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< Back to current issue of Immigration Daily

Consular Corner: May 2009

by Liam Schwartz

Not Everyone is Really that Much of an Individual

A Vice Consul recently made the following statement, shortly after having ended another long day on the visa line:

"When you have spent so many hours at the window, you really get to see that people fall into categories. Not everyone is really that much of an individual. I mean you get the groups of people who are going with their families to Disneyland for a vacation, you get the groups of people just out of the university wanting to travel to the United States, and you get the groups of people going to study in the US, so people really fall into categories. And what you see is that the same story is being told over and over again. You know it's the same person working in high tech, he's worked there for about two years, he's going on business. It's standard, we get I don't know how many of these a day. So when people say 'we didn't get a fair shake,' it's because we already know their story. People think they're individuals, but when you see 150 to 200 people a day, they become part of a group, OK?"

The Art of the Visa Adjudication

In response to the above statement, the consular officer behind Calling a Spade a Spade, an impressive new FSO blog, walks us through his conception of the process of interviewing applicants as individuals - and not as caricatures of individuals. With the consent of the author, the entire posting is reproduced, below: "Profiling. What instantly leaps to mind? For me, a state trooper pulling over a black guy because, well, he's black and must be up to something.

I've heard consular officers deny they profile visa applicants; then, when they describe exactly how they adjudicate, you're left with the impression that profiling is exactly what they're doing.

I'm going to walk you through the process from my perspective, because I'm among the best in the business. Arrogant? Maybe. But that sort of confidence is critical to successful visa interviewing. Ambivalence on the part of the interviewing officer is any applicant's worst enemy.

How do I interview visa applicants? I'll get a stack of passports. Some will have a ton of documents. Some will have few. Before I call the applicant to the window, I scan the application and the documents. Why? Because they'll inform my questions. I don't ask a single question I don't already know the answer to. Why? Credibility. I don't care how much an applicant makes, how often he's traveled or what kind of dirt he has under his fingernails. My sole concern is this: is the applicant in front of me going to return to his country of residence when he says he will. I'll review the application and documents and make a preliminary decision: issue or refuse. Then I ask myself what two or three questions I need to ask to confirm or rebut that initial snap judgment.

Upon what is that initial snap judgment predicated? Upon previous interviews and the results of our validation studies. If I was engaging in profiling, I'd play the percentages. If the validation studies indicate that 50-year-old women from a particular region tend to overstay and work as nannies, then I'll refuse every one of them. Officers do that. I don't. Why? Every single person is different. Not every unemployed 50-year-old woman from Podunkville will go to the U.S. and babysit. And not every single businessman who makes $10,000 a month will return.

So what role does the data provided by validation studies provide? It identifies trends. Likelihood. But the data is not absolute.

What happens at the interview? I'm looking directly at the face of the applicant, not down at the documents. I want to see EXACTLY how the applicant responds to the questions I'm asking. I'm gauging the visceral reactions to the questions I'm asking. I'm evaluating the time it takes the applicant to formulate an "acceptable" answer. I'm looking for discrepancies between the answers and the information provided by the application and the supporting documents. I don't make a production of looking at the documents in front of the applicants; I don't want them to think that the documents carry more value than they actually do. The vast majority of documents provided aren't material to the adjudication, in any case. If I make a show of reviewing the documents before rendering my decision, it's because I'm heading off an inquiry at the pass: "The officer didn't even look at my documents."

How do I know that my adjudications, particularly those that result in a visa issuance IN CONTRAVENTION TO the information provided me by our validation studies, are correct? Many posts implement a system known as a "tickler file" or "calendar file." Whenever I issue a visa that the statistical data says I should be refusing, I make a note on the application. Our fraud prevention unit (FPU) will file that application. When the time period in which the applicant claims he was traveling and returning passes, FPU investigates the travel history. Did the applicant overstay? Did he return?

When I arrived at my current post, applicants were routinely refused on the basis of profiles developed through data garnered through validation studies. But here's the deal: if it were that simple, a computer could adjudicate visa applications. But what would be the result? Hundreds of individuals who would have traveled and returned are denied, and hundreds who will overstay are issued. A computer can't discern intent.

So how successful am I at this crap shoot, you're asking yourself. Validation studies show that the overstay rate for those I issue who fall into those "risky profiles" is slightly higher than that of my colleagues. But here's the kicker: the overstay rate for those "calendared" by my colleagues is next to zero. And this instigates another argument. If a colleague learns that every flagged applicant has returned, what does it mean? To the officer, it usually means that they're adjudicating perfectly. But how likely is that? Really? No one is omniscient. If not a single one of the 100 applicants you've "calendared" has overstayed, my contention is that you're adjudicating too stringently; you're refusing too many applicants who would actually have gone and returned, simply because they fit a profile.

How can any human being make an accurate snap judgment in two minutes? You wouldn't think it was possible, but it is. I wish I had a dollar for every time I refused an applicant who earned a great salary and demonstrated a sound travel history, and I was later provided with derogatory information. Why did I refuse these guys? Primarily ambiguity regarding purpose of travel. I don't give a damn what you make or where you've been. Post 9/11, if you can't tell me EXACTLY what you'll be doing in the U.S., I won't issue you a visa. I don't have that luxury.

Do I get burned adjudicating this way? Sure, I do. No one is perfect. Sometimes I do issue a visa to someone that USCIS snags at the border as an intending immigrant. But when you look at the percentages, I and my colleagues are good, very good at what we do. This is why post-9/11 discussions over removing the visa function from State and giving it to DHS were so misguided. You can't replace experience. You simply can't. Good consular officers develop these skills over years and thousands of interviews; you can't teach these skills, to a large extent, through classroom simulations. They have to be developed through experience. And let me suggest this: if you could teach it in a classroom, it would be much easier for terrorists to break it down. It's the subjectivity of the process, the unpredictability, that actually protects our borders.

So keep this in mind when you read a story about someone refused a visa "capriciously": he rubbed a consular officer, someone trained to read micro-expressions, to identify discrepancies, someone who has developed a "gut feeling" that rarely fails, the wrong way. Sometimes it's innocent; visa applicants often fail to provide material information that would have assuaged that concern. But most often, the officer has identified an anomaly that throws the entire account into doubt.

Mel Gibson described his portrayal of Satan in "The Passion of the Christ" that I think captures this perfectly:

'... that whole idea of something wholesome, something beautiful, something like the image of motherhood, or any of these things, and that the mask is slightly askew so that you can see something very nasty, indeed, underneath the initial facade, which may, of course, be pleasing or wholesome...'

And that's what it is. The seemingly perfect visa applicant -- yet something askew... " http://xcalling-a-spade-a-spadex.blogspot.com

Visa Interviews: A Look Back

In order to give perspective to the two above approaches (that of the Vice Consul and that of "CaSaS"), we note that this month marks the sixth anniversary of the Department's announcement of sweeping curbs placed on discretionary waivers of personal appearance for nonimmigrant visa applicants.

Prior to these curbs, individual consular posts granted personal appearance waivers so as to achieve goals such as (1) limiting crowds; and (2) promoting efficiency in the scheduling of applicants who were required to appear in person. The State Department refrained from giving centralized guidance in order to ensure that visa operations were as effective and efficient as possible based on local circumstances.

The need for reform of these procedures was strikingly highlighted by the discovery that 13 of the 15 Saudi and Emirati hijackers who committed the atrocities of September 11, 2001 were issued visas without interviews. http://www.gao.gov/new.items/d05994t.pdf

And then came the centralized guidance. In May 2003, the Department issued notification of changes which led to the current process by which virtually all applicants for nonimmigrant visas must make a personal appearance and be interviewed by a consular officer.

As a reminder of how far the visa application process has advanced over the past six years - and of the difficulties which many posts experienced in dealing with implementation of the new interviewing regime - the following is taken from the text of the May 2003 notification:

"WAIVER OF PERSONAL APPEARANCE REVISION
P 211636Z MAY 03
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS PRIORITY
SUBJECT: BORDER SECURITY - WAIVER OF PERSONAL APPEARANCE
FOR NONIMMIGRANT VISA APPLICANTS - REVISION TO THE REGULATIONS

The visa interview is a crucial tool- in many cases the key tool-in determining visa eligibility. As part of the Department's continuing efforts to improve the security of the visa process-and thereby the security of our nation--we have revised substantially the Code of Federal Regulations and FAM guidelines on when personal appearance and interview can be waived for nonimmigrant visa applicants. This is the next step in preparing for the eventual fingerprinting of applicants that the Department will undertake to meet the legislated mandate to include a biometric identifier with issued visas.

Although many posts greatly increased the numbers of personal interviews required when requested to do so last summer, for some posts, the new regulations will result in a significant increase in the percentage of applicants interviewed. The Bureau of Consular Affairs will work closely with those posts to try to provide the resources necessary to cope with any additional workload, but expects and accepts that many posts will face processing backlogs for the indefinite future.

The goal of the visa interview is to elicit information to help determine individual applicants' eligibility for a visa. Interviews provide an opportunity for consular officers to learn details of proposed trips and discuss with applicants their background, experience, and the rationale and motivation for their proposed visits to the U.S. Information crucial in identifying those who seek to enter the U.S. for other-than-legal purposes, including those related to support for or commission of terrorist acts, can sometimes be first obtained in the interview process.

The Department realizes that the new regulation will necessitate substantial changes in how posts handle NIV applications. Some posts may find that personnel and/or facility resources are not adequate to handle the additional number of interviews. Workload management will become more important than ever and posts that do not already have appointment systems should immediately explore implementing them. The Department appreciates that many posts will face interview backlogs. As posts grapple with resource issues post management should inform the Department of the anticipated impact on post's processing, including potential for interview backlogs.

This is the next step in preparing for the eventual fingerprinting of applicants that the Department will undertake to meet the legislated mandate to include a biometric identifier with issued visas." http://travel.state.gov/visa/laws/telegrams/telegrams_1421.html

A Job Well Done

A good example of how the visa interview really can be a critical tool in determining visa eligibility is provided by an unclassified Security Advisory Opinion (SAO) from the Department of State to the American Consulate in Amsterdam. According to this document, the U.S. consul had requested an SAO following an interview held with a visa applicant named Dirk Oosterveld, who served with the Dutch National Police during WWII (the DNP were put under the control of Himmler's SS following the fall of the Netherlands and were deeply involved in the destruction of the Dutch Jews). Mr. Oosterveld claimed his wartime service consisted of acting as a firearms and drill instructor for new police recruits - but the State Department suspected he had actually been an active member of a police training battalion which "became a byword in occupied Holland because of its ruthlessness and cruelty" and which seized Jews on German orders.

The visa applicant's ineligibility for a tourist visa was determined on the basis of facts elicited during the visa interview. The SAO salutes the interviewing officer as follows:

"The Department commends you for your diligence in interviewing this applicant and drawing the details of his wartime service. Given that the (background) summary on this applicant contained very little useful information, this case hinged on a thorough interview with the applicant. Congratulations on a job well done." http://www.jewishvirtuallibrary.org/jsource/Holocaust/OSS/dutchpolice070389.pdf

Changes to 9 FAM - Monthly Report

Published changes to Volume 9 (Visas) of the FAM over the past month have been extensive in number and widely varied in topic; these changes include the following:

Security Clearance Procedures

9 FAM Appendix G, relating to security clearance procedures, has been around for some time, although most of it is classified or otherwise too sensitive to post on the Internet. In one of the strongest indications of how deeply the spirit of transparency has taken root at the State Department, guidance has now been published regarding the personal responsibility of Consular Officers for ensuring the proper performance of security clearances required as part of the visa application process.

9 FAM Appendix G, 101 ("Consular Officers' Responsibility") is a firm reminder to adjudicating officers that they are responsible for conducting a complete clearance to establish the eligibility of an applicant to receive a visa. According to this provision, this responsibility includes:

  1. Checking the Consular Lookout and Support System (CLASS) and other appropriate post records in all cases;
  2. Completing clearance procedures with other posts;
  3. Requesting security advisory opinions (SAOs) from the Department when required;
  4. Reviewing returns from IDENT and IAFIS fingerprint clearances; and
  5. (5) Reviewing returns from Facial Recognition (FR) checks.

9 FAM Appendix G, 101.1 ("Visa Lookout Accountability") emphasizes that U.S. consular officers will be held personally accountable for the failure to complete required clearances. At a minimum, this personal accountability will manifest itself as a "serious negative factor in the officer's annual performance evaluation;" in the worst case (the alien receiving a visa participates in a terrorist act following admission to the US) the consular officer could be held criminally liable under the Omnibus Diplomatic Security and Antiterrorism Act of 1986.

9 FAM Appendix G, 101.3 ("Supervisory Duties") underlines that consular supervisors are responsible for ensuring that all consular officers under their command fully understand their responsibility for conducting complete clearances, and the consequences for failure to comply with these procedures. To ensure this compliance, supervisors are responsible for reviewing issued visas to confirm that adjudicating officers have complied with clearance requirements. http://www.state.gov/m/a/dir/regs/fam/c22765.htm#

Advisory Opinions

Restatement of the documents and other information consular officers must include in their request to the Visa Officer for an Advisory Opinion because of the existence of a criminal conviction. http://www.state.gov/documents/organization/86943.pdf

Direct Filing of I-130 and I-360 Petitions

Summary of the rules for permitting US citizens to file I-130 and I-360 petitions directly with a consular post; and new guidance on the kinds of evidence needed to provide eligibility for this special process. http://www.state.gov/documents/organization/88018.pdf

HIV Waivers

Clarification with regard to the relatively new streamlined process permitting consular officers to grant a visa to otherwise eligible HIV-positive applicants without first seeking a waiver authorization from the Admissibility Review Office (ARO). Per this clarification, the length of stay for applicants wishing to utilize this streamlined process is limited to a maximum of thirty days, with no possibility for an extension of stay or change of status. Interesting, the FAM indicates that for those aliens who are not interested in waiving the opportunity to extend stay or change status in the US, the more formal waiver authorization procedure still remains an option; it also emphasizes that the average turnaround time for the formal ARO waiver procedure is extremely short: just 10 days in FY 2008. http://www.state.gov/documents/organization/86936.pdf

IV Waivers under INA 212(h) and (i).

Extensive updated guidance regarding the procedure for entertaining an immigrant visa (IV) waiver application for applicants eligible to seek waivers under INA 212(h) or (i). Includes advice as to when to interview the immediate relatives of a waiver applicant. http://www.state.gov/documents/organization/88021.pdf

In conjunction with the above: suggested format for the memorandum report of the waiver interview with an applicant for relief under INA 212(h) or (i). http://www.state.gov/documents/organization/88034.pdf

Also: updated list of list of contact information for DHS Officers abroad who join with consular officers in approving applications for waivers of grounds of ineligibility. http://www.state.gov/documents/organization/88025.pdf

Revised Procedural Notes on the Review of Form I-864, Affidavit of Support

These revised notes provide consular officers with section-by-section guidance for reviewing Form I-864. The guidance also relates to issues such as the use of assets to supplement the sponsor's income; joint sponsor requirements; and waiving I-864 when the alien has 40 quarters of earnings under the Social Security Act. http://www.state.gov/documents/organization/86989.pdf

VWP

Updated list to include new VWP countries such as the Czech Republic, Hungary and the Republic of Korea. http://www.state.gov/documents/organization/87162.pdf

Students:

Three updates were published with regard to the adjudication of student visa applications:

1) The Public Inquiries Division of the Visa Office has created a unit to respond to inquiries about individual student and exchange visitor visa cases. The Student/Exchange Visitor Visa Center can be reached via email at fmjvisas@state.gov.

2) A new version of SEVIS, expected to be released by spring 2010, will remove the requirement for the paper forms, but until then F/M/J visa applicants must present signed Forms I-20 or Forms DS-2019.

3) While F and M students and their dependants are not required to have U.S. medical or travel insurance in order to qualify for a visa, assurance that a student would be able to afford any health care expenses in the United States could certainly help a student overcome public charge concerns. http://www.state.gov/documents/organization/87373.pdf

New Ground for Inadmissibility

A new FAM provision provides guidance with regard to the Child Soldiers Accountability Act of 2008. The latter amended INA 212(a), to make individuals who have engaged in the recruitment or use of child soldiers on or after October 3, 2008, inadmissible under new section 212(a)(3)(G). http://www.state.gov/documents/organization/123516.pdf

I-94 Cards

Updated suggested notice to aliens who returned home with an I-94 card in their passports, on how to proceed to record departure from the US after the fact. http://www.state.gov/documents/organization/88039.pdf

FSO Posts Jeopardy Streak

Liz Murphy, a foreign service officer who has served at U.S. consular posts in Baku, Azerbaijan and Monterrey, Mexico racked up an impressive five consecutive wins on "Jeopardy!"

One of Ms. Murphy's best runs was when she responded correctly to four of the five questions on "The President's First 100 Days." Example: for $1,000, this President signed the U.N. charter in San Francisco in his first 100 days ("Who is Truman").

During her winning streak, Ms. Murphy prevailed over contestants including a United Methodist pastor from Parma, Michigan; an entertainment executive from Los Angeles, California; a health scientist from Atlanta, Georgia; and a sixth-grade teacher from Roseville, California. She was eventually defeated by a student originally from Garden City, New York.

The Answers and Questions from the various rounds played by Ms. Murphy can be found here: http://www.j-archive.com/showplayer.php?player_id=5987

Are You Smarter Than A Junior Consular Officer?

  1. Which of the following medical conditions renders a visa applicant ineligible to receive a visa?

  2. (a) "Class A" condition
    (b) "Class B" condition

  3. What do the letters "TDY" signify in the consular context?
  4. Because the United States does not have official relations with Taiwan, nor does it recognize Taiwan as an independent, sovereign state, employees of the Taipei Economic and Cultural Representative Office (TECRO) may not receive "A" or "G" nonimmigrant visa classification. What nonimmigrant classification do representatives of Taiwan employed by TECRO currently receive?
  5. What is the name of the program initiated by the Department of Homeland Security to monitor the academic progress and movement of foreign students and exchange visitors from entry into the United States to departure?
  6. According to the FAM, if an applicant for a nonimmigrant visa presents a valid passport in the country whose authorities have issued that passport, and if the passport contains an endorsement as not being valid for travel to the United States, should the consular officer issue a visa?
  7. The FAM describes the "natural condition" of this group of visa applicants as "single, unemployed and without property." What group is the FAM referring to?
  8. How many grounds of visa ineligibility are provided for by section 212(a) of the Immigration and Nationality Act (INA)?
  9. Canadian and Mexican citizens who commute to the United States for the purpose of full-time or part-time academic study may be eligible for which visa classification?
  10. What are the two types of nonimmigrant visa (NIV) fees?
  11. 10. What was the name of the U.S. Consul in Nagasaki, Japan who tried to dissuade a U.S. Naval officer from marrying a 15 year old local girl in Puccini's Madame Butterfly?

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

According to the Department of State, the visa wait times posted on the Department's website serve as "an important planning guideline" for gauging how long it will take to schedule an interview appointment at a U.S. consular post. Foreign travelers are urged to apply for a visa no later than 60 days before their anticipated travel date. Moreover: "since wait times vary by embassy and time of year, we strongly encourage travelers to review this information, as it is updated weekly." http://travel.state.gov/visa/temp/types/types_2665.html

As of the day these lines are written (May 22, 2009) the Department has not updated its visa wait times for an entire month. Accordingly, the following Top Ten table is updated only to April 21, 2009 (the date indicated on the Wait Times page for the last update).

Actually, the posted wait times for many of the 200+ consular posts are unchanged since at least the beginning of April (Caracas, Riyadh, Ottawa, Calgary, Belfast, London and Montreal for example), which indicates that they may not have been updated for even longer than "just" one month. Regrettably, the posted wait times may be in danger of becoming an unreliable source of information for foreign travelers.

# Country US Consular Post Visa Wait Time Increase/Decrease from January 2009 Last Month Top 10 Position
1 Cuba US Interests Section Havana 779 days 0 days 1
2 Venezuela Caracas 222 days 0 days 2
3 Saudi Arabia Dhahran 110 days +25 days 3
4 Bolivia La Paz 60 days +45 days New listing
5 Saudi Arabia Riyadh 53 days 0 days 4
6 (tie) Nigeria Abuja 42 days -3 days 5
6 (tie) Canada Ottawa 42 days 0 days 6
6 (tie) Canada Toronto 42 days +4 days 9 (tie)
7 Canada Calgary 40 0 days 7
8 Ireland Belfast 39 days 0 days 8
9 UK London 38 days 0 days 9 (tie)
10 (tie) Canada Montreal 30 days 0 days 10 (tie)
10 (tie) Syria Damascus 30 days -40 days 10 (tie)

Updated to April 21, 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 (222 days)
Middle East and North Africa Saudi Arabia/Dhahran (110 days)
Africa Nigeria/Abuja (42 days)
Europe and Eurasia Ireland/Belfast (39 days)
East Asia and Pacific Singapore (21 days)
Central and South Asia India/New Delhi (12 days)

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

  1. (a)
  2. "Temporary Duty"
  3. E-1. 9 FAM 41.22 PN1.1
  4. The Student and Exchange Visitor Program (SEVP)
  5. No, not until the endorsement has been removed by the appropriate authorities. 9 FAM 41.104 N3.1
  6. Students. 9 FAM 41.61 N4.2
  7. Nine
  8. F-3. 9 FAM 41.61 N14.5
  9. (a) Application processing fee (also known as the MRV fee); and (b)Issuance fee (also known as the reciprocity fee).
  10. Sharpless

Quote of the Corner

"No section does more to project a positive image of the United States than the consular section. Whether an applicant is issued or refused, every single applicant should walk out of an interview feeling that they were treated fairly, with respect, and were judged in accordance with the law…. The consular section is the face of the embassy, and, apologies to our Public Diplomacy officers, the single most influential factor in how foreigners view America." Calling a Spade a Spade: http://xcalling-a-spade-a-spadex.blogspot.com/2009/05/consular-section-underutilized-goldmine.html#comments

All rights reserved to the author.


About The Author

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


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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