Consular Corner: March 2009
Transparency and the FAM
As of February 2009 there has been a significant injection of transparency into an important aspect of the visa application process.
The visa application process is underpinned by the Foreign Affairs Manual ("FAM"). The FAM is the Department of State's central resource for visa regulations, policies and guidance. http://www.gao.gov/new.items/d05859.pdf
Changes to these regulations, policies and guidance are constant: according to the State Department, "updating the FAM is like painting an aircraft carrier; one can never say the job is done….We literally make changes every day."
How can citizens whose lives are touched by the visa application process gather information about the daily changes to the FAM that may be critical to their interests? By accessing the record of these changes ("change transmittals") published by the Department of State on its Internet site. http://www.state.gov/m/a/dir/regs/fam/c28347.htm
For the two years of 2007 and 2008, the number of published change transmittals for Volume 9 (Visas) of the FAM amounted to about half a dozen.
For the two months of February and March 2009 alone, the number of published change transmittals for Volume 9 (Visas) of the FAM reached nearly 30.
Remarkable! And to those responsible - thank you!!
Change Transmittals and Transparency
What visa updates have we received, thanks to this new and most welcome approach towards making the visa application process more transparent through the regular publication of change transmittals?
The following are just a few examples:
One of the more important updates relates to the discontinuation of the need to submit an original Form I-797 Approval Notice at consular interviews in petition-based visa cases. Change transmittals in February and March make it clear that the original Approval Notice should no longer be required of the visa applicant. Take, for instance, newly updated 9 FAM 41.54 N3.2 ("Approved Petition Is Prima Facie Evidence of Entitlement to L Classification"):
"You should no longer require that…evidence that the L petition has been approved (a Form I-797…), be presented by an applicant seeking an L visa. All petition approvals must be verified through the Petition Information Management Service (PIMS)." http://www.state.gov/documents/organization/87229.pdf
Section 428 Hits Home
If updating the FAM is, as per the above, like painting an aircraft carrier, then making the transfer of visa authorities from DOS to DHS may be like turning around an aircraft carrier: it takes time, but eventually the new bearings become apparent.
New updates to the FAM make evident that there are indeed new bearings on visa policy.
As a reminder: the Homeland Security Act of 2002 was enacted in the immediate aftermath of the 9/11 terrorist attacks. Section 428 of the Act vested the Secretary of Homeland Security with exclusive authority over visa policy. The exact language used in the Act is: "the Secretary shall be vested exclusively with all authorities to issue regulations with respect to, administer, and enforce the provisions of… immigration and nationality laws, relating to the functions of consular officers of the United States in connection with the granting or refusal of visas, and shall have the authority to refuse visas in accordance with law and to develop programs of homeland security training for consular officers (in addition to consular training provided by the Secretary of State), which authorities shall be exercised through the Secretary of State…"
Recent additions to 9 FAM emphasize this point in the context of petition-based visa adjudications. These additions evidence a sort of DHS Absolutism, in which consular officers are instructed that DHS interpretation of the law or the facts are all controlling. DHS has blessed the petition, the American government has spoken, and consular discretion in these cases is all but non-existent.
The following table describes these modifications in the L visa context; note that consular discretion is mentioned almost as an afterthought. These modifications serve to entrench the disturbing notion that visa officers in the consular section are the functional equivalent of registration officers in the local motor vehicle department. It would seem that the restrictions on consular authorities embodied in the Homeland Security Act of 2002 are beginning to hit home.
"Reason to Believe" and Visa Denials
The FAM's "Reason to Believe" standard (see above) brings to mind the old Bruce Springsteen standard by the same name:
"Seen a man standin' over a dead dog lyin' by the highway in a ditch He's lookin' down kinda puzzled pokin' that dog with a stick
Got his car door flung open he's standin' out on Highway 31 Like if he stood there long enough that dog'd get up and run
Struck me kinda funny seem kinda funny sir to me At the end of every hard earned day people find some reason to believe."
As evidenced by the following account, "Reason to Believe" may also be the proper standard for applicants whose requests for US visas have been denied:
"On February 12 my US visa application was denied by the US Consulate in Melbourne. I will not be able to return to America as planned at the end of this month. Currently there is no other visa open to me, my only recourse is a positive response to my Green Card petition. As of today, I am still waiting to hear from the US government concerning this.
So what does this mean? For now I am waiting on the Lord to show me what is next. The news was shocking and left me struggling to believe that I had been rejected. Tears come and go and feelings of grief and anxiety leak from my heart when I least expect it. I know these feelings are OK and they have not overwhelmed me. I know the Lord has a plan and He will show me the way forward and provide for me. I will be back in the USA in the near future and in the meantime I will continue to be about His business from Down Under and wherever He sends me.
The timing of my visit to Australia has been very interesting. Two days after arriving at my parents, my home State of Victoria was ravaged by bush fires that have left the nation devastated. It is the worst natural disaster in Australia's history. Fires fighters continue to fly in from all over the world to relieve and support the overwhelmed and weary local crews. Whole towns and villages have been burned to the ground, many will never recover. The fires have swept through thousands of hectares destroying property, killing wildlife and livestock and the human death toll is appalling. Families across Victoria are suffering with the loss of loved ones. Many people remain missing. As the forensic teams move through the burned debris of rural communities there are dreadful discoveries of human remains, burned beyond recognition.
I have shared in the grief and suffering of the nation, I have mourned with my countrymen. I have also felt pride at the unconditional outpouring of heroism, generosity and strength of spirit that has come forth from the heart of the Australian people.
Tragedies like this keep small things like denied visas in perspective.
Father God will bring great healing and hope to the hurting and His Rain of Salvation will bring forth new life from the ashes. Thank you for praying for His Rain to flood this dry and devastated land to heal, to comfort and restore.
Thank you for praying for me too. As always I have many Mission mobilization projects on the go both in the USA and well as the Himalaya. I may be stopped for now from entering the States but the opportunities to challenge, mobilize and serve His vision never stop. Please continue to pray for the Green Card. Its time!"
U.S. Consulate General in Hyderabad Begins Issuing Visas
U.S. Consul General Cornelis M. Keur proclaimed the Consulate General in Hyderabad "open for consular services". The Consular Section is now accepting visa interview appointments for those wishing to travel to the United States. Full consular services for American citizens are also available.
According to published accounts, Hyderabad will begin conducting 100 visa interviews a day, a number which is likely to increase to 400 per day by April-end. The newly inaugurated office in Hyderabad will serve applicants from Andhra Pradesh.
Interesting to note the utter excitement in which the Times of India reported the opening of the consular post in Hyderabad:
"The American dream came a little closer to the residents of Andhra Pradesh with the US Consulate office in Hyderabad throwing open its visa services for those wishing to travel to the U.S."
The new Visa Services page of the Consulate General in Hyderabad can be accessed here:
U.S. Embassy in Kabul Begins Issuing Non-immigrant Visas
U.S. Embassy Kabul has begun issuing non-immigrant visas for the first time in more than 30 years.
U.S. Ambassador William Wood: "In opening up the windows of the American Consulate in Kabul for the first time in 30 years, we are expressing to the people of Afghanistan, in the most concrete way, our welcome. Please come. Please talk to us."
All Afghan non-immigrant visa applicants are required to complete forms DS-156, DS-157 and form DS-158. All applicants must also complete a special Kabul supplemental visa form, which requests information on issues such as the following:
This special form can be found here:
The new Non-immigrant Visa Services page of Embassy Kabul can be accessed here:
Visa Validity Periods Extended for Iraqis
The maximum validity period for all categories of U.S. visas issued to Iraqi passport holders has been extended from 3 t0 12 months. According to Consul General Jeffrey Lodinsky, this move is "an excellent example of how the Iraqi and American people are benefitting directly from the new relationship being forged between our two countries."
The Reciprocity Table for Iraq has been amended to evidence this extension in visa validity periods, and can be accessed here:
Former Secretary of State Powell and the Gettysburg Address
Hear one of our nation's finest Secretaries of State passionately recite the Gettysburg Address, reiterating Lincoln's resolve "that government of the people, by the people, for the people, shall not perish from the earth."
Applause to the ACS Section of Embassy London for posting this audio file!
Landmark Conference on Consular Processing
The 2009 AILA Rome District Chapter Spring Conference will be a landmark event in the field of consular processing. Scheduled for April 22-24, 2009 in Tel-Aviv, Israel, the Conference is being held with the active assistance and participation of the U.S. Embassy in Tel-Aviv, and the U.S. Consulate General in Jerusalem.
The complete educational program, with registration details, can be found here:
Are You Smarter Than A Junior Consular Officer?
(a) 6 months
Top Ten Visa Wait Times at U.S. Consular Posts, March 2009
About a year ago, Mission Canada terminated the longstanding ability of applicants to have U.S. counsel with them at U.S. consular posts in Canada. Among the stated reasons for this change in policy: the need to maintain speedy application processing given space constraints and visa workload.
Toronto was the only Canadian post to appear on the March 2008 Top Ten list, coming in at #10 with a reported wait time of 42 days.
Three Canadian posts are on the March 2009 Top Ten list: Toronto is still at 42 days, tied for #7 with its sister post, Ottawa. Calgary is #8 on the list, with a reported wait time of 40 days.
As worldwide wait times have decreased, wait times at Canadian posts have either remained constant or increased.
Given all of the "win-win" benefits associated with attorney presence at certain types of visa interviews (see "Ten Years to 99 State 21138" in the February 2009 Consular Corner), isn't it time to reconsider the mission-wide ban on attorney representation at the posts which comprise Mission Canada?
Top Wait Times by Region:
The Americas (excluding Cuba) - Venezuela/Caracas - (217 days)
Answers to "Are You Smarter Than A Junior Consular Officer?"
Quote of the Corner
"U.S. Visa policies are like Microsoft Windows. After decades of usage and many repairs to its code/policies, they both still need more patching and enhancements. Both of these institutions start off with a good idea and then discover that: we forgot a few critical things; malcontents are manipulating this and we need to put in stronger security and more controls; people are not using this the way we envisioned."
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