Strategies for Waivers of Ineligibilities, a Process in Three Stages–Part 3

Department of State, Harry Truman Building

The US Embassy in Berlin, Germany

US Embassy Colombo, Sri Lanka

old US Embassy Bucharest building

This is the third in a series of posts about the waiver process, and will address strategies for obtaining a favorable consular recommendation that waiver relief be granted under INA Section 212(d)(3)(A).

Although, as mentioned previously in this series, consular officers are not responsible for approving waiver applications, they do have significant influence on the decision ultimately taken by the Admissibility Review Office (ARO) in the Bureau of Customs and Border Protection, Department of Homeland Security.  The ARO is not obliged to follow the recommendation of the interviewing consular officer, but a waiver request sent to the ARO without a favorable consular recommendation will nearly always be denied.  Therefore, the most important objective of the visa interview for the client who needs a waiver is to get the consul’s favorable recommendation of waiver relief.

The consul’s job in waiver cases is to weigh inadmissible applicants according to the Hranka standards, criteria set forth in a Board of Immigration Appeals (BIA) case (Matter of Hranka)  for use by adjudicators in determining whether waiver relief is appropriate for an individual applicant.   Hranka instructs adjudicators being asked to recommend or approve a waiver request to evaluate the seriousness of the conduct/action leading to an inadmissibility finding,  the risk of harm to the U.S. if the inadmissible applicant is admitted, and the purpose for which the applicant seeks to enter the U.S.,  in making their decisions.  Consular officers are quite familiar with the Hranka standards, so it’s probably not a good strategy either to prepare a client to orally parrot them back to the consul in requesting a favorable consular recommendation, or to devote space in a written request for waiver relief explaining what they are.  Instead, the emphasis should be on demonstrating that the criteria are satisfied by the applicant’s individual circumstances.   Attempting to over explain Hranka or endeavoring to apply the criteria to an applicant who clearly would not be able to meet them are mistakes commonly made by counsel.

There is no formal application process or special form for requesting a 212 (d)(3)(A)  waiver,  so the client should be well prepared by counsel before their visa interview on how the process works generally.   Most importantly, they need to understand they must make an oral request for favorable consideration of waiver relief as soon as the consular officer advises him or her that a visa is being denied because of their 212 (a) inadmissibility.    The client should also have a written request for favorable waiver recommendation that she or he can give to the consul at the interview, although one is not required.   This document should make clear that waiver relief is available for the client and make the case that the client satisfies the Hranka requirements.  It should be short, straightforward and focused on the waiver issue.  One of the principle mistakes attorneys make when requesting favorable consideration of waiver relief is attempting to reopen the question of whether the client is, in fact, inadmissible in the first place.  This is a strategic error not only because it is unlikely to succeed in reversing the inadmissibility finding, but also it is likely to irritate the consul who must decide whether or not to recommend waiver relief.

The best researched legal arguments for why waiver relief is available and should be granted to an inadmissible client will go nowhere if the adjudicating consular officer does not want to make a favorable recommendation.   Consular consideration of whether to recommend waiver relief requires both the interpretation of facts and the analysis of the applicant’s behavior and motives in seeking the waiver.  This points to the heart of the matter–waiver recommendations are discretionary, not required by law even if all the right boxes are ticked.  An irritated consul, compelled to read a lengthy and contentious legal argument and confronted with a client whose only grudgingly acknowledges his past actions and has no compelling reason to travel, is not likely to incline sympathetic.

The timing of the request also matters.  Someone whose inadmissibility arose recently, for example, would have a harder time obtaining a favorable consular waiver recommendation, particularly if the act or offense leading to inadmissibility was of a serious nature, such as conviction of a crime involving moral turpitude.  There is no requirement that a specific period of time elapse before someone can be granted waiver relief,  but the closer the request is made to the actions that led to inadmissibility, the less likely that the consul will be willing to send a favorable recommendation to the ARO.  In other words, unless there is a compelling urgent reason to travel, some distance in time between the offending act and the application for clemency is often beneficial.

An inadmissible applicant whose purpose for travel is not considered to be compelling will also frequently fail to receive a consular recommendation.  Attending an important family event, such as a wedding or funeral, receiving medical treatment, or visiting an ill or dying family member will generally be seen to be compelling.  Attending a business meeting or tourism will be a tougher sell–again, particularly if the inadmissibility is recent.

Atmospherics during the interview are also important.  A belligerent, hostile, or defensive applicant who fails to acknowledge his or her inadmissibility or attempts to argue that the initial consular finding was flawed or erroneous is going to have an uphill battle gaining a favorable recommendation;  someone who is contrite, acknowledges his or her actions, and makes a respectful request for waiver relief will be more likely to get one.

An applicant who fails fails to get a consul’s favorable recommendation for waiver relief can nevertheless request that the waiver application be submitted to the ARO and the   consul will send on the request on without any recommendation.  While these requests are rarely successful, the ARO will occasionally approve the request.









Strategies for Waivers of Ineligibility, A Process in Three Stages, Part 2

Clients with 212 (a) ineligibilities, both acknowledged and potential, must be well-prepared for their visa interviews.  If the record confirms or the intake process elicits information that points to ineligibility, the focus must then shift to ensuring that the client is fully aware of what is at stake, understands what the consul will be evaluating, and what the possible outcomes will be.

Being well prepared means several things.  First, it requires a full understanding of what is going to take place at the interview.  For clients facing possible 212 (a) inadmissibility , this means educating them to the fact that all of their interactions with U.S. officials–at prior visa interviews,  at ports of entry, at adjustment hearings, and even local arrest records–are available to the adjudicating consul.  There is no point in denying what the record reveals to have taken place.

Secondly, they need to understand the consequences of their actions or omissions under the law. Although some clients may already know they are inadmissible and will reveal this when they engage counsel,  it’s more likely that they will  be unaware of the potential consequences of their past actions, or even seek to conceal them.  For this reason it is crucial that counsel be able to get to the truth of the matter–both to ensure proper representation, and to protect the client’s interests when they reappear before either a consul or immigration official.  This requires clear explanation of some rather vague legal concepts–such as “crimes of moral turpitude,” “misrepresentation,” “alien smuggling,”  and “unauthorized stay.”  In seeking to help a client understand how the law applies to his or her actions,  it’s important to keep in mind how arcane much of the subject matter can appear to a layman.  Stick to what makes sense–“some crimes can make you ineligible for a visa;”  “telling a U.S. official something that is not true or is misleading can make you ineligible for a visa”;  “Staying in the US for too long after your stay expired can make you ineligible for a visa “;  “Helping a friend or family members get into the U.S. improperly can make you ineligible for a visa”.

If you’ve educated your client on the risk he or she faces of being denied the ability to travel to the U. S., the next step is to explain the waiver process.  There’s lot of misleading information out there about waivers, and it is a complicated process.  A consul makes the decision whether or not to recommend a waiver, but only the Department of Homeland Security (DHS) in the United States can make the final decision, and it may not go along with a consular recommendation.  A consul may recommend a waiver if she determines that the applicant has a valid reason to travel and, except for the 212(a) inadmissibility would otherwise be qualified for a visa (e.g., meets the other statutory requirements for the visa).

Accordingly, it is a waste of time and potentially counterproductive for a client or his counsel to make a legal case for a waiver to the consul.  The objective instead should be to demonstrate a legitimate purpose for travel, lack of immigrant intent, and only then to request consideration of waiver relief.  If an applicant fails to overcome the statutory presumption of being an intending immigrant under section 214(b), or fails to meet the statutory requirements for issuance of an L or E visa, for example, his or her application will be denied under that section of the law, and the question of whether or not waiver relief is available and should be recommended will not be considered by the adjudicating consul.

Another common misconception is that a waiver of ineligibility is a right, or that the granting of it is pro forma.  Timing matters.  A waiver request too soon after a finding of inadmissibility can result in a consular decision not to recommend it to DHS.

Moreover, obtaining a waiver is not a get out of jail free card or a license to engage in any permissible activity while in the US.  A waiver is tied to the specific purpose for seeking admission.  It does not remove inadmissibility permanently.  Once someone is found inadmissible, he or she will always require a waiver for future travel, with rare exceptions, such in the case of someone whose inadmissibility under 212 (a)(9) is limited to either three or ten years.  Also, someone who has previously qualified for waiver relief can, at a future visa application, be denied it.  This can happen if the applicant engaged in activities while in the U.S. that were inconsistent with his or her statements or claimed purposes for travel made at the time of his initial waiver request, or if the Department of State obtains newly sourced information casting doubt on the client’s actions or intentions .  For example, someone who requires a waiver and obtains one after asserting the need to travel to the US for a one week business meeting in New York can sabotage his or her ability to obtain a future waiver if they end up staying for a month, or if they spend their time in the US on tourism at a different location.  In each instance, the applicant’s credibility and ability to acknowledge the seriousness of their inadmissibility status has been damaged.

Persuading a consul to recommend waiver relief is but the first and necessary step to restore a client’s  ability to travel to the U.S. in future.  In  the next part of this series, I will talk about strategies for persuading a consular officer to recommend to DHS that waiver relief be granted to an inadmissible client–and what to do when a client who is inadmissible fails to overcome section 214(b).





Consular Processing–a Better Choice for Some Immigrants

With USCIS phasing out interview waivers for adjustment applicants in employment-based immigrant visa categories, consular processing can sometimes be the better option.

Under U.S. law, some persons who apply for immigrant status can “adjust” into it if they are already legally present in the United States. For example, someone who is a student in valid F status can apply to adjust status to permanent resident if they marry a U.S. citizen who then files an immigrant visa petition for them. Similarly, someone who is in an employment authorized nonimmigrant visa category can adjust status based on an I-140 immigrant petition and labor certification filed on their behalf by a prospective employer. Such individuals and many others have been able to benefit from filing an I-485 application to adjust status, to be adjudicated and approved once a visa number is available for them.

The advantages of this “adjustment” process are considerable—the process takes place entirely in the U.S., and counsel can be present. Moreover, federal regulations (8 CFR 245.6) require that persons adjusting to permanent resident status in the United States have a personal interview before an immigration officer, but also give USCIS the right to waiver the interview requirement when it concludes that an interview is unnecessary. In practice, this has meant that for some years most employment-based adjustments—that is, someone adjusting status from a non-immigrant status to an employment based immigrant status—had the personal interview requirement waived. Those individuals and their attorneys could count on a paper adjudication that did not require them to attend an appointment at a CIS field office.

No more. USCIS has recently announced that it is phasing out interview waivers for employment-based immigrant visa categories. Such applicants must now be prepared to discuss their professional backgrounds, experience, and the specifics of the position being offered to them with an immigration official. If that official doesn’t find the circumstances—or the applicant–credible, the adjustment could be denied.

This doesn’t mean that adjustment of status is riskier than consular processing. The advantages it offers are still considerable—applicants already present in the US can minimize disruptions to their work and personal lives by adjusting rather than traveling to a consular section to process their visa. Denials can be appealed; counsel has many tools to deploy to ensure the client gets a fair hearing.

However, there are situations where consular processing can be the better option, both for employment-based and family-based adjustment applicants.   For instance, if the individual originally obtained a work-authorizing nonimmigrant visa from a consular post and later becomes the beneficiary of a related immigrant visa petition, the original issuing post may have access to information about the applicant and his or her professional background before traveling to the US that can make for a more straightforward adjudication. Similarly, someone whose past interactions with U.S. consular officials are well known and documented may not have to spend as much time explaining or clarifying his or her circumstances before a consular officer as would be the case before an immigration officer.

An immigrant applicant who applies to adjust status relatively soon after entering the U.S. may find run into problems if the consular records show that his stated purpose for requesting an NIV and period of intended stay are inconsistent with his or her actions after entering the U.S. It may seem counterintuitive, but applicants who return to the consular post that issued their last NIV to consular process may have an easier time explaining their actions to an IV officer than would be the case with an immigration officer, who will only have access to the computer records and will lack knowledge of the individual’s home country or family circumstances. This is particularly important when the applicant is on record as having asked for a very specific and limited stay in the U.S.

Another group of IV applicants who would benefit from consular processing over adjustment of status are those who previously acknowledged their status as the beneficiaries of pending immigrant petitions in connection with an application for a visitor’s or business visa. Consuls will issue temporary visas to persons who are waiting to immigrate if they believe that the individual does not plan to use their visa to gain entry for the purpose of adjustment. Someone who received a nonimmigrant visa under those circumstances runs a real risk of being found to have misrepresented his or her intentions when they go before CIS to adjust status. Returning to consular process would serve two goals—it would greatly reduce the likelihood of a 6( C ) misrepresentation finding imposed by CIS, and would reinforce the applicant’s credibility before the IV Unit officer who handles the consular adjudication.

With both consular officers and immigration officers more closely scrutinizing all applicants for immigration benefits, it makes sense to follow a strategy that minimizes the risk of denial, even if it requires the client to travel outside the US to consular process. Careful review of all the circumstances a client brings to the process can clarify when that means consular processing rather than adjustment.

Strategies for Waivers of Ineligibility: A Process in Three Stages, Part I

No one wants to break the news to a client that she can’t obtain the visa she requires for a long-planned vacation or business trip because of an action, conduct, or condition that makes her inadmissible.  This is even harder to handle when both the client and the attorney find this out at the same time–either during the consular visa interview, or at the port of entry.  It’s not always possible to know what information the Department of State of Department of Homeland Security (DHS) have or whether it has been interpreted as rendering an individual ineligible for a visa or admission.  Without this information, it is impossible to know whether waiver relief is available at all and determining whether it is likely to be granted — now, later, or never.  But there are three points in the visa application process where careful counsel can either anticipate or solve the problem:  1) before the application, in the client intake process, 2) in preparing a client for the visa interview, and 3) after an adverse decision by a consular section.

Before the application:  the client intake form and initial consulting interview provide the first opportunities to identify possible grounds of inadmissibility.  Too many intake forms replicate a laundry list of questions taken from the DS 160–that is, they ask directly in yes/no format if the client engaged in specific behavior or used fraud to get a visa or immigration benefit.  As consular officers have long known,  you can’t rely on an applicant’s answers to similar questions on the DS 160 and DS 260 forms–the real story frequently doesn’t come out until the interview itself.  A smarter use of the intake form would be use it to ask the client for background–for details about what they may have done in the past in connection with a visa application.  Here are some examples of how to move beyond yes/no answers:

–“Did you ever stay in the U.S. longer than you were authorized, or for longer than you told the consul who interviewed you?  Please explain.”

–“Did anyone ever ask your help in connection with their own visa application or difficulties entering the U.S.?  If so, what did you do for them (if anything)?”   (aimed at possible 6E inadmissibility);

–“Did you ever fail to explain completely why you wanted to travel to the U.S. or what you wanted to do there when applying for a visa?”

— Instead of asking if the client had ever committed a crime, ask her to “Describe any instances since you turned 16 during which you were arrested/detained by police, charged with a criminal offense, no matter how minor, cautioned or convicted even if the only penalty was a fine and the offense was later removed from the record.”  Such a question can elicit the kind of detail that helps determine whether the conduct at issue rises to the level where inadmissibility is a likely outcome.  The question also minimizes the possibility that the client would fail to advise you about it.

An intake questionnaire that provides comprehensive and detailed client information, and a well-prepared consult that establishes visa eligibility, confirms the presence of any inadmissibility grounds, and educates the client about her options, are essential to determine whether waiver relief is available and likely to be granted.  The initial consult provides an opportunity for the client to tell her story and provide more context for the information in the questionnaire, and for the attorney to gain the client’s confidence and confirm or refute what the questionnaire’s answers point to.  Usually by the time she sits down with her attorney,  the client may already know or suspect that she is in some kind of trouble, but she probably doesn’t know why or what to do about it.  This is the time to explain what inadmissibility means, how it is determined, and what consequences it has for the client’s ability to travel to the U.S. in future.   A well-prepared consult also helps avoid the pitfalls of over-selling the waiver process to clients who will require one.  There is a lot of chatter about waivers on the internet–much of it of dubious reliability–and much confusion about how they operate.  Use the consult to dispel misinformation.

The consult should make clear at the start that waiver relief is discretionary, not mandatory, and is granted by DHS, not the Department of State.  Clients frequently misunderstand the consul’s role in the waiver process–which is to determine whether to recommend that DHS grant waiver relief, not rule on the merits of the request.  This is an important role, but of equal importance is the consul’s responsibility to determine whether the client is “otherwise eligible” for the visa being requested.  In other words, the consul is tasked with determining whether an applicant would qualify for a visa if a waiver were granted, before deciding whether or not to recommend a waiver.  The waiver request does not even make its way to DHS unless the consul determines that a waiver would permit issuance of the visa.

Because of this, a key objective of the consult is to determine whether the client would qualify for visa issuance in the first place.  Someone with weak ties to a residence outside the U.S. or who has not meet the base-line requirements for issuance of the visa for which they are applying is at much greater risk of being sent away with a 214(b) denial than she is of failing to gain the consul’s favorable waiver recommendation.  If the consult points to that outcome,  focusing too much attention on the waiver process will only serve to disappoint the client and call the attorney’s judgment into question.









Net Trump Effect on Visas: Confusion and Delay

The back and forth between the Trump Administration and the legal system has attracted a lot of attention over the past several months. As of this writing, the court challenges have resulted in only a limited ban on visitors from six Muslim majority countries, and this will be taken up again in the Supreme Court and others this fall.

But is that all there is to it? Behind the public fray, several other steps taken by the Administration developments have impacted Consular operations around the world. And these are not likely to be challenged or reversed anytime soon.

While the future of the travel ban, proposals to amend the Immigration and Nationality Act and the President’s decision to end the Deferred Action for Childhood Arrivals (DACA) program face uncertain prospects in the courts and Congress, the Trump Administration has used its executive power quietly and effectively to make it more difficult for travelers from around the world to enter the United States.

State Dept Instructions to Embassies: Confusing and Inconsistent

The on-again, off-again status of the executive orders signed by the President in January and March has made it extremely difficult for consular officers to know how to process visa applications from citizens of the six countries identified in the orders, even as their constitutionality remains unclear.   Guidance from the Department for consular officers on how to implement these orders has been issued, retracted, reissued, and redefined in reaction to court rulings.   As a direct consequence, risk-averse consuls cannot rely on clear and consistent guidance on how to handle these cases, and may hesitate to approve visas for individuals who might otherwise qualify but who might be impacted by the Supreme Court’s eventual ruling on the executive orders. Similarly, the administration’s focus on enhanced border security will inevitably cause more visa cases to result in administrative processing delays everywhere, and not just those from the countries of concern.

State Department Hiring Freeze Impacts the Visa Function

Meanwhile, the Administration’s hiring freeze is likely to have a disproportionate impact on consular visa functions abroad. This is because most American consular staff are relatively new hires who often begin their careers with an assignment to a consular section overseas. If there are no or too few officers to fill openings, the wait for consular services will lengthen. We are already seeing evidence of this as wait times for interview dates, particularly in busy embassies, have lengthened over the summer.  And staff shortages impact all visa applicants, not just those from the countries of concern. There is no court of appeal for this problem, and the longer it persists, the longer it will take to correct when hiring eventually resumes.

Protecting American jobs” as a new rationale for employment based visa denials?

Recent changes to portions of the 9 FAM guidelines for consular officers following the President’s Executive Order 13788, “Buy American Hire American,” explicitly charges them with taking into consideration the impact on U.S. job holders when adjudicating applications for employment-based nonimmigrant visas in the E, L, O and P visa categories. It is not possible to come up with a one-size fits all matrix for consuls to utilize in applying this guidance to individual visa applications, but one thing is clear—the new guidelines empower consular officers to deny visas to an applicant if they believe that issuing the visa to him or her will harm U.S. workers in any way. Consuls who may be skeptical about the merits of a visa application in one of these categories, or who simply do not like or approve of a particular applicant and/or the type of visa for which s/he is applying, have been given authority to refuse applicants in these categories, regardless whether the applicant has been approved by the Citizen and Immigration Service (CIS), which adjudicates such visas.   Denial rates in these categories may increase as a result.



Section 214(b) Visa Denials — Beyond Immigrant Intent

When someone is denied a visa under section 214(b) of the Immigration Nationality Act, almost everyone involved in the decision–the visa applicant, the adjudicating vice consul, and the applicant’s immigration attorney–reflexively concludes that it’s because the applicant failed to demonstrate a lack of immigrant intent.  The reason for this is pretty straightforward–the language of section 214(b) expressly references it:

“(b): Presumption of status…Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15) and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant (emphasis added) until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officer, at the time of application for admission, that he is entitled to a nonimmigrant status under section section 101(a)(15). “

Generations of entry-level consular officers have been instructed by consular trainers at the Foreign Service Institute that section 214(b) places the burden on the visa applicant of demonstrating to their satisfaction that they lack immigrant intent–and that if they are not convinced that the applicant they are interviewing intends to return to their overseas residence, they must deny him or her as an intending immigrant.  This training is reinforced by their colleagues on the visa line, and quickly becomes part of the rote rationale for visa denials provided to applicants both orally and in writing:

“You did not demonstrate that you have the ties that will compel you to return to your home country after your travel to the United States”  (taken from the form letter given to visa applicants denied a visa under section 214(b) utilized by the U.S. Consulate in Mumbai)”;

” I am not persuaded that you will return to your residence abroad if you are issued a visa;” (one of the most common oral explanations given by consular officers to applicants whose visa applications they have denied under section 214(b)).

Because the vast majority of nonimmigrant visa denials are based on section 214(b), and the majority of those denials are because the applicant had weak ties to a residence abroad,  is it any wonder that “intending immigrant” is the default rationale used by consuls at the end of the visa interview?  And most of the time, this is the meaning.

But there is another aspect of a 214(b) denial that seems to be happening more frequently, to applicants who have well documented and solid ties to a home outside the United States–immediate family members, property, remunerative employment or thriving businesses, and even prior travel to the U.S.  Despite these ties, they are leaving their visa interviews with  214(b) denial letters.   How can these individuals be denied for having weak ties or immigrant intent?  Are consular officers erroneously imposing 214(b) on applicants who are not intending immigrants?

On closer examination of section 214(b),  following the presumption of immigrant intent, the statute does not then say that the applicant must rebut it by demonstrating lack of immigrant intent in order to qualify for visa issuance.  Instead, it says that the applicant must demonstrate to the consul’s satisfaction that he or she “is entitled to a nonimmigrant status under 101 (a)(15).”  You could argue that showing entitlement to nonimmigrant status is the same thing as demonstrating lack of immigrant intent, but in practice these two aspects of 214b can be and are, increasingly, applied differently to achieve the same outcome–visa denial.

For example, an applicant who is an international businessman with undeniably strong ties abroad who clearly does not intend to remain in the United States can still be denied visa issuance under 214(b) if the consul concludes that he or she is not entitled to receive a visa under the law because his intended activities are not permitted under U.S. law.   A student visa applicant whose parents are multi-millionaires and who has no other ties in the United States can get a 214(b) denial if the consul concludes that the applicant does not actually intend to enroll full-time in a degree-granting college or university.   And a consul can deny a treaty investor visa applicant under 214(b) if he or she fails to demonstrate that they have satisfied the core requirements for visa issuance.  None of these applicants has objective immigrant intent, but each of them can be denied under section 214(b).

Consuls have also become more nuanced in their use of section 214(b) denials in recent years, and appear more willing to impose it on applicants who might otherwise be considered low immigrant risks when there is doubt about their intentions in seeking the visa.  This trend may also shed light on reports of increased use of section 214(b)  to deny applicants who might have a statutory grounds of inadmissibility, which precludes them from requesting waiver relief because they fail to pass the “otherwise eligible for visa issuance” threshold.   While firm evidence that section 214(b) is actually being used in this manner is elusive,  a growing awareness on the part of consuls that their 214(b) denials do not have to be directly linked to a finding of immigrant intent is undeniably at play in many of those adjudications.

Section 214(b) remains the most powerful tool consular officers have in adjudicating visas because denials under this provision are squarely within consular discretion as a finding of fact, and can only very rarely be challenged as erroneous under the law.   Consular processing practices that are representing clients with 214(b) denials without having a complete understanding of how it operates or how consular officers are now applying it,  are not serving the best interests of their clients.











HR 158–Is the Visa Waiver Program on Borrowed Time?

The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which was passed into law and signed by President Obama on December 19, 2015  set off all kinds of alarm bells among residents of and frequent travelers to the Middle East.    The law created two new categories of individuals who are not eligible for visa-free entry to the US:  persons who have traveled to Syria, Iraq, Iran, and Sudan at any time on or after March 11, 2011, and any individuals who are dual nationals of one of those countries and one of the 38 countries eligible to participate in the Visa Waiver Program (VWP) .  It is too soon to know how many people who previously could utilize the VWP for visa-free entry to the US for business and tourism will now be compelled first to apply for and receive a nonimmigrant visa for future business and pleasure travel.  But despite the predictable uproar over the new law,  it could have been much worse–the entire program could have been cancelled, leading to travel disruption, chaos at understaffed consular sections in US embassies, and significant economic and commercial harm to businesses and individuals.

The Visa Waiver Program has been controversial among some in Congress and law enforcement for many years.  Originally adopted as a pilot program in the late 1980s to remove the visa requirements for entry to the US for tourist and business travelers from certain countries, its annual renewal was frequently subjected to Congressional delays and wrangling over whether certain countries should or should not be eligible to take part.  Although Congress eventually made the program permanent,  program participants could find themselves suddenly disqualified to participate, as famously happened to Argentina in 2002 and Uruguay in 2003,  if too many nationals from their country were found to be abusing the program.  To make matters worse,  events since 9/11 caused growing fears that visa-free entry to the U.S. made it too easy for potential terrorists to evade security vetting as part of the visa process.  These concerns led to the adoption of the online ESTA pre-clearance procedure that VWP travelers now must utilize before being granted permission to enter the US without visas.  However, ESTA didn’t go far enough for some critics of the VWP, and the rapid rise of ISIL and confirmed reports that citizens of many VWP program countries were actively engaged in supporting the activities of the Islamic State in Syria and Iraq put the entire program at real risk of being eliminated.

Congress stepped back from this precipice when it passed H.R. 158.  Under its provisions the VWP continues in operation for most persons previously eligible for visa-free entry to the US, but not all.  Persons who fit into the categories noted above will now have to apply for visas and receive full security screening as part of that process before they can be admitted to the US.  The disruption to travel and business activity this will cause may be considerable.  Families from VWP countries may have their travel plans upended because one member of the group may have dual nationality with Syria, or may have vacationed in Iran;  business travelers may miss conferences because of the need to work a visa appointment into a tight schedule.  Already criticism of the law’s impact is circulating widely in social and print media.  It has been rightly pointed out that restrictions on freedom of travel can cause harm to individuals and societies alike.

These objections are legitimate, but futile.  The law’s enactment may have been the only way to protect the VWP itself from elimination, and had that occurred, the consequences would have been much worse for everyone.   Citizens of our closest allies would be compelled to wait for weeks and stand in long lines in order to get interviewed for visas, at embassies no longer staffed to accommodate a huge increase in visa requirements.  U.S. consular sections would have been overwhelmed.  The economic and political fallout would have been dramatic and damaging.

Critics of HR 158 should keep this in mind and focus on ensuring that the new restrictions are widely understood and minimally disruptive rather than attacking the mind-set of the law’s proponents.  This may not be as difficult as some think.  For travel agents,  immigration attorneys and HR personnel in multinational corporations, relatively simple and straightforward changes to existing questionnaires and intake forms can help identify individuals from VWP program countries who will now need visas far enough in advance to minimize last minute travel disruptions.  Frequent travelers who fall into the new categories can apply for and receive multiple entry visas  that will not only allow them entry to the U.S. but even to request longer periods of stay than VWP travelers, who are limited to stays of 90 days on each entry.

Disruptions caused by the new law will be worst in the next several months as procedures are sorted out and everyone gets used to the changes.  Only after that can we assess the net effects of HR 158 on commerce and travel.









Getting it Right– the DS 160 Nonimmigrant Visa Application

People have argued back and forth about the online DS 160 nonimmigrant visa form ever since it was first introduced by the Department of State beginning in 2009, but it has actually been a quiet success, and has made it easier for applicants to apply–and for consuls to adjudicate visas.

Predictions of massive problems arising from the abandonment of the paper DS 156 visa application were overblown, but adopting the the DS 160 was not as seamless as one might expect.  Uploading the photo proved to be an initial problem– consular sections had to give applicants who weren’t able to accomplish it the opportunity to do so at the time of their interview.  Confusion reigned about whether or not someone else–an attorney or more computer-savvy friend or relation–could submit the form for the applicant (they cannot).  Software glitches caused people who were taking longer than anticipated to fill out the form to be locked out or lose their data entirely.  And the detailed information required of E visa  applicants–which in the old days of the paper DS 156 visa application required an additional form, the DS 156E–continues to defeat efforts to incorporate this information into the DS 160 or an online replacement for the DS 156E, requiring most E applicants to  still submit the paper 156E when they apply for their visas.

But despite these growing pains,  the DS 160 online application process actually works pretty well for most applicants and has been a distinct improvement over the old DS 156 form in many ways.  Visa data retrieval and storage by consular officers is now much easier–gone are the days of rows of file cabinets  full of visa applications that have to be periodically retired to long term storage.  It’s also much easier to review the electronic data  the DS 160 contains than  handwritten or typed DS 156 records.

And the DS 160 doesn’t just make life easier for  overworked consular officers–it has some surprising benefits for visa applicants.  In the old days, applicants who made errors on their paper visa applications  had to correct them at the interview window.  Now, after they submit their online  DS 160 applications,  applicants who have made mistakes or typos, or have changes in their personal circumstances–new passports, changes of address– can, as long as they catch these before their scheduled visa interviews,  submit a corrected DS 160.  When they do,  the corrected one, not the initial submission, will be utilized by the consular officer. Applicants aren’t penalized for doing this–even if the corrected version contains negative details, such as a prior visa refusal, that were not mentioned in the first one.  The fact that follow-on DS 160s can be sent can greatly reduce the risk that an applicant will make a material misrepresentation on his or her visa application–and give them one last chance to pull back from a misrepresentation already made.

Of course, this advantage is only useful if applicants and counsel work together closely in preparing the DS 160, and this is one area where the adoption of the DS 160 has made things more complicated than they were before.  As with the old paper form, pre-interview review by counsel is essential to protect one’s clients from submitting incomplete or inaccurate information to the adjudicating consular officer.  But that was easier to do when the applicant’s forms could be typed up by counsel and hand carried by applicants to their visa interviews.  Now,  unless the applicant is actually filling out his or her DS 160 at a terminal in the attorney’s office, it can sometimes be a challenge for counsel to ensure that the form is complete and properly filled out  before its submission.   There are work-arounds that make this easier to accomplish.  For example, the online system allows applicants to share their pending  DS 160 application with counsel if they provide them with the unique application ID and answer to the security question they set up when they began filling in the form.  Another way to facilitate pre-transmission review is to have the client send screen shots to counsel to review–although this can sometimes result in a difficult to read view of the application pages.  In both instances, counsel will be able to protect their clients from  the adverse consequences of providing inaccurate or untruthful information to a consular official.

One of the principle concerns about phasing out paper visa forms–that it would penalize individuals who have limited computer access–has failed to materialize.  Even visa applicants in developing nations where personal computers are not in widespread use have quickly managed to find ways to submit their online visa applications.   The DS 160 is not a perfect tool–some of the drop down menus are unclear, and there is insufficient allowance made for clarifying comments.  It is, however, more of an improvement than its critics may acknowledge, and it’s getting better with use.









On Second Thought, Did Kerry v. Din Crack the Non-Review Door?

“Consular Non-Reviewability,” the notion that visa decisions made by consular officials at US embassies abroad are not subject to review or challenge outside the consular section, has long been a fixture of US immigration practice.  Last challenged in the 70s,  much has changed in the technology and security environment for consuls since then.  So it was with high hopes that some of us looked on this year’s non-review challenge in the case of Kerry v. Din.  At first glance, it seemed the Supreme Court upheld the principle that a consul’s judgment cannot be challenged — even if an American citizen is adversely affected by his decision.

On closer examination, however, the close 5-4 decision, together with the fact that the 5 justices upholding non-review split on why they did so,  and the strength of the dissenting opinions, lent considerable credence to some of the arguments advanced in support of Ms. Din’s challenge.  In short, I see a crack in the non-reviewability  door which a one-vote shift or a different case could open further.

Let me explain:

It’s widely known and grudgingly accepted by visa applicants and their counsel that visa decisions by consular officers aren’t subject to appeal unless the consular officer can be found to have  committed an error of law.  A good illustration of this “doctrine of consular non-reviewability”  can be found in the 1972 Supreme Court case Kleindienst v. Mandel.  In that case, the court rejected  6-3  a claim by U.S. citizens that the denial of a visa to Mr. Mandel, a revolutionary Belgian Marxist,  violated their first amendment right to hear him speak.  According to the majority in Kleindienst,  when U.S. officials  exercise the authority granted them by Congress to adjudicate visas,  they only have to provide a “facially limited and bona fide” reason for their decisions, and  when they base their decisions on the Immigration and Nationality Act, their judgments are not subject to review or challenge.

Returning to the consular non-review issue again in the Kerry v. Din* decision, the Court ruled 5-4 for the government, upholding once again consular authority to make binding visa decisions.  However, the majority was divided on why it sided with the government.  Three justices contended that Ms. Din had no fundamental constitutional rights that had been violated by the consul’s decision, rejecting her assertion of a right as a U.S. citizen to reside with her husband in the US that could only be taken away by due process.  By contrast, Justice Kennedy and Justice Alito, rather than concur in challenging her assertion of a fundamental constitutional right argued that her fundamental right to due process had not been violated because she had been given  proper notice of the statutory basis for her husband’s visa denial.

In the dissenting opinion Justice Breyer made a strong argument that Ms. Din’s rights to live with her husband in the U.S. were adversely impacted by the consul’s decision, and that she was denied due process to challenge that decision.  In other words, in contrast to the 1970s, only 3 of the 9 justices concluded that that a US citizen has no rights that can be violated in a consular visa decision.

Along with several other former consular officers, I contributed to an amicus brief in support of Ms. Din’s case,  pointing out that the actual role the consular officer plays in most security-related visa denials is limited to endorsing the findings of other agencies and involves little or no exercise of independent authority.   We argued that what the government describes as a consular visa decision protected from review by  consular non-reviewability is actually a consular fig leaf over the exercise of authority by other elements of the US Government whose actions — and possible errors of fact or judgment — are not held to account or subject to review.   This helped strengthen Din’s due process arguments by undercutting the government’s argument that the consul’s authority in visa decisions should be exempt from review.

Many close observers of this case were surprised by the narrow grounds on which the court upheld the government’s position in this case, as well as by the explicit endorsement by the dissent that US citizens have a constitutional right to due process in immigration matters.  It seems a surprisingly shorter step than anticipated between where the court came out on Kerry v. Din and modification to the principle of Consular Non-Reviewability.

*Ms. Din,  a U.S. citizen spouse of an Afghan citizen denied an immigrant visa under a terrorism-related provision of the law, challenged the decision by a consular officer to deny her husband’s visa, arguing that the Government’s failure to provide her the basis of the charges against her husband made it impossible to challenge and violated her constitutional right to due process.





The Great Wall

Consular officers and consular sections used to be much more accessible to the public than they are today.  During my first posting in Beirut in 1980  we were separated from the visa applicants by normal glass, like a ticket vendor, and could freely enter and leave the waiting area.  Immigrant visa applicants could routinely be brought into the vice consul’s office to be sworn and interviewed;  attorneys could–and did–come to the waiting room with their clients, which made for some interesting interactions if the client failed to qualify for visa issuance.  The public could ring up the section and ask for a consular officer–and be connected to one, while state-side attorneys could do the same if their clients authorized the cost of a long-distance call.

Things are quite different these days.   Consular officers work behind bullet proof glass, and  newly designed consular sections have no doors connecting the waiting rooms to the work space, so consular officers can’t even walk into the waiting room to greet people like they used to do.  Attorneys in the waiting room, while not officially persona non grata, are barred from accompanying their clients to visa interviews by more and more consular managers.  And reaching a consular officer or anyone in the section, for that matter, by phone is just about impossible.  The last thirty five years have witnessed the gradual, inexorable construction of a “Great Wall” that isolates consular personnel and ensures that for the most part their work is performed via minimal interaction with the outside world.

There are reasons for the Great Wall.  Genuine security concerns and tragic attacks in Beirut, Nairobi, Islamabad, and other posts revealed how vulnerable consular sections, the one part of an embassy compound accessible to the public, can be, leading to redesigns that made it harder to exploit this vulnerability.  But these fixes also made it harder for consular personnel to engage with the visa applicants other than through security glass.   Rapidly increasing visa workloads made it impossible for consuls to take phone calls throughout the day and still get the visas adjudicated.  Efforts to manage this new reality led consular managers first to limit the hours during which people could call in, then to route all calls to dedicated units designed to take phone inquiries, and eventually to the creation of contract, off site call centers where consular officers and staff aren’t even involved in the  calls.  Most consular sections these days are islands of quiet–the phone rarely rings, and work proceeds uninterrupted by the outside world.

This is not necessarily a bad thing.  Fewer interruptions may contribute to efficiency.  But the gains in consular efficiency have been achieved at a cost.  Call centers can’t answer every question;  dedicated e mail addresses (which are quickly disappearing by the way, because it is argued that maintaining them eats up too much consular time) are only as helpful as the responder wants them to be, and not every consular manager prioritizes being responsive to the public.  By improving the efficiency and safety of consular sections, the builders of the Great Wall also greatly reduced the open access and accountability rightly expected of government officials in an open society.  And while Consuls may save some time by not interacting with the public on routine matters, they pass up the opportunity to advise applicants and/or their counsel on more complex situations which can consequently become even more convoluted due to miscommunication solely on paper.

What can be done to make it easier to reach consular officers in real time?  Well, for one thing, the State Department could rethink the movement away from dedicated section e mail addresses and towards worldwide call center support, at least when it comes to certain kinds of inquiries and time-sensitive matters.  It would also be helpful to move away from straw man arguments about the impact on consular efficiency caused by having to maintain in-house channels of communication for the public or attorneys.  Why not give each consular officer a separate public access e mail that he or she can monitor and answer–or not–as they see fit and let them decide how best to balance their work requirements with the need to be accessible?  And how disruptive would it really be if there were a way to request–and receive–real time phone access to a consul when circumstances merit?

It doesn’t diminish the benefits of the Great Wall one bit to acknowledge that it also has a detrimental effect on communication and efficiency.  Maybe it’s time to make communication as much of a State Department priority as operational efficiency.