Posts tagged “Consular Officers”

One usually does not associate the US Government Accountability Office with “interesting” reports, but last year’s report on E-2 visas was eye-opening. Of particular note are the reasons why E-2 applicants are denied. While the report is limited to examining certain countries, it provides critical insight into the thinking of consular officers and obstacles to obtaining E-2 visas. As a reminder E-2 visas are limited to nationals of countries with whom the United States has commerce and navigation treaties. The full list of countries can be found on the Department of State’s website, with 80% of all E-2 applicants originating from 9 countries: Japan, Germany, UK, France, Canada, Mexico, South Korea, Italy, and Spain. The majority of E-2 visa applicants are related to large investments (>$10 million) — think of managers and essential employees going from Japan to work in a large car plant in the United States. However, the…

Statutes of limitation apply in criminal law. They were put into place to prevent the prosecution of an alleged wrongdoing after a certain number of years has gone by (usually 5–7 years). There are many reasons for this: evidence goes stale; witnesses are unavailable; memories fade; to allow for certainty and repose of the parties; and to prevent inconsistent decisions. But there is no statute of limitations in visa/immigration law. With some exceptions, until recently, this has not been a significant problem. But along with the anti-immigrant politics of the Trump Administration has come a new visa phenomenon: consular officers are now using the lack of a statute of limitations to “exhume” perceived past visa transgressions. They are re-opening and reconsidering suspected visa violations — with no limitation of time or past consular “exoneration”. Consular officers are now revisiting such transgressions from 5, 10, or even 15 years ago -…

You have been denied under Section 221(g) of the Immigration and Nationality Act and despaired because the consular officer demanded a document that is unavailable or unobtainable. Although rare, this does happen — perhaps a birth certificate was lost and the archives in a city burned down in a fire, or the birth certificate lists the wrong information. This is what happened to a recent client — whose son was stranded outside the United States for more than two years while he attempted to resolve consular demands to have a local court amend the birth certificate of his son to reflect him as the father. There is hope in such situations. US immigration law anticipates such problems. If a visa applicant can show that there is “actual hardship” in trying to procure the document, not just “normal delay and inconvenience”, then the consular officer is empowered to waive the document…

Interpol conjures up images of a worldwide police tracking down “bad guys” on the run from home country authorities. But Interpol is not a law enforcement agency: it does not issue warrants and does not have the authority to make arrests. While the overwhelming majority of Interpol’s information-sharing capacity is dedicated to tracking down true “bad guys”, many home country governments abuse it. They manipulate Interpol into doing their dirty work, making bogus allegations to locate dissidents, political activists, and whistleblowers. As a result, Interpol issues Red Notices based on bare allegations made by a government — for example, fraud — not evidence, with a view to extraditing that person back to that country. Yet consular, Customs and Border Protection, and Immigration and Customs Enforcement officials erroneously use the Red Notice as shorthand to deny visas, detain individuals at the border, and arrest them inside the United States. It is…

One critical tool in challenging errant visa decisions of consular officers is through the Freedom of Information Act (FOIA). While the FOIA process with the Department of State is extremely limited in visa cases, sometimes consular officers rely on inaccurate information contained in US Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), Federal Bureau of Investigation (FBI), Immigration and Customs Enforcement (ICE) and Drug Enforcement Administration (DEA) files or improperly make visa decisions based on materials contained in those files. In such cases, FOIA requests can be extremely helpful. Lawyers can assist in three aspects of Freedom of Information Act requests: 1) properly formulating and lodging requests; 2) filing lawsuits when FOIA processing is delayed; and 3) assisting in appeals of government responses to FOIA requests. The proper formulation of a request can mean the difference between a process that can take 3 months or 12 or more…

I received a frantic call from a client recently at her naturalization interview. She was being advised by the interviewing officer that her application was going to be denied because she did not meet the residency requirements. In the run-up to the interview, the client and I had reviewed all of the relevant legal issues, including the physical presence and continuous residence requirements, and I assured her that she met the requirements for naturalization. The officer was kind enough to speak with me over the phone, but remained unpersuaded from her position that the residency requirements were not met. The client left the USCIS office and went home extremely upset, notwithstanding my attempts to calm her down and assurances that we were in the right and would be able to challenge any adverse decision. And then, two hours after the interview, something strange happened: I received an e-mail notification from…

Sometimes, it doesn’t make sense. When a potential client contacts us regarding a decision by a consular officer, we try to understand, first of all, why was the decision made? What caused the consular officer to make the decision he or she did? Often, we can understand the position of the consular officer; while we may not always agree with that position and in fact challenge the position, we at least can identify the problem. But sometimes, we are confounded. Take for example the situation of J. J contacted us after he had been turned around at the border by Customs and Border Protection. The CBP protocol memorializing J’s request to enter the US was clear: it said that J needed a different type of visa. He had previously been a student in the US, and he needed to obtain a visitor visa in order to return to the US…

Most people understand that if they are arrested, it is possible that their visas will be revoked. DUIs, drug possession, domestic violence, shoplifting — these are just some of the situations in which individuals with valid visas have their visas revoked. But what is less known — and understood — is that the Department of State has the ability to revoke visas for any reason in which eligibility is questioned. In other words, the inquiry into whether an individual qualifies for a visa does not stop at the time of issuance; it is a process that can be — and often is — reactivated at any time after issuance. In fact, we are seeing more revocations for non-criminal issues than criminal problems. So what leads to this re-examination of an individual’s eligibility? The trigger points for such a “verification reactivation” are numerous. For example, consular officers conduct validation studies, checking…

Mssrs. R, Y, K, K, and D each submitted entries for the DV–2018 Lottery during the registration period in the fall of 2016. They each had been divorced by an Uzbek court before the Lottery, so they indicated in their entries that they were divorced. Each of them was selected as a winner. After attending their interviews and presenting the court decisions as evidence of their divorce, they were advised by consular staff that they were being refused immigrant visas because they had not picked up their divorce certificates from the local registration office prior to submission of their entries: as a result, in the eyes of the Embassy, they were not officially divorced when they completed their Lottery entries. While the Uzbek law on divorce is ambiguous, it has been in effect since 2011. What is beyond dispute is that the issuance of a court decision renders the couple…

The case of Mr. B is illustrative of the consular tyranny prevailing in Tashkent and how Mr. Deeb has apparently impacted Department of State decisionmakers in formulating visa policy. Mr. B. has a high school diploma and thereby satisfies the Diversity Visa education requirements.[1] He is of Tajik background and grew up in Uzbekistan, where he learned the Uzbek language. Yet, when he attended his interview at the US Embassy in Tashkent, the consul tested not his knowledge of the Uzbek or Tajik languages, but his English- and Russian-language capabilities in violation of the State Department’s Foreign Affairs Manual: (b) A DV refusal must be based on evidence that the alien did not in fact obtain the required degree and not on your assessment of the alien’s knowledge level. You may not administer an exam, either oral or written, to test an applicant’s basic knowledge in order to determine whether…

As background, some information about the Diversity Lottery is in order. The State Department administers the Diversity Lottery program, which allows for individuals from low-immigration countries with a high-school education or its equivalent or certain work experience to qualify to immigrate to the United States.[1] Every year, more than 10 million individuals from all over the world participate, with approximately 100,000 selected to pursue the 50,000 visas available. The popularity of the Diversity Lottery extends to the citizens of Uzbekistan, a poor, predominantly Muslim country in Central Asia. The annual Lottery is held in three stages: 1) a registration period, in which individuals submit their entries (in the fall); 2) selection and notification of the winners (spring); and 3) visa interviews/adjustment of status process (starting on October 1), at which time nonrefundable processing fees are paid. For selectees processing overseas, they must receive immigrant visas by September 30, or before…

They call him The Tsar. And deservedly so. Who else can unilaterally, singlehandedly reinterpret Uzbek divorce law to deny numerous Uzbek Diversity Visa applicants? Who else can crush immigrant dreams using a variety of creative pretexts: disqualifying an applicant for failing to include a 3 day old baby (with no legal name) in a DV entry; a single woman for failing to include her nonexistent husband in her DV entry; a family for not including a second child in their entry, a child who was stillborn? Who else can have his staff ask a single woman applicant why she is not married or an infertile woman why she does not have more children? Who else can test an applicant’s knowledge of his third and fourth languages — i.e., not his native language and the language he learned in school — in black letter violation of the Department of State’s own…

Consular officers at the US Consulates and Embassy in India periodically require visa applicants to write “Voluntary Statements”. These Statements are used as admissions of guilt to deny and permanently bar visa applicants. But what is little known are the circumstances under which these “Voluntary Statements” are written — and the legal aspects of these Statements, some of which may in fact implicate consular officers themselves in potentially unethical and unlawful conduct. In this four-part series of articles, visa applicant and consular behavior, as well as the circumstances under which these Voluntary Statements are used, will be examined. As background, to the personal knowledge of the author, the Embassy in New Delhi, the Consulate General in Hyderabad, and the Consulate General in Mumbai (under Consular Section Chief Michael Evans) have all used these Voluntary Statements against visa applicants in India. Peculiarly, it does not appear that consular officers at other…

So to summarize the first three articles in this series, under threat of immigration and criminal consequences, consular staff in India have compelled visa applicants to write and sign Voluntary Statements. This staff have refused to turn over copies of the Voluntary Statements to the applicants;[1] used false pretenses to entice applicants to sign the Statements; and dictated the text of the Statements, which may contain material misstatements leading to decisions to bar the applicants. So if the Statements are “voluntary”, as consular staff insist, and the false statements therein subject the applicants to immigration and criminal consequences, what consequences should befall the initiators and overseers — consular staff and their managers — of the false statements? U.S. law has a number of criminal statutes dealing with false statements. 18 U.S.C. § 1621 is the perjury statute, providing for imprisonment up to five years and a fine.[2] The perjury can…

So why don’t consular officers wish to give copies of these Voluntary Statements to visa applicants? Maybe because they are not so “voluntary” after all. As explained to me by several visa applicants from India, they do not voluntarily provide these statements. Rather, they are bullied, coerced, and compelled to write the statements. Worse, consular staff dictate the text of the statement under threat of permanent bar from the United States. Even worse, the statements often contain materially erroneous information. One applicant said that US consular staff “threatened me that they will [b]an me from going back to USA if I don’t agree with their version of the story." Another stated: “At the end when she asked me to write down the statement, she especially [sic] dictated the whole thing to me." Not only had this applicant been advised to indicate wrong information in her statement, but the officer attempted…

The first indicator of the questionable nature of these Voluntary Statements are the lengths to which consular officers go to obstruct their disclosure to the visa applicant. As a general rule and enshrined by Section 222(f) of the Immigration and Nationality Act, visa records are considered confidential and not subject to disclosure. However, there is an exception for documentation submitted by the applicant; such documents are subject to disclosure. In the case of the Voluntary Statements in India, the consular officer does not give a copy to the applicant at the conclusion of the interview. This, notwithstanding the draconian visa consequences and criminal liability that the applicant has been exposed to by signing the Voluntary Statement. The consular officer’s “Bible”, the Foreign Affairs Manual (FAM), makes it abundantly clear that these statements are releasable to the applicant: 2. d. (U) Documents Releasable to Applicant: The documents listed below are deemed…

Z contacted our firm recently with an unusual request: help him submit a new B visa application to a US consulate after he was told that his previous application was “closed." Not understanding exactly what this meant, I asked him to forward any correspondence he had received from the consulate. The correspondence stated that because more than one year had elapsed since his interview, the case had been closed administratively and that if he wanted to pursue a US visa, he would have to reapply again. A reapplication meant that he would have to submit a new DS-160 application form and pay a new visa application fee. But this was wrong — his application had been pending under Section 221(g), and the US government failed to take any action on his application. The government cannot “sit on” an application and then use that non-action to “close” a case. If that…

In our previous blog, we highlighted the worldwide B visa refusal rates. But those DOS published rates do not convey the entire picture. As any politician knows, when making any tally, the actual number is not important, but how one determines that number that is. The Department of State is no different. The Department of State publishes adjusted refusal rates. The actual refusal rates are not published. In all likelihood the actual refusal rate is higher, and perhaps in some circumstances, substantially so. So how does the DOS “adjust” its statistics? It does so by only counting the last consular action on a particular applicant in a fiscal year. For example, if a businessman applied for a visa and was denied two times in 2015, and on his third attempt, he receives a visa in 2015, only the issuance will be counted; the two refusals will not be counted. If…

The Department of State recently published its 2015 refusal statistics for B visas. Several countries exceed the 60% mark: Syria, Gambia, Federated States of Micronesia, Mauritania, Liberia, Laos, Haiti, Somalia, Guinea-Bissau, Ghana, Cuba, and Afghanistan. Among the most populous countries, the refusal rates greatly vary: China — 10.03%; India — 23.78%; Indonesia — 8.71%; Bangladesh — 59.96%; Pakistan — 40.4%; Nigeria — 32.56%; Russia — 10.24%; Philippines — 27.96%; Turkey — 13.88%; and Ukraine — 34.03%. These 2015 refusal rates represent an increase over 2014 for most of these populous countries: for example, the refusal rate for India jumped nearly 4%; in Turkey — more than 6%; in Ukraine — more than 6%; the Philippines — more than 3%; in Pakistan — more than 2%; in Russia — more than 2%; and China — 1%. While on the surface these percentage increases may not seem significant, for these countries -…

With the DV–2016 registration period in full swing, this is a good time to raise awareness about potential pitfalls encountered by DV applicants. Perhaps the most seemingly innocuous requirement — submission of a photograph with the entry — is the one most easily overlooked. The Diversity Lottery has several rules relating to the photograph submitted with the entry: 1) it must be on a neutral, light-colored background (dark or patterned backgrounds are not permitted); 2) it must be in focus; 3) no decorative items such as sunglasses or other items can detract from the face; 4) non-religious head coverings or hats are not permitted; and 5) the person must be looking directly at the camera. But as is usually the case, the Kentucky Consular Center does not disqualify the entries at the time of intake during the registration period or after selection: it is only after the visa applicant is…