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Proposed Framework for Department of State Consular Complaint Procedure

by Kenneth White

Introduction - 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 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.

Rationale for Complaint Procedure - The majority of consular officers conduct themselves professionally and treat visa applicants with respect. Nevertheless, there are at least nine factors which militate toward the implementation of a genuine Complaint Procedure by the Department of State:

  • 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;
  • American image overseas3 - Consular officers are the face of America, interacting with tens of thousands of individuals every day. For many applicants, it is their first contact with any American citizens. It is critical that the image projected is a positive one;
  • 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;
  • visa applicants pay substantial sums of money for review of their applications and are entitled to a fair and dignified process;
  • pro se visa applicants do not have a formal mechanism to challenge erroneous legal findings (attorneys for applicants may utilize LegalNet);
  • the calls of the Obama Administration for greater transparency, not less4, means that consular officers should be transparent5in how they are processing visa applications;
  • other agencies involved in the visa and immigration processes such as CBP and USCIS already have instituted Complaint Procedures and prominently display this information on their websites (USCIS also has an effective Ombudsman)6;
  • applicants in general are fearful of consular retribution for making a complaint, thus the Department must make it a priority to encourage applicants to file such complaints when warranted;
  • such a procedure will alert Washington to possible problem posts or officers.

Types of Complaints - The Complaint Procedure should address at least six types of situations: 1) violations of the Department of State's Customer Service Statement to Visa Applicants; 2) violations of the Foreign Affairs Manual, 3) legal errors; 4) officer misconduct; 5) officer discrimination; and 6) illegal activity. Among the "promises" outlined in the Statement are that the consular officer will treat the applicant with dignity and respect; as an individual and his case as unique; and explain the reason for a denial.

What the Complaint Procedure is Not - The Complaint Procedure is not an appeals organ or a means to vent frustration for a disgruntled applicant because his or her application has been denied. Consular officers are finders of fact and their findings are not subject to review. However, during the application process, applicants are to be given an opportunity to prove their eligibility and rebut findings of fact to ensure their accuracy.7 Complaints based on the six types of violations indicated above are reviewable. Invalid justifications for a 214(b) decision - such as punishment of an applicant or an applicant8 fitting a profile9 - are subject to review. "Dressing up" an invalid justification is unacceptable.

Proposed Procedure - A visa applicant should first seek redress at the consular post by writing to the consular manager. In most instances, the consular manager should be able to resolve the issue. For example, the consular manager can call the applicant in for a conversation or another interview (with no payment) outside of regular interview times. Strange as it may sound, the consular manager may find that an applicant is more interested in being treated with respect than in receiving a visa. This small gesture alone could save lots of grief and face - for all concerned.

If the applicant is not satisfied with the consular manager's response, the applicant should be able to write to the Department in Washington. This is important: consular managers 1) may not feel at ease in rebuking or disciplining their staff because they must work together in an insular environment; 2) may prefer to "circle the wagons" and take an "us" vs. "them" attitude; or 3) at a small post, may have interviewed the applicant him or herself and thus there is no immediate oversight.10 Therefore, an independent party must be able to review a complaint. At the least, the possibility of an independent party investigating will spur consular managers to take the complaint process seriously at the intake stage. Safeguards against applicant abuse can also be utilized; at the least, sworn statements under penalty of perjury of US law may be required in some cases.11

Washington's role in the procedure is straightforward. The person in the Department responsible for complaints should be a lawyer and well-trained in US immigration laws, regulations, and the Foreign Affairs Manual. This person should work in a newly-formed Complaint Division of the Visa Office, not in the Public Inquiries office. This official must be 1) independent; 2) authorized to investigate and go where ever the investigation takes him or her (for example, the investigator should, at a minimum, speak to the applicant or his attorney); and 3) authorized to take disciplinary action - the process must have "teeth" for it to be effective.

After the investigation, the official should provide a written conclusion to the applicant and the consular officer. If an apology is warranted, the Department should issue such an apology and publish a redacted version of the apology so that the public can see it. If a new interview is warranted, the consulate should invite the applicant for a new interview, without charge, with a new senior officer. That officer must report on the result of that interview to the Department. If the post is small and the applicant was aggrieved by a senior official, it would not be difficult to arrange a video meeting with the applicant, consular officer, and the Washington official. The point is not to set up a new bureaucracy, but ensure the objective, dignified disposition of applications12.

Public Notice - Every consular post should have the Department's Customer Service Statement to Visa Applicants on its website, translated into the local language. Every consular post should have the Complaint Procedure on its website, including the contact information of the consular manager and the individual within the Department of State in Washington who will be responsible for handling the complaint, translated into the local language. Every consular post should have a link to the Foreign Affairs Manual on its website. The website should also state unequivocally that legitimate complaints are welcomed and that those filing a complaint will not be subject to consular retribution.

Conclusion - In the last six months alone, our clients have dealt with an openly rude and hostile consular section chief in Surabaya; a consul general in Jakarta unfamiliar with the requirement of disclosing factual reasons for a visa refusal; a consular chief in Yerevan asking an applicant why he retained a lawyer; and the post in Moscow issuing visas with less than maximum validity, impermissibly readjudicating an approved petition, and seeking to require a principal visa holder to return to Moscow before issuing visas to his dependents, in violation of the Foreign Affairs Manual.13 Unfortunately, these consular issues are not atypical. In fact, over the course of our twenty years in handling consular matters, these problems are common: a screaming consular officer in Tashkent who would call security if an applicant questioned her decision; an officer in Warsaw who would not allow an applicant to use an interpreter and wrongfully accused him of a sham marriage (the shocked applicant had a stroke the following day and died); the post in Lagos sitting on an IV application for three years; an arrogant officer in Moscow who frequently called applicants "liars" and was profiled in a Russian newspaper for her abusive and condescending treatment of applicants14.

The continued occurrence of these problems - and lack of consular training and applicant redress - prompted me recently to submit this framework to the Assistant Secretary of State for Consular Affairs. In response, the Office of Public & Diplomatic Liaison stated: "We appreciate the information you provided us regarding the proposed changes to the current complaint procedures. We continuously review our procedures and consular operations worldwide to ensure the most efficient and effective use. By continually enhancing our procedures, our goal is to make the visa application process more convenient and efficient for prospective travelers." It is clear from this "response" that the ossified and ostrich-like Department does not take this issue seriously.

The above proposal may strike some as naïve or more than visa applicants deserve. But lest we forget, the Department receives hundreds of millions of dollars a year in fees from visa applicants; it "earns" millions on those it refuses. Applicants spend hundreds of millions dollars a year in travel expenses alone to attend mandatory visa interviews.15 While other agencies have in place a complaint procedure and in egregious situations, a court remedy is available, visa applicants do not have access to our courts. The least we can do is ensure that these applicants do have access to dignified visa process, a process carried out in accordance with a code of conduct and our laws and regulations16.

While the above is admittedly a barebones structure for the institution of a Complaint Procedure and much work should be done to flesh out this framework, the Department must take steps to do so. The Department must renounce its "see-no-evil, hear-no-evil" policy. A failure to do so would mean that the Department - and by extension, the US government - will continue to lose credibility and respect in its dealings with citizens of other nations. We will continue to alienate those we should be treating with dignity.

[2]Upon further inquiry to the Department, LegalNet refused to provide the telephone number or name of a contact person to follow up on a complaint.
[3]This image is the focus of an entire office within the Department, the Office of Public Diplomacy and Public Affairs, which oversees the Bureau of Public Affairs, the Bureau of Educational and Cultural Affairs, and Bureau of International Information Programs.
[4]E.g., January 21, 2009 "Memorandum for Heads of Executive Departments and Agencies," President Obama. "In the face of doubt, openness prevails…The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."
[5]Obviously, transparency has limits, such as information that is classified. However, that legal bulwark of first resort of consular officers for non-disclosure, Section 222(f) of the Immigration and Nationality Act, is often cited in error. Various FAM provisions, such as 41.121 PN1.2-1, and State cables explicitly provide for transparency in disclosing visa-related information to ensure accuracy in visa adjudications and to give applicants a reasonable opportunity to prove their eligibility.
[6]The Bureau of Consular Affairs is in dire need of an Ombudsman.
[7]2001 State 102813
[8]For example, consular officers sometimes use 214(b) to punish an applicant for the actions of a relative, who may have remained in the United States (e.g., arriving as an exchange visitor and marrying a US citizen).
[9]Profiling, such as automatic denial of single, young, female applicants from certain countries or individuals who have not travelled internationally, defeats the purpose of the interview process. A failure to treat each applicant as an individual and his application as unique expressly contradicts the Department's Customer Service Statement.
[10]Experience has shown that an invitation to attend another interview with a different officer after a senior officer has mistreated an applicant is an empty exercise.
[11]Of course, applicants may not be deterred by the prospect of the penalties of perjury. Because of the Department's failure to institute video recording of visa interviews, many complaints about rude and arrogant consular behavior may boil down to the word of an applicant versus the word of the officer. Nevertheless, at the least, the submission of numerous complaints by various applicants against a single officer will alert the Department to particular "problem" officers.
[12]"Remedies" are difficult in the consular context, of course, because of the limited number of officers at a particular post and the insular nature of those posts. However, it is hoped that with the implementation of a mechanism to ensure accountability, consular officers will be on their best behavior. A formal complaint will be the exception, not the rule. Other potential remedies (compensatory, punitive, Bivens-like, etc…), which would require systemic, regulatory, and/or legislative action, are beyond the scope of this article.
[13]As mentioned, some of these issues of a legal nature are resolvable for applicants with immigration lawyers using the LegalNet facility. However, legal issues for pro se applicants (the overwhelming majority), and all non-legal issues, such as treatment, are not resolvable under the current system.
[14]"If to close one's eyes and not notice the accent of Ms. Hall, one could envision the entire reality of a typical Soviet store in the mid-1980s: only instead of windows and shelves behind which stood a barking saleswoman, who perceived each customer as her personal enemy, taking from her the last 100 grams of "deficit" kolbasa…" Izvestia, July 16, 1994.
[15]Fortunately, other countries do not impose reciprocity: they do not require US citizens to personally attend visa interviews.
[16]Viewing these issues through a customer service prism alone, studies have shown that organizations primarily lose customers not because of an inferior product, but because of rude treatment. Our "product" is competitive with any country; it is this first contact with and treatment by US government officialdom which is critical in shaping opinion - whether we will gain customers or lose them. Providing a pleasant customer service experience is all the more paramount because unhappy customers are much more likely to tell others of their experience than a satisfied customer. With the power of the Internet, the power of the unhappy customer is now magnified many times over.

About The Author

Kenneth White is a member of the District of Columbia and Pennsylvania bars and was a long-time resident of Moscow, Russia, where he had his own immigration law practice. He is the co-author of the books "U.S. Nonimmigrant Visas, U.S. Immigration and Citizenship, and Handbook for Immigrants to Canada. Mr. White's law firm specializes in consular matters, EB-5 representation, and U.S. immigration issues.

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