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Consular Corner: February 2009

by Liam Schwartz

Ten Years to 99 State 21138

Department of State cable 99 State 21138 was issued ten years ago this month. Entitled "Working Constructively With Immigration Attorneys" the cable highlights the importance to the visa application process of the working relationship between consular officers and immigration attorneys. The guiding hand behind 99 State 21138 was the late Stephen K. Fischel, who throughout three decades of service at the Department did more than anyone to promote the relationship between consul and counsel.

To mark the anniversary, we present some of the pearls of policy wisdom provided by 99 State 21138:

  • The relationship between consular officers and immigration attorneys can be productive. Consular officers can learn a great deal from a conscientious attorney, and vice versa.
  • Consular officers should not pass judgment on applicants who choose to employ the services of an attorney. Some people are more comfortable working through an attorney no matter how straightforward or simple the visa case may appear to the consular officer.
  • It is as common for visa applicants to misrepresent facts to consular officers as it is for clients to misrepresent facts or withhold information from their own attorneys.
  • One important service that attorneys provide to their clients is making sure that forms are correctly completed and necessary supporting documentation presented at the time of the interview.
  • Consular Affairs' policy is that the head of the consular section decides whether lawyers may be present at interviews. If the consular section policy generally bars attorneys from visa interviews, individual officers may nevertheless invite an attorney to a specific interview to respond to questions that the applicant is unable to address, eg in complicated "E" visa cases where the presence of an attorney would clearly assist the consular officer to understand the case.
  • Attorneys are paid to represent their clients to the best of their ability, and will be persistent in pursuing their cases. Refusing to accept telephone calls from attorneys or ignoring their letters will not make them go away. After attorneys fail repeatedly to get through to a consular section they turn to the Visa Office, and then we have to pester you for the answers.
  • Posts that establish clear and consistent procedures for responding to attorney inquiries save time and resources in the long run. As with Congressional correspondence, the fuller the explanation of a refusal or a 221(g) decision, the more you will help yourself.
  • The best immigration attorneys know the law very well. They know the regulations. If an attorney insists that something can be done for his/her client based on his or her interpretation of the law, ask for a citation. Let the attorney work for you on behalf of the clients.
The tenth anniversary of 99 State 21138 gives us pause to reflect on the current state of the working relationship between consular officers and immigration attorneys. The anniversary also provides the opportunity to think back fondly on Stephen Fischel, a remarkable human being and true friend to consular officer and immigration attorney alike.

Visas and Sleep-walking (Consular Officers)

"Consul-at-Arms," who has done more than anyone to promote public awareness of the professionalism of consular officers, offers the following counsel on the nature of the visa function:

"The idea that 'stamping visas' is merely a form of serving time, a rite of passage for new FSOs crops up fairly often, sometimes even among actual FSOs (who should know better).

First, if all you're doing is 'stamping' visas, then you're doing it wrong. Vice consuls and other visa adjudicators are expected to apply the Immigration and Nationality Act of 1952 (as amended, and boy is it ever) and related regulations (found in the Foreign Affairs Manuals, the Foreign Affairs Handbook, scores of SOPs and tables, and hundreds of cables) in order to facilitate legitimate travel to the U.S. while serving as the first-line of border security.

So if you're doing it right, it's not exactly sleep-walking. This is serious business; nobody wants to import foreign criminals, terrorists, or even extra economic migrants; the U.S. domestic supply will suffice."

Visas and Sleep-walking (Immigration Attorneys)

There are all too many immigration attorneys who need to wake up to the reality that the visa function is much more than "stamping visas." Take, for example the following email from immigration attorney to visa applicant client:

"Congratulations on approval of your L-1B petition. You will be responsible for picking up the visa at the U.S. consular post abroad. This is mostly a formality, but you will need to secure an appointment with the U.S. consular post in order to do so. You should visit the Department of State website at for information on visas."

An attorney's failure to properly prepare a client for the visa application process is disturbing. Knowing that the consular officers interviewing our clients consider their function as serious business, why would we ever assume that the visa application process is a sleep-walk?

BTW - the applicant in the above email was denied the L-1B visa.

Lift Every Voice and Sing

The Rev. Joseph Lowery began his benediction at the Presidential inauguration last month by quoting from a song, "Lift Every Voice and Sing." Interesting to note that "Lift Every Voice and Sing" was written by James Weldon Johnson, who served as a United States Consul.

In fact, James Weldon Johnson wasn't just a U.S. Consul; he was the first African American to be admitted to the Florida bar (in 1897). In addition to his foreign service and legal careers, Mr. Johnson was also (are you holding your breath?) a poet, novelist, editor anthologist, lyricist, and professor. Talk about the best and the brightest!

Parenthetically, the lyrics to "Lift Every Voice and Sing" can be found here:

US Embassy Baghdad Video

An interesting look inside the new U.S. Embassy in Baghdad is provided by the following news report. The Embassy cost us $700 million and is home to a staff of 1,200 men and women. The report notes that the Embassy already seems cramped, with people doubling-up both in office and residential spaces. For some reason, the fact that the Embassy dining hall has an ice cream bar attracted the special attention of the reporter.

Jeddah Update

The U.S. Consulate General in Jeddah has resumed partial non-immigrant visa services, with the hope of returning to full visa services in 2010. The non-immigrant visa unit in Jeddah has been closed in the aftermath of the December 2004 terrorist attack on the Consulate in which five employees were killed and others wounded. The Consulate will now begin processing a maximum of 300 applications per month, from a restricted category of visa applicants.

Are You Smarter Than A Junior Consular Officer?

  1. Ergonomically, which finger presents the greatest challenge for most applicants in the fingerprinting process?
  2. What is a commonly used name for form I-551?
  3. How many countries remain on the Department of State's list of state sponsors of terrorism? Can you name them?
  4. Give the name of one of the two legislators who sponsored the bill which became the Immigration and Nationality Act in 1952.
  5. What is the name given to an opinion regarding a point of law from the Office of Visa Services in the Department of State?
  6. In general, the appropriate visa classification for a foreign professional tennis player coming to compete in the U.S. Open (with prize money on offer, but otherwise no salary or payment from a U.S. source) is:
    1. B-1
    2. O-1
    3. P-1

  7. What is the name of the island which, in 1877, was chosen as the site for the Statue of Liberty?
  8. A Philippino national has received notification that his FB-4 category priority date has just become current: how long has he been waiting since submission of the underlying I-130 petition?
    1. 1 year
    2. 5 years
    3. 10 years
    4. 18 years
    5. 23 years

  9. What stamp does an embassy or consulate place on a visa when there is a mistake in the visa?
  10. What was the nickname given by President Bush to Ryan Crocker, during the latter's service as Ambassador to Iraq?

Top Ten Visa Wait Times at U.S. Consular Posts, February 2009

The Man on the Moon could look at the top half of this list and say "sure, makes sense - these are all countries which are state sponsors of terrorism or which sent 9/11 hijackers or are on the "outs" politically with the U.S. Not sure what he would say about the bottom half of the list, other than that perhaps the posts in Canada should be getting more resources.

# Country US Consular Post Visa Wait Time Increase/Decrease from January 2009 Last Month Top 10 Position
1 Cuba US Interests Section Havana 825 days 0 days 1
2 Venezuela Caracas 200 days 0 days 2
3 Saudi Arabia Dhahran 100 days 0 days 3
4 Saudi Arabia Riyadh 56 days +8 days 5
5 (tie) Bolivia La Paz 45 days + 10 days New listing
5 (tie) Syria Damascus 45 days 0 days 6 (tie)
6 (tie) Canada Toronto 42 days - 1 day 7
6 (tie) Canada Ottawa 42 days 0 days 8
7 Canada Calgary 40 0 days 9
8 Nigeria Abuja 35 days 0 days New listing
9 Mali Bamako 32 days - 13 days 6 (tie)
10 (tie) Canada Montreal 30 days 0 days New listing
10 (tie) Germany Munich 30 days 0 days New listing

Updated to February 2, 2009 and based on published Department of State data. The "visa wait time" is the estimated time in which individuals need to wait to obtain a nonimmigrant visa interview appointment at a given consular post.

Top Wait Times by Region:

The Americas (excluding Cuba) Venezuela/Caracas (200 days)
Middle East and North Africa Saudi Arabia/Dhahran (100 days)
Africa Nigeria/Abuja (35 days)
Europe and Eurasia Germany/Munich (30 days)
East Asia and Pacific China/Shenyang (20 days)
Central and South Asia Mumbai - New Delhi (10 days)

Answers to "Are You Smarter Than A Junior Consular Officer?"

1) The thumb.
2) "Green Card"
3) Four: Cuba, Iran, Sudan and Syria
4) Senator Pat McCarran (D-Nevada); Congressman Francis Walter (D-Pennsylvania)
5) Advisory Opinion
6) (a)
7) Liberty Island
8) (e)
9) Cancelled Without Prejudice
10) " Sunshine"

Quote of the Corner

"The INA and its underlying bureaucracy is often compared to the Internal Revenue Code as being one of the two most complicated statutes in the U.S. code. The employment of a lawyer does not constitute a red flag or signal the existence of a problem in the case." 99 State 21138.

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About The Author

Liam Schwartz is a principal in Liam Schwartz & Associates, a corporate relocation law firm. He can be reached at:

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