Consular Corner November 2013

by: Liam Schwartz* ------------------------

Test Bed for Expeditionary Diplomacy

The recent Inspection Report of Embassy Baghdad and Constituent Posts by the State Department’s Office of Inspector General (“OIG”) is, in many ways, a salute to those who serve at our hardship posts in Iraq. The following is a summary of just some of the report’s many findings. Mission Iraq: A “Test Bed” for Expeditionary Diplomacy Iraq still poses a threatening environment. The government of Iraq is unable to check civil unrest or respond to terrorist attacks and, as a result, U.S. embassy staff cannot move safely and independently outside compound walls. Most U.S. direct-hire employees serve 1-year tours. Until very recently, the Department of State would have “shuttered” a U.S. embassy facing security threats of this magnitude. But today, Embassy Baghdad is “a test bed for a new approach to U.S. overseas presence, often called expeditionary diplomacy.” The OIG report defines expeditionary diplomacy as follows:

“Expeditionary diplomacy is a concept associated with the Transformational Diplomacy Initiative announced by Secretary of State Rice in 2005. First linked to crisis response, it includes common elements: challenging work and difficult living conditions; operating in unsecure environments; long work hours and no rest days; no accompanying family members; short tours of duty and frequent rest and recuperation breaks; facilities to feed and provide other life support not otherwise available; prefabricated or other temporary housing; and numerous contract guards and service providers, usually from third countries working around the clock.”

In other words, in the scope of this “test bed,” the Embassy is the platform for testing a new diplomatic concept, and American officers are, well, the guinea pigs. The problem is, “test bed” is a term generally used to describe an experiment shielded from the hazards of testing in a live environment. Unfortunately, you can’t get more “live” than the environment at Embassy Baghdad. Do U.S. Foreign Service officers shy away from serving in this environment? Not at all, and in fact the opposite is true: The OIG reports that the Department filled about 92 percent of Iraq positions with volunteers last year.

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As part of this experiment in expeditionary diplomacy, the Embassy has employed some “atypical” security programs including the following:

• “Sense and Warn” – identifies, tracks, and warns employees of incoming rocket and mortar fire.

• “Biometric Access Control” – Daily iris scans or fingerprinting of local

employees. Dorothy, we’re not in Paramaribo anymore… The OIG report speaks of “a 24/7/365 Culture” in which mission employees work long, hard hours:

“Their work ethic is a norm at an expeditionary mission….Largely confined to the embassy compound because of security concerns, many have little to do but work. And they do, often 7 days a week.”

The drive behind this work ethic includes the appreciation officers have for Ambassador R. Stephen Beecroft:

“A high mark for a leader is the number of followers who say that their deepest concern is that they will disappoint him. Inspectors heard that expression of loyalty to the Ambassador repeatedly.”

Long work hours are accompanied by extremely difficult living conditions. A shortage of housing remains the single largest morale issue, with as many as four employees at times living in apartments designed for one person. The embassy is even compelled to have two social workers on staff to mediate roommate conflicts associated with these harsh conditions. Of Cars and Planes Because officers rarely venture beyond the international zone, the fact that Embassy Baghdad operates by far the largest fleet of motor vehicles in the Department appears counterintuitive. Per the OIG, the mission’s motor vehicle fleet totals 4,500 vehicles. And if you didn’t know, the Department of State maintains its own air fleet, “Embassy Air,” for the benefit of Mission Iraq. According to the OIG:

“Based in Amman, Jordan, Embassy Air carried 19,306 passengers to destinations around Iraq during a recent 6-month period. Embassy Air is the mission’s most secure lifelines to the outside world and the only means of medical evacuation countrywide. “

The Embassy Baghdad Consular Section

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The consular section, led by Consul General Michael Garrote, is said to do “good work in a difficult environment.” The OIG notes that although situated in an Arab-speaking nation, the consular section’s effectiveness is:

“…hampered by a dearth of Arabic-language speakers….Fewer than half the consular employees speak Arabic and only three of the Arabic-speaking officers can conduct the full range of interviews unassisted.”

Perhaps in evidence of the expeditionary nature of Embassy Baghdad’s consular services, the post’s website includes the following notice for those seeking consular services:

“Weapons are not allowed in the Consular waiting room.” Administrative Processing The consular section’s effectiveness is also seriously hampered by Washington-based administrative processing of visa applications. One example involves Kurdish visa applications:

“A serious issue facing the consular section is the inability to process Kurdish visa applications in a reasonable timeframe. The situation results from the lack of timely Washington-based administrative processing.”

Another example involves visa referrals:

“The section handles nonimmigrant visa referrals correctly, but delays in administrative processing in Washington generate an unusual number of high-level requests for status checks and constant pressure on consular officers from referring officers.”

A third example involves applicants for special immigrant visa applicants, and the fate of their passports:

“The immigrant visa unit has been holding thousands of Iraqi passports for special immigrant visa applicants and their immediate family members pending the results of administrative processing. Some of these passports have been held for several years. Consular sections worldwide are advised not to retain travel documents for indefinite periods because these documents belong to the applicants, not to the U.S. government. These families cannot leave the country because the consular section has their passports. In addition, if the embassy were to draw down or evacuate, the section would have to destroy these travel documents.”

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Needed: Normal Diplomacy Sadly, despite the extraordinary sacrifice of American servicemen in and for their country (nearly 4,500 KIA and over 32,000 WIA), only 13 percent of Iraqis have a favorable view of the United States. This statistic is likely to remain dismally low until expeditionary diplomacy becomes normal diplomacy, and American officers can freely engage with Iraq citizens in their homes, schools and businesses.

For Some at State, an Awkward Three Words Consular officers are busy people, and need to be able to read the Foreign Affairs Manual (“FAM”) without having to stop and wonder what Washington is trying to say. With this in mind, the State Department crafted a set of standards aimed at making the wording of the FAM as clear and easily understood as possible. These standards are set forth in the Foreign Affairs Manual Handbook, at 2FAH-1 H-111.1a One of the FAM Handbook’s principle standards is the following:

“Clearly specify whether and how the reader has authority to exercise discretion to deviate from instructions or guidance you are providing.”

2FAH-1 H-111.1b In order to clearly specify the scope of the reader’s discretionary authority, the drafters of FAM provisions are instructed to utilize three words: “must,” “should” and “may.” As per the Foreign Affairs Manual Handbook:

“Use sentences with the auxiliary verbs ‘must,’ ‘should,’ and ‘may’ to describe the level of discretion.

(1) Mandatory: Use ‘must’ to advise the reader that he or she has no discretion to deviate from the instructions.

(2) Recommended: Use ‘should’ to advise the reader that the instruction you are providing is the Department’s preferred approach. However, the word ‘should’ permits the reader to deviate if the reader can accomplish the objective in another way.

(3) Advisory: Use ‘may’ to advise the reader that he or she has the option to pursue alternative courses of action.”

2 FAH-1 H-112.3

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Volume 9 of the FAM abounds with examples in which the State Department clearly specifies whether and how consular officers have discretion to deviate from visa-related instructions or guidance:

Mandatory (“Must”) Instruction or Guidance

FAM Cite Meaning of “Must”

“Although Foreign Service Nationals (FSNs) at all posts are responsible for data entry and visa printing, a Foreign Service Officer (FSO) must be responsible for the adjudication of the application and authorization for issuance.”

9 FAM Appendix D, 302 Even if an FSN has worked at post for 25 years and knows NIVs like the back of her hand, an FSO who arrived 25 days ago to begin his first-ever tour has the sole responsibility for saying “yes” or no” to visa applicants.

“In determining whether visa applicants are entitled to temporary visitor classification, you (the consular officer) must assess whether the applicants (a) Have a residence in a foreign country, which they do not intend to abandon; (b) Intend to enter the United States for a period of specifically limited duration; and (c) Seek admission for the sole purpose of engaging in legitimate activities relating to business or pleasure.”

9 FAM 41.31 N1 Even if the visa applicant is the daughter of a super-important embassy contact, the consular officer cannot simply hand her the visa; the officer has to find that her answers to (a), (b) and (c) are all “yes.”

“It is most important to promptly answer inquiries from Members of Congress….Posts are reminded that

9 FAM Appendix E, 701 You’d better be prompt with the people who vote on our annual budget.

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Congressional inquiries must be answered within 3 working days.

Recommended (“Should”) Instruction or Guidance

FAM Cite Meaning of “Should”

“Congress… conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers of nonimmigrant visa (NIV) ineligibilities to the Department of Homeland Security (DHS) for approval. You should not hesitate to exercise this authority when the alien is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests.”

9 FAM 40.301 N1 Consular officers do not have to liberally exercise this authority, but the Department prefers that they do.

“As the E visa is becoming ever more popular, consular officers should remember that the basis of this classification lies in treaties which were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and the treaty country. It is with this

9 FAM 41.51 N1a It is not essential that E Treaty Officers be guided by the spirit of facilitating bilateral economic interactions, but to the folks in Washington this is the preferred mindset.

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spirit in mind that cases under INA 101(a)(15)(E) should be adjudicated.” It is most important to promptly answer inquiries from Members of Congress…. Replies to such inquiries should be courteous and friendly…”

9 FAM Appendix E, 701 Do try not to lose your cool with the people who vote on our annual budget, no matter how annoying they may appear.

Advisory (“May”)

Instruction or Guidance

FAM Cite Meaning of “May”

“The approval of a petition by DHS does not relieve the alien of the burden of establishing visa eligibility in the course of which questions may arise as to his or her eligibility to L classification. If you develop information during the visa interview (e.g., evidence which was not available to DHS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue.”

9 FAM 41.54 N3.2b The interviewing officer can ask the applicant for additional information, but the officer also has the option to simply deny the application.

“When a letter is received from an attorney in the United States and you are reasonably satisfied that

9 FAM 40.4 N12

You can be courteous to attorneys, but the Department is giving you the option to pursue an

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an attorney-client relationship exists, correspondence between the post and the attorney may be treated with the same courtesy as provided to the visa applicant.”

alternative course.

“It is most important to promptly answer inquiries from Members of Congress. Posts may respond to inquiries by cable, e-mail, letter, or fax.

9 FAM Appendix E, 701 If a Congressional assistant is particularly annoying, you can always respond by snail mail.

It seems obvious that ensuring consular officers clearly understand the limits of their authority– such as having no discretion to let FSNs adjudicate visa applications in their stead - is integral to respecting the very laws which consular officers are charged with applying. It is thus surprising to see the Department of State argue that consular officers actually do have discretion in carrying out duties which the FAM clearly says are “musts.” One example can be seen in the context of a provision calling for the scanning of supporting documentation in NIV waiver cases:

“Consular officers must scan all supporting documents into the NIV case.”

9 FAM 40.301 N2 Consular officers would naturally read the above provision to mean that they have to scan all supporting documents into the NIV case. But according to State, they’d be wrong to do so. Responding to concerns expressed by the American Immigration Lawyers Association that documents submitted to consular officer in support of waiver requests were not being scanned into the NIV case, State said this:

“Consular officers exercise judgment in carrying out their responsibilities under the FAM…. The Department sent guidance to all posts in June 2012 reminding consular officers to scan all relevant supporting documents into the case….The use of the word relevant is inferred in the FAM guidance.”

Consular Corner, by Liam Schwartz

In other words, State advises consular officers to read words into text which State itself has written. Not only is this a bit awkward, but State also appears to be undermining its own crusade for making the wording of the FAM as clear and easily understood as possible. Is State saying that consular officers also exercise judgment in carrying out their mandatory responsibilities under the Worldwide Nonimmigrant Visa Referral Policy, which provides as that “all visa referral documentation, including visa referral forms, must be scanned into each individual visa case?”(9 FAM Appendix K, Exhibit I.) Does State mean that posts have the discretion not to scan all CAT I refusal files into the CCD? (“Posts must electronically scan all unclassified Category I refusal files, including all documents associated with the case, into the CCD.” 9 FAM Appendix F, 101.1) Even more awkward: State definitely knows how to use the word “relevant” when it wants to. Indeed, just below the “must scan all supporting documents” NIV waiver provision, State instructs consular officers as follows:

“You must provide all relevant information regarding the alien's case to CA/VO/L/A when requesting the Department's determination of whether a waiver should be recommended.”

9 FAM 40.301 N6.2 Yet another difficulty is the fact that since September 30, 2010 State has updated 9 FAM 40.301 no less than six times. If State really wanted to clarify that “must scan all supporting documents” is anything else than a mandatory directive, it has had at least half-a-dozen opportunities to do so. Consular officers are busy people, and need to be able to read the FAM without having to stop and wonder what Washington is trying to say. If State is serious about its own standards for making the FAM as clear and easily understood as possible, it should stop arguing that “must” can mean “should” can mean “may.”

London Rules

U.S. Embassy London’s visa webchat of November 26, 2013 proved a rich source of rules which are generally applicable to visa processing at U.S. consular posts worldwide. Visa Applicant Must be Physically Present in Consular District “Q: I am living in UK and I am preparing for a E-2 visa application (My daughter is my only dependent and she is 6 at the moment). My daughter has severe eczema and is receiving herbal treatment in China (I am able to supply

Consular Corner, by Liam Schwartz

documents from the doctor). Her skin condition will not allow her to travel much. Can I take my passport and my daughter’s passport and go to London embassy for the E-2 visa interview when my daughter is in China? Answer: Regardless of age, all visa applicants are required to be physically present in the consular district at the time of application.” Departure of Applicant from Consular District During Administrative Processing “Q: My non-immigrant dependent visa application is currently in administrative processing and it’s been more than couple of weeks now. I am not a British national and am currently on a dependent work visa in the UK. If I do not receive the US visa prior to my UK visa expiration, would it be possible to transfer my case to the US consulate in my home country? A: It is not possible to transfer a nonimmigrant visa application to another U.S. Embassy or Consulate. If you are not in the United Kingdom once the additional administrative processing of your application is complete, and you are unable to return to continue with the visa application process, then you will be required to submit a new application at the U.S. Embassy or Consulate with jurisdiction over your new place of residence. If you depart the United Kingdom while the processing of your application is ongoing, please notify us via our contact form at http://london.usembassy.gov/niv/contact_page.html” K-1 Medicals – Must be Valid for CBP Admission “Q: For the K-1 visa, does the 6-month maximum validity begin at the visa interview or the medical exam? We have all paperwork ready to schedule a medical, but want to ensure the validity coincides with our travel date in July. A: If a fiancee visa is issued to you, you must present yourself at immigration in the United States prior to the expiration of your medical report.” In addition to the Q&A, Embassy London provided a number of Visa Processing tips and updates, including the following: NIV Waivers “Waiver applications take six months to process even if the applicant has received a previous waiver.” UK “Cautions” Policy under Review “Currently U.S. Government policy is under review regarding criminal cautions in the United Kingdom.” Possibility of U.S. Travel Ban During Pending Prosecutions

Consular Corner, by Liam Schwartz

“While a caution or conviction prior to the age of 18 may not render the person ineligible for a visa, they are, nevertheless, required to apply for a visa and declare their criminal history. Travelers in these situations are not eligible for the Visa Waiver Program (ESTA). The same applies to impending prosecutions - juvenile or adult; a visa is required. While you may apply, you should be aware that it may not be possible to adjudicate your visa application until the disposition of your criminal case is known.”

Changes to the Foreign Affairs Manual (FAM) Monthly Report Application of INA 222(g) to Canadians and Mexicans (9 FAM 40.68 N2.1) INA 222(g) renders void the visas of nonimmigrants who remain in the United States "beyond the period of stay authorized by the Secretary of Homeland Security.” Moreover, unless it is determined that "extraordinary circumstances" exist, the applicant must apply for a new nonimmigrant visa (”NIV”) in the country of his or her nationality. The sanctions on overstays set forth in INA 222(g) apply only to individuals meeting the following two criteria: (1) Admitted to the United States on the basis of an NIV; and (2) Remained beyond the period of authorized stay. With this in mind, the Department of State has clarified the application (or non-application) of INA 222(g) to Canadians and Mexicans by inserting the following provision at 9 FAM 40.68 N2.1:

“INA 222(g) does not apply to aliens:

Who were admitted from Canada or Mexico with an I-68 or DSP-150 Border crossing card, or any other Canadian or Mexican entrants to the United States who were not issued with an I-94 (and who were not subsequently formally found to be out of status by USCIS or an IJ.)”

Those interested in further examining the applicability of INA 222(g) in a host of possible scenarios should click here for the Department 0f State’s Summary Chart of INA 222(g) Scenarios (9 FAM 40.68 Exhibit I).

Consular Corner Quiz

1.The relatively safe area of Baghdad in which the U.S. Embassy is located is called the International Zone. What is the name given to the areas of Baghdad outside the international zone? 2. Before issuing an F-1 visa, a consular officer needs to find that the student has enough readily available funds to meet all expenses for completing: (a) the first year of study. (b) the second year of study.

Consular Corner, by Liam Schwartz

(c) all four proposed years of study. 3. Which of the following three security-driven expenses at Mission Iraq has the highest annual cost? (a) Employee overtime (b) Food for U.S. Government employees and contractors (c) Third Country National hiring 4. As a general rule, should consular officers deny a student visa to an applicant from a developing country seeking to study Ancient Greek, a field which appears clearly impractical for developing a career in the applicant’s homeland? 5. When the Department of State determined that fingerprints and a photo image should be required as biometric identifiers in visas, it did so in consultation with two other Departments; one was Homeland Security; what was the other? 6. In the context of which visa classification did the State Department write: “If everyone is specialized, then no one is?” 7. Under the Nonimmigrant Visa Interview Waiver Pilot Program, certain holders of passports from one specific country, who are applying for a visa for the first time, may be granted a waiver of the interview and fingerprint collection requirements. What is that country? 8. What is the correct application form for processing K-1 nonimmigrant visas? (a) DS-156 Electronic Visa Application form (EVAF) (b) DS-156K Nonimmigrant Fiance Visa Application (c) DS-160 Nonimmigrant Visa Electronic Application 9. Certain immediate relatives of U.S. citizens are authorized, before leaving the United States for their immigrant visa appointments, to apply for a provisional waiver of grounds of inadmissibility. Which grounds of inadmissibility may be covered by a provisional waiver? 10. The Secretary of State’s authority to waive the in-person interview requirement has been delegated to the Deputy Assistant Secretary (DAS) for Visa Services. Who is the career Foreign Service officer who is currently the beneficiary of this delegation of authority?

Top Ten Visa Wait Times at U.S. Consular Posts, November 2013*

# Country Consular Post

This Month (Nov. 2013) Visa Wait Time

Last Month (Oct. 2013) Visa Wait Time

Last Year (Nov. 2012) Visa Wait Time

Average Monthly Wait Time During last 12 Months

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1 Cuba Havana 174 days 167 days 999 days 400 days 2 Lebanon Beirut 108 days 109 days 16 days 36 days 3 Venezuela Caracas 59 Days 98 days 87 days 44 days 4 Eritrea Asmara 50 days 50 days post closed 66 days 5 Yemen Saana 49 days 49 days 63 days 6 Egypt Cairo 45 days 45 days 27 days 21 days

7 Haiti Port au Prince 41 days 171 days 28 days 78 days

8 Canada Vancouver 35 days 35 days 37 days 23 days 9 Bangladesh Dhaka 30 days 37 days 7 days 13 days 10 (tie)

Sierra Leone Freetown 29 days 5 days 21 days 26 days

10 (tie) Tunisia Tunis 29 days 27 days 28 days 21 days

** Updated to November 4, 2013 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 Cuba/Havana (174 days) Middle East and North Africa Lebanon/Beirut (108 days) Africa Eritrea/Asmara (50 days) Central and South Asia Bangladesh/Dhaka (30 days) East Asia and Pacific Australia/Sydney (28 days) Europe and Eurasia Italy/Milan (16 days)

Answers to Consular Corner Quiz 1.The red zone. 2. (a) 9 FAM 41.61 N6.1-1 3. (b) The annual cost of food is about 5 times that of the other two expenses. 4. No. 9 FAM 41.61 N4.3 5. The Department of Justice 6. The L-1B visa classification. http://travel.state.gov/pdf/Guidance_on_L_Visas_and_Specialized_Knowledge-Jan2011.pdf 7. Brazil. 9 FAM 41.102 N9

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8. (c) http://travel.state.gov/pdf/Using_ds_160_for_K_Visa_Applications_October_2013.pdf 9. The unlawful presence grounds of inadmissibility under INA section 212(a)(9)(B)(i)(I) or section 212(a)(9)(B)(i)(II) http://travel.state.gov/pdf/Supplemental_Guidance_for_Processing_I-601a_Provisional_August_2013.pdf 10. Edward J. Ramotowski

Quote of the Corner “While it is easy to despair at the many failings of the U.S. political process, it is important sometimes to celebrate the amazing resilience of American society.” Edward Alden of the Council on Foreign Relations, commenting on the record high number of international students who attend U.S. colleges and universities. *Liam Schwartz is the principal in Liam Schwartz & Associates, a corporate immigration and consular law firm. Liam can be reached on Facebook, Linked-In and Twitter and by email at Liam@lsa-law.com. All rights reserved to the author.