visa, EB5 Visa, F1 Visa Thailand, Fiance Visa Thailand, I-601 Waiver, J1 visa, J1 Visa Thailand, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K3 Visa, L1 Visa, Legal News, National Visa Center, News, same sex visa, US Consulate Chiang Mai, US Embassy Thailand, US Tourist Visa, US Visa, US Visa Thailand, USCIS | No Comments »

The administration of this blog routinely posts the estimated processing times of the various service centers of the United States Citizenship and Immigration Service (USCIS). The following was quoted directly from the official USCIS website:

Those reading these estimates should bear in mind that these estimates do not necessarily provide an accurate estimate of the overall US visa process. Those seeking a United States visa from outside the United States will likely be required to undergo Consular Processing at a US Embassy or US Consulate abroad. Furthermore, before an immigration petition even reaches a US Embassy overseas the file must first be processed by the National Visa Center. All of these facts are likely to cause the overall US visa process to be significantly longer than the time it takes for USCIS to merely adjudicate an immigration petition.

Tags: Consular Processing, CR-1 Visa, CR-2 visa, CR1 Visa, CR2 visa, I-129f, I-130, I129f, I130, IR-1 Visa, IR-2 visa, IR1 Visa, IR2 visa, K-1 Visa, K-2 Visa, K-3 Visa, K-4 visa, K1 Visa, K2 Visa, K3 Visa, K4 Visa, National Visa Center, United States Citizenship and Immigration Service, US Consulate, US Embassy, US Visa Process, USCIS
Posted in USCIS | No Comments »

Periodically, the administration of this web log post the estimated processing times from the United States Citizenship and Immigration Service (USCIS). It should be noted that the following processing time estimates are exxactly that: estimates. Some petitions may process more quickly while other petitions may proccess more slowly. To quote directly from the USCIS official website:

It should be also noted that although these USCIS estimated processing times can provide a general framework for understanding the time frames for petition adjudication by USCIS, these estimates do not necessarily reflect the estimated time frame for the entire US visa process especially if the unique circumstances of a given case requires Consular Processing of a US visa application at a US Embassy or US Consulate abroad.

For a married couple seeking an IR1 visa or a CR1 Visa for a foreign spouse of US Citizen the process begins at the USCIS where the initial petition will be adjudicated. Assuming USCIS approves the initial petition, then the petition will be forwarded to the National Visa Center (NVC). NVC will require certain documents before forwarding the application to a US Embassy or Consulate abroad where a foreign spouse must undergo an interview prior to the Consular Officer making a decision regarding visa issuance. In some cases, the Consular Officer may approve the visa application at the interview. Meanwhile, in some circumstances, the officer may deny the application (especially where a ground of inadmissibility is found to exist in the case and under such circumstances the applicant must be granted an I-601 waiver, or something similar, prior to the application receiving further favorable treatment). In some cases, the officer may simply find that some further evidence of the relationship or documentation pertaining to the foreign national is lacking and will thereby deny the application pursuant to section 221(g) of the Immigration and Nationality Act. Under these circumstances, the 221(G) denial may be overcome by presenting further evidence to the Consular Officer and upon their finding that the relevant requirements have been met the application may be approved.

As one can infer from the above example, the USCIS estimateed  processing times may not accurately reflect the total time it may take to obtain a US visa since the process is sometimes more complex than simple USCIS petition approval.

Tags: 221g, American Consulate, American Embassy, American Fiance Visa, American Fiancee Visa, American Marriage Visa, American Visa, American Visa Process, Consular Processing, CR-1 Visa, CR1 Visa, EB-1 visa, EB-2 Visa, EB-3 Visa, EB-5 Visa, EB1 visa, EB2 Visa, EB3 Visa, EB5 Visa, Immigration and Nationality Act, IR-1 Visa, IR1 Visa, K-1 Visa, K-2 Visa, K-3 Visa, K1 Visa, K2 Visa, K3 Visa, L-1 visa, L1 Visa, National Visa Center, NVC, United States Citizenship and Immigration Service, US Consulate, US Embassy, US Fiance Visa, US Fiancee Visa, US Marriage Visa, US Visa, US Visa Process, USA Consulate, USA Embassy, USA Fiance Visa, usa fiancee visa, USA Marriage Visa, USA Visa, USA visa process, USCIS, USCIS Processing, USCIS Processing Time, USCIS Processing Times
Posted in CR1 Visa, EB-1 Visa, EB-2 Visa, EB-3 Visa, EB-4 Visa, EB5 Visa, F1 Visa Thailand, Fiance Visa Thailand, I-601 Waiver, IR1 Visa, J1 visa, J1 Visa Thailand, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, K3 Visa, L1 Visa, same sex visa, US Visa, US Visa and Immigration, US Visa Thailand, USCIS, Visa Waiver | No Comments »

It recently came to this blogger’s attention that the United States Citizenship and Immigration Service (USCIS) has implemented a new policy regarding the I-130 petition for visas such as the CR-1 visa and the IR-1 visa. To provide further insight it may be prudent to quote directly from the official website of the USCIS, USCIS.gov:

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced that effective Aug. 15, 2011, petitioners residing in countries without USCIS offices will be able to file a Petition for an Alien Relative (Form I-130), with the USCIS Chicago Lockbox facility. This will increase the efficiency of the relative petition filing process and give USCIS more flexibility in managing its workload. Previous regulations permitted these petitioners, who comprise about 5 percent of all I-130 petitioners, to file with USCIS or the U.S. Department of State at their local U.S. embassy or consulate. Under the new regulation, published today in the Federal Register, petitioners residing in countries without USCIS offices may file a Petition for an Alien Relative based on the addresses provided in the revised form instructions…

Clearly, this new policy could have significant ramifications for those seeking a United States visa on behalf of a foreign loved one. Concurrently, those familiar with the American visa process may note that this new policy effectively ends the Direct Consular Filing option for petitioners in certain Consular jurisdictions. In the past, it may have been possible for petitioners to file their visa petition directly with a US Embassy or US Consulate if the petitioner resided in the Consular District. These recent regulatory changes would appear to bring this era of Consular Processing to an end.

Meanwhile, in news related to Southeast Asia and the ASEAN (Association of Southeast Asian Nations) community, it appears that Malaysia is poised to engage in a Free Trade Agreement with India. To provide further insight into these developments it may be best to quote directly from the website MoneyControl.com:

The free trade agreement (FTA) between India and Malaysia will come into force from July 1, giving Indian professionals like accountants, engineers and doctors access to the key South-East Asian nation. In addition, exports of items of considerable interest to India, like basmati rice, mangoes, eggs, trucks, motorcycles and cotton garments, will attract lower or no duty in Malaysia with the implementation of the Comprehensive Economic Cooperation Agreement (CECA), according to a statement of the Commerce Ministry issued today…

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks noted above to learn more on this developing story.

As nations in ASEAN, such as Malaysia, continue to become more integrated into broader markets it stands to reason that new trade arrangements will be forged. The ASEAN community (Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam) has been the topic of a great deal of recent discussion regarding future free trade agreements as many nations around the world try to make headway into this important and increasingly lucrative regional market.

For information related to legal services in ASEAN, please see: Legal.

Tags: American Consulate, American Embassy, American Visa Process, ASEAN, ASsociation of Southeast ASian Nations, Brunei Darussalam, Cambodia, CECA, Comprehensive Economic Cooperation Agreement, CR-1 Visa, CR1 Visa, Direct Consular Filing, Federal Register, Form I-130, Free Trade Agreement, FTA, I-130, India, Indonesia, IR-1 Visa, IR1 Visa, Laos, Malaysia, Malaysian Commerce Ministry, Myanmar, Petition for an Alien Relative, Philippines, Singapore, Thailand, U.S. Citizenship and Immigration Services, United States Citizenship and Immigration Service, US Consulate, US Embassy, US Visa, US Visa Process, USCIS, USCIS Chicago Lockbox, Vietnam
Posted in ASEAN Business, CR1 Visa, IR1 Visa, Malaysia Business, US Embassy Kuala Lumpur, US Embassy Malaysia, USCIS | No Comments »

It recently came to this blogger’s attention that the American Secretary of State, Hillary Clinton, has made an announcement regarding issuance of US student visas to Iranian nationals. To quote directly from the Still4Hill blog:

I am very pleased to announce a big step forward in the Obama Administration’s support of the Iranian people. Under our old visa policy, Iranian students and exchange visitors were eligible for visas that lasted for only three months and could be used to enter the country just one time. As of today, that has changed. They are now eligible for two-year, multiple entry visas. This gives young Iranians the opportunity to return home for family events, to participate in internships, to travel outside the United States—and they won’t need to get a new visa every time. I’ve heard from many Iranian students and Iranian Americans that you wanted this change. So I want you to know that we are listening to your concerns. We want more dialogue and more exchange with those of you who are shaping Iran’s future. We want to be able to share with you what we think is great about America…

The administration of this web log strongly encourages readers to click upon the hyperlinks above to learn more about this story.

The US Student Visa, also referred to by the categorical title of F-1 visa, is a very popular travel document among foreign nationals who wish to travel from their home country to the United States in order to undertake a course of study. This visa category is akin to the US tourist visa (B-2 visa) insofar as both visas require the adjudication of a visa application at a US Embassy or US Consulate abroad. The US student visa is also a non-immigrant visa. It is important to note this fact because it implies that any application for such a visa must survive scrutiny pursuant to section 214(b) of the United States Immigration and Nationality Act. Not all non-immigrant visa applications are scrutinized pursuant to 214(b), most notably the L-1 visa, but many popular categories require such scrutiny.

Section 214(b) of the Immigration and Nationality Act creates the rebuttable presumption that a non-immigrant visa applicant is actually an undisclosed intending immigrant to the United States. This presumption can only be overcome by the applicant providing affirmative proof that they have a strong incentive to leave the United States rather than remain. For many, overcoming such a presumption can be difficult, but it should not be viewed as impossible as many US non-immigrant visas are issued each year.

For related information please see: J-1 visa.

Tags: American Student Visa, American Visa, B-2 Visa, Exchange Visitor Visa, F-1 Visa, Hillary Clinton, J-1 visa, Student Visa Process, US Student Visa, US Tourist Visa, US Visa, US Visa Process
Posted in US Tourist Visa, US Visa | No Comments »

For those who follow this blog with any degree of regularity it may have noticed that the administration routinely posts the updated processing times for the United States Citizenship and Immigration Service (USCIS). To quote directly from the official website of USCIS:

It should be noted that these processing times only represent the processing times for USCIS. During the US visa process, an applicant for, say, a K-1 visa (US fiance visa) or a CR-1 visa (or any visa which requires an approved immigration petition) must undergo Consular Processing following USCIS approval. Therefore, in most cases the approved petition will be sent to the National Visa Center (NVC) before being forwarded to the US Embassy or US Consulate with appropriate jurisdiction. Meanwhile, those who utilize Direct Consular Filing methods or submit an I-130 petition with USCIS abroad should disregard the times noted above as they only pertain to USCIS Service Centers in the USA.

For related information please see: US Embassy Thailand or Consular Processing.

Tags: advance parole, CR-1 Visa Processing Time, CR-1 Visa Thailand, EB-5 Visa Processing Time, Employment Authorization Document, I-129f Processing Time, I-130 Processing Time, IR-1 Visa Processing Time, IR-1 Visa Thailand, K-1 Visa, K-1 Visa Processing Time, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, L-1 Visa Processing Time, United States Citizenship and Immigration Service, us embassy thailand, US Visa Process, USCIS, USCIS Processing, USCIS Processing Times
Posted in USCIS | No Comments »

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.

Tags: Consular Absolutism, Consular Complaint Box, Consular Non-Reviewability, Consular Processing, CR-1 Visa Process, Department of State, DOS, I-212 waiver, I-601 Waiver, IR-1 Visa Process, K-1 Visa Process, K-3 visa process, United States Citizenship and Immigration Service, US Consulate, US Consulate HCMC, US Embassy, US Visa Process, USCIS
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