Angelo Paparelli on Dysfunctional Government
, 01-07-2014 at 03:44 PM (8019 Views)
Ellis Island, which opened as an immigration processing post on January 1st 122 years ago, symbolizes for many Americans of immigrant descent the place where would-be entrants to the U.S. learned whether they would be admitted to the country. Perhaps the most famous and wrenching location within this hallowed landmark are the "stairs of separation," a staircase divided into three sections, with the middle reserved for those barred from immediate entry.
As Grazyna Drabik and Paul Riker, two teachers at the City University of New York, describe the process, it could be harrowing even for those not allowed admission:
The immigration officers asked the immigrants the same questions that they were asked upon departure. The initial responses were recorded on the ship’s manifest, and the officers would use this to verify the immigrants’ responses. Immigrants were asked up to 29 questions including how much money they had on them, if they were polygamists, and if they had a job already lined up. If they passed this aspect of the screening, they were free to go. The entire process would take between three to five hours per immigrant.
Ellis Island no longer processes prospective American Dreamers but serves instead as a memorial of our immigrant heritage. While immigration screenings still occur at land borders, U.S. ports of entry and pre-flight inspection posts, the more difficult and consequential grilling happens at American embassies and consulates abroad, where virtually all applicants for visas, save for children and the very old, must be interviewed by U.S. consular officers.
Members of the public and lawyers for visa applicants, however, are usually barred from attending consular interviews. Little official information is publicly available about the purpose and nature of the interview and the burden of persuasion imposed on the visa applicant. Other information is only accessible on a limited basis, e.g., by members of the American Immigration Lawyers Association, "Notes from Meetings with DOS Mission India," AILA InfoNet Doc. No. 13122744 (Posted 12/27/13).
The State Department offers online resources that only generally discuss the immigrant visa interview process and fee payment procedures. State has published almost nothing on nonimmigrant visa interviews, other than to say at 9 FAM 41.102 N2.1 ("Visa Interviews") that consular officers "must make every effort to conduct visa interviews in a fair manner" and that each officer must use his or her "best interviewing techniques to elicit pertinent information in order to assess the [applicant's] qualifications for the visa and identify any potential security concerns."
This blog post will shed light on the arcane visa interview process and suggest ways for applicants to improve the chance that the desired visa will be granted. Some applicants have been known to pray to a supposed deity known as the "Visa God." For everyone else, the following immigration-insider tips may prove helpful.
Purpose, Format and Legal Background
A visa is no more than the privilege to (a) be carried on a mode of public transportation such as a plane or a ship, (b) approach the border or other inspection post, and (c) request that an inspecting immigration officer admit the individual to the United States. The visa interview is designed to elicit information to allow a consular officer to resolve, one way or another, two questions:
- Is the applicant, as a matter of fact, eligible under law, i.e., the Immigration and Nationality Act (INA), to be granted formal admission or entry to the United States?; and
- Assuming that the individual is theoretically eligible to receive a visa under law, are there any disqualifying grounds that would make the person inadmissible to the U.S. and thus ineligible to receive a visa?
Mostly questions asked at visa interviews are factual rather than legal. This is significant because of a doctrine known as consular nonreviewability (or as we lawyers dub it, consular absolutism). That doctrine holds that no court and no Executive Branch official can overrule a decision of a U.S. consular officer to refuse a visa based on a question of fact. In most cases, the consular officer will be the ultimate arbiter of the facts; hence, the visa applicant's answers to questions posed by the consular officer are critically important.
Of equivalent importance are the legal standards that apply to visa interviews:
- The visa applicant bears the burden to establish that s/he is (a) eligible under law to receive the particular visa requested and (b) not legally inadmissible to the United States;
- The visa applicant must overcome all legal presumptions found in the INA, such as the presumption of immigrant intent or the "intending-immigrant" presumption, which stacks the cards against the applicant by making the individual ineligible at first blush for visas available, for example, to business visitors, tourists, trainees, students and other classes of applicants who by law must maintain an unrelinquished permanent residence abroad if they are to be found eligible to receive such a visa; and
- The visa applicant must establish eligibility for a visa not merely by the more-likely-than-not ("preponderance of the evidence") standard that applies to most decisions in civil (non-criminal) matters, but to the higher and more nebulous and subjective standard, "to the satisfaction of the consular officer."
Learn as much as possible before the interview about the underlying eligibility criteria for the particular visa you seek, and any possible negative factors (grounds of inadmissibility) that might apply to you. For example, visitors for business or pleasure must show that (a) their purpose for entering the U.S. is sincere and lawful, (b) they will enter temporarily and return to their foreign residence abroad (which they have not abandoned), and (c) they have sufficient funds available to avoid the temptation of unauthorized employment. Published resources, if carefully vetted, may be helpful for background information on visa categories and requirements, but there is no substitute for the counsel of a competent immigration lawyer in understanding visa eligibility and inadmissibility.
Consular officers expect to glean most of the information during the interview from the words uttered by the visa applicant and the applicant's answers on the online visa application (Form DS-160), and only secondarily from printed materials. Still, visa applicants should bring with them any relevant evidence that may help establish visa eligibility or refute any perceived ground of inadmissibility. The printed evidence should be well organized and tabbed for ready access and proffer during the interview if a fact brought out from a consular officer's question might be more readily confirmed by presenting a single relevant document to show the officer.
Needless to say, however, the applicant should be fully familiar with the answers to all questions on the Form DS-160 and all documents submitted before the interview (if a petition or other documents were filed with U.S. Citizenship and Immigration Services or with the consular post) or while it transpires.
The applicant must always tell the truth but should also be sure that nothing truthfully relayed during the interview conflicts with any answers on the DS-160, or the documentary evidence previously filed or submitted in person. Consular officers often look for inconsistencies; so if a correction or clarification needs to be made, that should be explained proactively by the applicant before the consular officer has the chance to seize upon any discrepancies.
Review the embassy or consular website to make sure about complying with any security restrictions such as bans on the carrying into the consulate of laptops, smartphones, thumb drives, cameras, etc. Get a good night's sleep, and then have a filling meal and arrive well before the scheduled time of the interview. Dress for success -- wear clothes that show respect -- business attire is usually best.
Try and anticipate the questions posed and practice your responses -- not so that they are scripted but that you are ready to phrase answers in a way that, while always truthful, persuasively demonstrates why the consular officer should find you deserving of the visa you desire. Applicants should recognize that expressions of anger, frustration or other strong negative emotions will meet with a visa refusal in virtually all instances.
Visualize that, instead of applying for a visa, you are applying for a bank loan. No banker will lend money to someone who appears distrustful, disorganized, nervous or frightened, or whose hands are shaking or voice is quavering, or who refrains from making eye contact. Neither will a consular officer readily issue a visa to an applicant displaying these mannerisms. Plan to adopt a pleasant expression and to try to convey a confident, modest but worthy attitude, one that is respectful of the consular officer's burden to decide the case fairly and the importance of law compliance.
The Scoop on Consular Officers
The State Department divides Foreign Service Officers (FSOs) into three "cones" or tracks: Political, Economic and Consular. The Consular cone is the least prestigious or desirable, but all FSOs must spend some time (however begrudgingly) as a consular officer conducting visa interviews. The INA is a massively complex law, but no less so than the binding guidance found in the regulations of several federal departments and agencies interpreting it. Added to that is an internal manual, often amended, to guide consular officers on visa adjudications known as the Department of State Foreign Affairs Manual (Volume 9).
Training in immigration law for consular officers is rudimentary at best, usually just a 31-day course at the outset of their careers as FSOs. Conoffs, as they sometimes are called, also receive training in the reading of "micro-expressions," and following one's gut instincts. In this blogger's view, they soon conclude that "no" is a safer answer for ever higher career progression than "yes," and develop a preternatural perception that the State Department stands at a higher level of importance than any other federal agency with a role in the administration, enforcement and interpretation of the INA.
Consular officers do not choose the post where they will serve. They may have arrived only recently in country and have had little time or training to learn about local culture, customs and practices. As a result, they often rely unduly on the foreign nationals employed (often for many years) at the local American consulate, who often become a power (more real than titular) unto themselves. Be very nice to these staffers, for they help or hurt you almost at their whim.
Consular officers are regularly evaluated more by the speed with which they conduct interviews and decide visa applications (typically in two to five minutes each), and less by the quality of their decisions. Interviews are expected to end in the morning or at the latest in the early afternoon. Highly rated conoffs are "rewarded" by being taken off the visa line and assigned more attractive duties.
The Visa Interview
Interviews are rarely conducted in private. Rather, the applicant must stand at a counter in front of bullet- and bomb-proof glass and speak into a microphone while a multitude of other visa applicants sit or stand nearby, within earshot. Listening (discreetly) to the questions of consular officers and the answers given may be helpful -- so long as you are not rattled by the frequency of visa refusals.
The consular officer will be seated on the opposite side of the glass at a computer, taking required actions such as reviewing security clearance reports and case-relevant data, while also articulating questions only some of which may pertain to the visa category. Consular questions may be posed merely out of boredom or curiosity about the applicant's field of endeavor or to develop a beguiling "good cop" appearance.
In any case, visa applicants must speak in a voice that can easily be heard, with clear enunciation (since the consular officer may not understand your accent). Even if the consular officer speaks your language, you should try to respond in English if you are reasonably capable in that tongue.
You should respond to questions posed succinctly but always "stay on message." You must politely but assertively show reasons why you deserve to receive the visa sought. Imagine an empty beaker that must be filled by the time the interview ends with good reasons and positive impressions that support issuance of the visa. If the beaker is empty when the interview concludes or is filled with dross and dirt about you, your application will likely be refused.
The Visa Decision
The consular officer will tell you at the end of the interview if your visa will be issued or refused.
If it is granted, you will learn whether to stay and wait for it, return later or expect to receive it (affixed to your passport) by delivery service.
If it is refused, the consular officer will explain whether it is a "hard" or "soft" refusal. Although the conoff may not use these terms, a hard refusal is one where the officer has decided the facts adversely and found that you are legally ineligible to receive a visa or are found to be inadmissible under the INA. A soft refusal, one issued under INA Section 221(g), is one that suggests a temporary or tentative basis to refuse the visa, a basis that may be overcome. For example, a missing document, such as a birth certificate or job verification letter, may be needed. Or, "administrative processing" for background security screenings must still be conducted. If Section 221(g) applies, the consular officer will likely explain what action items remain.
If the officer indicates, however, that his or her decision to refuse your visa is final, do not cry, raise your voice, show anger or express negative emotions. Instead, politely ask the officer to explain in detail the reasons for the decision and ask if there is any other document, information or evidence that might cause the officer to reconsider. It is probably not helpful to try and persuade the officer at that point to reverse the decision and issue the visa.
Whether or not the officer suggests other evidence, you should express thanks and leave the building promptly. Immediately, then, sit down and write a note or email outlining in great detail every question asked, every answer given, all body language observed and any other information that may be helpful to a third party (e.g., a government official, an immigration lawyer, a journalist) in understanding why your visa was refused. They may be able to help you try again or seek reconsideration.
* * *
Under U.S. law, only a consular officer can issue you a visa. No article and no immigration lawyer can insure that your visa will be issued. Hopefully, however, by following these suggestions, preparing well, and presenting a compelling and deserving case, your chance of receiving that visa will be substantially improved.
[Blogger's Note: Heartfelt thanks go to attorney Loren C. Locke, my colleague at Seyfarth Shaw, and a former U.S. consular officer, who has provided me with fresh and useful insights into the visa-interview process, many of which are reflected in this post.]