Visa Office--AILA Meeting "Questions and Answers"
October 30, 2000
SUBJECT: VO-AILA MEETING ANSWERS AND QUESTIONS
1. AILA SUBMITTED A LIST OF QUESTIONS TO VO IN CONNECTION WITH THE October 30 VO-AILA MEETING. FOR POSTS' INFORMATION, FOLLOWING ARE AILA's questions and VO'S written RESPONSES, along with points developed during the meeting itself.
BEGIN TEXT OF VO SUBMISSION TO AILA:
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VISA OFFICE RESPONSES TO AILA QUESTIONS SUBMITTED IN CONNECTION WITH THE October 30, 2000, VO-AILA MEETING
Immigrant Visa Processing
2. Q. How is the re-engineering project progressing for immigrant visa applications? When should we expect any changes in procedures and what will they be?
A. The Department of State's immigrant visa process re- engineering project has many interlocking operations -- not all of which can be upgraded at the same time. We are presently developing and testing software changes in part to create connectivity to the lockbox and expanding information on the Department's webpage.
Initial changes to the present method of immigration visa processing performed by the Department of State will consist of:
a) collection of the immigrant visa processing fee in the
United States at the time of the submission of the packet three material to NVC,
b) collection of an Affidavit of Support surcharge for those
I-864 forms that undergo the clerical completeness review at the NVC prior to
their being forwarded to overseas posts for processing,
c) collection of information from beneficiaries concerning
their preferred address or their choice of an agent to receive their
communications from NVC, and
d) introduction of an I-864 specific Website designed to help
petitioners understand and complete the Affidavit of Support required.
These changes have been discussed before with AILA, with congressional staff, with our overseas operations, and with INS. At this time, we anticipate completion of this initial phase prior to the end of this calendar year. We will inform AILA and the public of the exact date as soon as all of these initial changes can go forward together.
The next phase will include the inauguration of the Consular Call Center and an expansion of our physical plant at the NVC. The Call Center will greatly increase the capacity of the Visa Office to answer general public inquiries about visa operations. With the appropriate linkage to our corporate database, the Call Center will also provide limited information concerning specific cases. The new space at NVC is designed to bring more of the overseas clerical processing to the United States. It will increase our capacity to provide a clerical completeness review of the I-864 for our overseas immigrant visa processing posts.
3. Discussion: The Affidavit of Support Fee (AOS), originally scheduled to begin on October 1, will begin in early 2001, provided the lockbox operation with First State Bank and the new AOS website are ready.
AILA said the AOS review seems to be a major obstacle that prevents people from scheduling their first interview. We replied that the review of the AOS at NVC means that individuals will not be called in for an interview that must end in a 221(g) refusal. The process also has the advantage of limiting paper storage overseas. We hope to finalize arrangements for this system by late December or early January.
4. Q. Based on the Interim Rule published in 65 Fed. Reg. 54412-54413 (Sept. 8, 2000), we understand that as of September 8, 2000, immigrant visa applicants to designated posts must pay the immigrant visa processing fee to the National Visa Center ("NVC") before an appointment will be scheduled at post. The posts involved are: Bogota, Cd. Juarez, Freetown, Georgetown, Guangzhou, Manila, Montreal, Port au Prince, Santo Domingo, and Tirana.
(a) Is this fee being collected now for all designated
posts?
(b) Is the collection process being phased-in? If so, how is
it being phased in?
(c) Will it still be possible to pay the fee at posts?
(d) Will the fee be paid at posts for I-140 cases not going
through the NVC?
(e) Will this program be expanded to the issuance fee as
well? If so, what is the time frame anticipated for implementation?
A. A final rule is in preparation that will note that we have delayed the implementation of the fee and describe why. It should be noted that the immigrant visa processing fee is not a new fee added on to prior fees, but a collection of the processing fee prior to rendering of the processing activity as required by current US government practices whenever possible. As noted in prior published comments, this fee will first be collected in the US through the NVC processing procedures for certain designated posts to permit the Department to monitor and improve the operation through an appropriate transition period. In those limited cases where NVC processing does not occur prior to the petition arriving at our overseas operations, payment of the immigrant visa-processing fee will be made at the time of the interview for an immigrant visa as in the past. It is not yet possible to provide an opinion as to whether the collection of the issuance fee will change. A study of all consular fees is still underway.
5. Q. We have received word that some posts are canceling underlying H or L nonimmigrant visas after the initial immigrant visa interview, but before the immigrant visa is adjudicated. An example is a case in which the applicant had to reenter the U.S. to acquire documentation for the interview. Could you please advise posts not to cancel these nonimmigrant visas? Since in the adjustment context, H and L non-immigrants may continue their underlying status as long as possible, we believe that the H or L nonimmigrant visa does not have to be canceled until the foreign national applies to enter the U.S. as a permanent resident. Would VO agree with this position?
A. Under 9 FAM 42.73 N1, a consular officer is required to cancel nonimmigrant visas of any category, including H or L, upon issuance of an immigrant visa. In addition, under the authority of INA 221(i) and 22 CFR 41.122(a), a consular officer may revoke a nonimmigrant visa prior to issuance of the immigrant visa, but only if the consular officer finds that the alien is no longer entitled to the particular nonimmigrant classification or is ineligible under INA 212(a).
Given these rules, and in light of the fact that H-lb and L aliens are exempt from INA 214(b), we would agree that it would not be appropriate for a consular officer to cancel an H-lb or L visa prior to issuance of the IV, as long as the alien is still maintaining the nonimmigrant employment on which the H-lb or L visa is based, and provided the alien has not ceased to be eligible for the nonimmigrant visa on some 212(a) or other ground. To VO's knowledge, however, most posts only cancel the IV applicant's NIV upon issuance of the IV, not upon application. If AILA is aware of specific posts where the latter is believed to be the practice, please provide us with the names of the posts and we will follow up with them.
VO cannot agree to the suggestion that the NIV Should only be canceled at the time that the alien actually applies for admission on the IV at the port-of-entry. As noted above, 9 FAM 42.73 N1 requires cancellation of the NIV upon visa issuance, and this is consistent with the revocation rules in 22 CFR 41.122(a) and (h). Moreover, cancellation of the NIV upon issuance of the IV is necessary for practical reasons, to prevent possible erroneous admission in NIV status at the POE (e.g., if a confused or unsophisticated/youthful alien fails to tender the IV packet) and to deter possible fraudulent use of the NIV by alien smugglers who might purchase or steal the NIV. In the unlikely event that an alien who has been interviewed and approved for IV issuance still wishes to travel in H or L status before immigrating, we suggest that the alien request that issuance of the IV be delayed until after the alien returns from his/her H or L trip.
6. Discussion: AILA asked how the new laws on job jumping will be affected by these cancellations and if our response should also apply to E's and O's? We replied that the legal principles apply across the board. Consular officers are required to cancel a non- immigrant visa when they issue an immigrant visa. AILA understands consular officers have to cancel the NIV's, but believed there is an INS memo that states you can have E non-immigrant status and adjust to immigrant status without losing the E status. We answered that people can apply for an E visa and they can have a file on their behalf for an IV. We do not know what the INS memo said.
7. Q. As to the new September, 2000 cable regarding employment based cases being accepted for processing by posts when an I-824 is filed with the INS, is it correct that an adjustment case need not be pending? Also, often we do not file an I-824 to request consular processing. Sometimes, we specify that we want to consular process a case on the I-140. The I-140 does not, however, have a blank to check to request consular processing. Thus, would the cable also encompass cases in which consular processing was requested on the I- 140?
A. The new procedures announced in our September cable were designed to address a limited number of cases backlogged at INS Service Centers, namely I-140's in which the beneficiaries had originally requested adjustment of status in the U.S. but had subsequently filed the I-824 to have the cases processed overseas. These procedures were not intended to be a short cut to normal consular processing. An adjustment case need not be pending in order for the beneficiary to take advantage of this new processing procedure. The guidelines we provided to posts on the new procedure are very specific, and require the beneficiary to provide evidence, in the form of the receipt for the I- 824, that he or she had originally requested the adjustment of status but had later opted for overseas processing.
If the beneficiary requested overseas processing at the time the I-140 was filed, the approving Service Center would send the approved petition to NVC at the same time it issued the I-797 Notice of Approval to the beneficiary. NVC in turn would forward the petition to the overseas post having jurisdiction over the case. This is a relatively quick process--NVC generally turns petitions around in a matter of a few weeks. The Visa Office's policy is to route all newly approved IV petitions through NVC. This would include petitions, referred to in your question, in which the beneficiary requested consular processing on the I-140. The new procedures therefore would not apply to these cases; they were meant to address cases held up in INS processing for many months, not cases going through the usual Immigrant Visa track at NVC.
8. Q. Does the State Department have any policy against dual processing of immigrant cases using both adjustment and consular procedures?
A. While the State Department has not developed a policy regarding dual processing, we respect the INS policy concerning dual processing. INS' memorandum of August 8, 2000 "Prohibition on Concurrent Pursuit of Adjustment of Status and Consular Processing" prohibits dual processing as an inefficient use of INS resources. Dual processing also runs the risk of allocating more than one visa number to the same immigrant. Under these INS guidelines, if a beneficiary with a pending I-485 adjustment request files an I-824 for overseas processing, the INS will treat the I-824 as a request to withdraw the I-485. INS will terminate the I-485 unless the beneficiary withdraws the I-824.
As INS controls this part of the IV process, we defer to INS on this policy and regard it as binding on the Department of State.
9. Q. Does the Department of State consider someone a permanent resident as of the date an I-797 approval notice for adjustment of status is issued in an employment based case or when the I-551 stamp is placed in the applicant's passport?
A. VO is not certain what is meant by this question. The issue faced by most consular officers regarding I- 797 approval notices or the I-551 stamp relates to what constitutes credible evidence of the adjustment, rather then when the alien is considered to have adjusted status. While an "ADIT" stamp reflects the fact that an alien has adjusted status in the U.S., it can be easily counterfeited and therefore may not be a credible basis to determine that the alien has adjusted status in specific instances.
10. Q. Would DOS assist AILA in trying to obtain feedback from certain posts as to INS waiver processing times abRoad?
A. AILA would be better advised to seek those answers directly from INS, since INS offices that process waivers receive them from a number of posts and no one post has a means of estimating the delay simply from its own experience.
11. Q. How many employment based visa numbers were unused in FY2000?
A. There were over 31,000 unused FY-2000 Employment- based numbers.
12. Q. How does VO anticipate that the preference category visa numbers will advance or retrogress in the next few months?
A. The Visa Office has attempted to insure the use of as many numbers as possible under the annual numerical limitations, by making very rapid advances in the visa cut-off dates. As the cut-off dates advanced, many thousands of applicants became eligible to file for adjustment of status at INS offices. During FY-2000 INS offices began to bring significant numbers of these cases to the final stage of processing. The INS backlog is likely to contain large quantities of applicants with priority dates well before the current cut-off dates. Therefore, the Family preference cut- off date movements for the remainder of the fiscal year are likely to be slow. Currently there is no concern for retrogression of any cut-offs.
The recent legislative changes regarding the Employment per-country limitation will greatly improve the cut-off date situation in the China-mainland born and India categories. Significant movements may not be experienced until January.
13. Discussion: Aila asked how many people might be moving up in the numbers? VO said that with the elimination of the limits for numbers for India, China and the Philippines, applicants might move up. VO expects no big changes until January 2001 and no retrogression on numbers for the Philippines. VO asked about Aila's experiences with INS on the employment side, are they backlogged on all cases or just India, China and the Philippines? Aila said INS is backlogged across the board. The gap between filing a case and approving a case is still 90-180 days. INS also appears to be acting on new cases, and letting the older ones sit.
Non-immigrants (except Js)
14. Q. Would VO consider advising posts that they should not consider nonimmigrant VIsas issued to Third Country Nationals ("TCNs") at posts in Canada or Mexico as suspect? For example, some posts are refusing to issue dependent visas to those applicants whose principals received their visas in Canada or Mexico based on this concern. With globalization of business, usage of closer consulates to the U.S. should hopefully not create such a negative connotation.
A. The Department consistently advises consular officers to adjudicate the case at hand and not review the adjudication of another consular officer. Nevertheless, elements related to the status of the principal alien and information in post files pertaining to previous visa applications may have a direct bearing on the entitlement of family members to derivative status.
15. Q. Are there any meetings amongst the parties to NAFTA scheduled in the near future to consider changes to the immigration provisions of NAFTA? If so, are any of these meetings open to the public?
A. The US NAFTA temporary working group (TWEG) meets periodically to discuss all aspects and issues of our obligations under chapter 16 of NAFTA. We are preparing for the annual meeting of the NAFTA working group to be held in Mexico in December. Both the US TWEG's meetings and the trilateral meetings of the TWEG are closed. There is nothing to report at this time.
16. Q. At a recent seminar, the INS Texas Service Center director indicated that when the TSC receives a request from a post to revoke a petition, it is not received in a standard format, and the cases are not reviewed quickly. Would VO consider advising posts not to send a petition back to INS until some standard time frame for review (e.g. 30 days) had passed so the applicant could submit appropriate documentation or contact VO if necessary?
A. While advising posts that they must wait a set period before returning petitions may save time in some cases, it will also serve to delay all petition cases for the set period, and this will adversely prejudice other petition cases. Posts are instructed to maintain copies of all petition related cases which are returned to the INS, and therefore posts may respond to requests for reconsideration of these cases based on additional documentation from the attorney or upon input from other sources, without first obtaining the petition back from the Service Center.
Additionally, after a recent meeting between VO and the INS Service Centers, VO has requested that posts overseas place a simple cover sheet on the revocation requests so that Service Center mail operations can more quickly sort and move to the proper offices these incoming requests. We hope that this will decrease the time that such requests take to consider.
17. Q. Would VO please consider advising posts that issuance of a nonimmigrant work-related visa does not require the cancellation of an underlying B nonimmigrant visa? In Chennai, apparently, the post is canceling B visas when the applicants are approved for H visas.
A. VO will consult with post to discover what this process concerns.
18. Q. Would VO please confirm that it is possible to apply for a B visa to seek employment opportunities in the U.S.?
A. It is clearly impermissible to take up employment while on a B visa. It is also not permissible to enter the U.S. on a B visa with the intent to adjust status, as stated in 9 FAM 41.11 Note 1.3. An alien is not necessarily precluded from obtaining a B visa for the purpose of seeking legal employment opportunities in the U.S., which do not involve adjustment of status, such as seeking out potential H-lb employment opportunities. However, B visa holders are subject to 214(b) and the legal requirement that they have a residence outside the U.S. that they do not intend to abandon. Aliens in H-lb and L status are not subject to 214(b) or the residence abroad requirement, and aliens in some other temporary employment categories are also not subject to the residence abroad reQuirement. Therefore, aliens applying for B status who intend to seek out H-lb and L status, or some other employment-based status, have the burden to show that they remain eligible for B status, in that they do not intend to adjust status while in the U.S., and have a residence outside the U.S. which they do not intend to abandon.
19. Q. Toronto only accepts E visas from those who are resident in its consular district. This practice cuts off the option to apply for an E visa, if you are a TCN non-resident in Canada and does not allow those just physically present in the consular district to apply. In addition, this procedure increases the number of cases going to Mexican posts, because Toronto is apparently the only U.S. Canadian post issuing Es. Is this policy in existence due to staffing concerns?
A. Toronto's reply: The Toronto Consulate General is the only E visa issuing post in Canada. Due to staffing considerations we do not process out-of- district E visa cases. We accept only the following categories of applicants: (1) Canadian citizens; (2) Permanent Residents of Canada, provided that there is a qualifying treaty; and (3) other nationalities where a qualifying treaty exists and who have been residing in Canada under employment authorization for a minimum of six months at the time of application. E visas are very labor intensive, and we do not have the staff to open up to all comers. In addition, it is very difficult to adjudicate E visas that involve a business enterprise in a third country with which we have neither familiarity nor method of determining the truth of the situation. E visa applicants need not apply at a Mexican post in lieu of Toronto: they may also apply in their home country.
20. Discussion: Aila believed the premise of allowing adjustments overseas was to allow people to process anywhere and asked if there was a way to require border posts to accept TCN cases. VO responded that the Department provides resources based on the expected workload of the consular district. For example, the U.S. Consulate General in Toronto was not provided additional resources in order to process TCN cases arising out of the northeastern U.S.
21. Q. In addition, Toronto appears to reject all Indian nonimmigrant cases for work-related visas requiring a degree, if the pertinent degree is issued in India. Would Toronto at least select some credentials evaluation companies that it deems satisfactory to address some of this concern?
A. Toronto's reply: Toronto issued 1555 H-1B visas to Indians and their dependents last year and refused 208. Since Indians who have permanent residence in Canada do not need visas, those issued and refused were visitors, either from the U.S. or abroad. If the applicant's credentials are from a U.S. or Canadian institution, then there is usually not a problem verifying the credentials. However, it is difficult for us to verify credentials from India as a result, we are more cautious with applicants whose degrees were issued by Indian institutions, unless a previous H-1B has been received by that applicant from one of our posts in India. The issue is not one of evaluating credentials, which is what evaluation companies in the U.S. do, but whether or not the credentials are real, i.e. did the applicant really graduate from an Indian university or did they buy the diploma on the street. We can't determine that, nor can the U.S. evaluation company, so we refuse the applicant 221(g) and advise them to apply at one of our Indian posts.
22. Q. Would VO assist AILA in preparing a list of posts, which accept nonimmigrant visa applications by mail to provide to the public for its convenience?
A. VO has requested all visa-processing posts to provide post-specific information to be loaded into an access database. Among the items of information to be provided was "acceptable methods of application at that post: walk-in, appointment, drop-box, travel agency referral, mail, other....). Although data has not yet been received from all posts, VO should be able to provide this information for the posts, which have already responded.
23. Q. A heightened sensitivity exists at posts when an applicant has entered the U.S. as a B1 or B2 visitor and then applies to change status. Of course, we do not support the commission of fraud or the misrepresentation of facts to a consular officer. Barring the 30 to 60 day rule, INS routinely grants these legal changes, but the applicant is often then viewed as a potential fraud risk at a consulate. Applicants tend to believe that the approval by the INS of the change status shows government agreement with the application. We would like to discuss this situation.
A. VO welcomes a discussion.
24. Q. Would VO, from a political and/or consular perspective, support legislation for spouses of E, L, H, O and P non-immigrants to receive employment authorization? Have other countries requested or suggested to the State Department this option from the U.S.?
A. The issue of spousal employment arises occasionally, by various chambers of commerce, even by individual nations, by legislation, and in the NAFTA context. It is inappropriate for a single agency to express its views on the matter, as the issue mandates a coordinated administration view. We are unaware of the administration supporting any spousal employment proposals to date.
25. Q. Some posts have indicated that if a nonimmigrant waiver has been issued to an applicant, a new waiver is necessary for each visa application even if the underlying waiver is still officially valid. What is the correct policy in this case? Isn't the waiver still valid for the next visa to be issued, if the visa applied for is in the same nonimmigrant category and during the validity period of the waiver?
A. In most cases, a 212(d)(3)(A) waiver is only granted for the period of validity of a visa. If a consular officer recommends and the INS approves a 212(d)(3)(A) waiver for a specific period (such as one year), and the applicant applies for a new visa within that period, the waiver is still valid and no new waiver is required. There may be factors relating to the new application, however, which warrant referral to the INS. For example, a one-year multiple waiver which was recommended and approved so that an alien could obtain medical treatment might not be appropriate if the alien subsequently applied for an employment-based visa.
Affidavit of Support
26. The following questions have been addressed in the answers set out above, particularly in questions 1 and 2 under Immigrant visas. Concerning the proposed changes to the I-864 form that have been under consideration at INS since early in 1999, we have no comment and we have not heard of a new timeline for this change by INS.
27. Q. When will the new $50.00 fee described in 65 Fed. Reg. 54148-50 (Sept. 7, 2000) be implemented? What caused the delay? Please advise under what circumstances, a family would pay the $50.00 more than once, when multiple I-864 forms are filed.
A. At present, we plan on the fee being required when the new process begins. Payment of the $50 fee will only concern those cases that are received at NVC from INS after the initial start date. Each family unit will pay once for the petitioner's I-864 and once for each sponsor's I-864, if submitted to NVC. While the law requires duplication of certain information for all members of a family, we consider the information we are providing is to the petitioner or to additional sponsor and there is no need to multiply the cost in these cases. Additionally, if at the time of the interview it is determined that an additional sponsor is required, we will not charge $50 for that additional document since the decision to require the sponsor was part of the adjudication process, for which we have received a processing fee.
28. Discussion: AILA asked if the implementation of the $50 fee would come before the year's end? They also wanted to know if as with the waiver process, we will accept checks from lawyers for the AOS fee? VO responded that we hoped the $50 fee will be implemented by years end. We are not prepared to accept checks from lawyers, but in the future we might include the possibility of credit card payment.
29. Q. When will the Call Center for Affidavit of Support ("AOS") issues be available? How will the process work and what will the related costs be, if any?
A. We do not have an exact time for the opening of the Call Center. The Department is completing a lengthy process of arranging with a specialized company to put together an offer for a bid on providing services. Part of the process that has begun is to define what we need and want in a Call Center that will do more than provide information just about the AOS. Government procurement rules dictate a time schedule that does not always provide for quick action. Current theory concerning the AOS portion of the Call Center would provide for outsourcing the generic questions about the form while retaining the specific case questions within NVC. Over time, some of the case specific information could be migrated to the outsource operation. Unless it proves too expensive to maintain, we plan on providing 1-800 type service for AOS information at the Call Center.
30. Discussion: The most important thing for VO/P/I is the creation of the domestic Call Center. In the interim, VO is working on a system of automated responses to phone messages.
AILA asked about staffing at the call center. VO replied that the call center will be staffed by contractors. VO will participate in training, establish thresholds where the contractor can pass off the call to either the NVC or P/I, and conduct spot checks to ensure quality service. VO envisions that the Call Center will take the bulk of first tier inquiries.
31. Q. Is the AOS website available? If so, what is the address?
A. The Website is not complete at this time. When we have it ready, we will let AILA know.
32. Q. Has the pre-check AOS procedure been expanded beyond Cd. Juarez, Manila, Santo Domingo, Guangzhou, Bogota, Port au Prince, Georgetown, Freetown, Tirana, and Montreal? If so, to what posts has it been expanded or to what posts will it soon be expanded? Also, would you please indicate the time frames for this expansion, if applicable.
A. No, not at this time, though additional posts are under consideration for expansion of this program in 2001. Again, please see the answers given above.
33. Q. What percentage of AOS submissions are initially rejected?
A. According to NVC, Eighty percent fail to pass on the first clerical review. The reasons are:
1. Missing or incomplete W-2 forms: 30 percent
2. Missing or inappropriate proof of current employment or business letter/license: 25 percent
3. I-864 or I-864A filed by wrong person: e.g. household member filled out an I-864 instead of I-864A: 15 percent
4. Missing or incomplete tax information: 10 percent
5. Incomplete (blank line/box) or incorrect information on the form: 10 percent
6. Inaccurate number of accompanying derivatives in Part 3: 3 percent
7. Total income on part 4D does not equal that on supporting evidence: 2 percent
8. Missing I-864A from Household members whose income is used: 2 percent
9. Missing proof of US status for joint sponsors: 1 percent
10.Missing supporting documents for assets: 1 percent
11.Missing or inappropriate notary: 1 percent
34. Discussion: AILA asked if the IRS has gotten slower in their handling of AOS reviews. VO answered that NVC started talking with IRS Buffalo about either letting more IRS offices handle some of the work, or finding some other solution to ensure a quick review. Vo hopes to make the system mechanized, with more of a computer exchange of information. NVC did transmit to posts a number of cases that had not received a quick response from IRS so as not to unduly delay those cases.
35. Q. What is the normal review turnaround for AOS submissions? In our tour of the National Visa Center this year, the AOS section indicated that their goal was 5 working days.
A. The AOS review section at the NVC has the goal of a five-day turnaround once the unit receives the file from the NVC's file room, and is meeting that goal consistently.
36. Q. Do you have any news on when the AOS form revisions may be complete?
A. Please see above.
37. Q. Please advise us of any processing guidance when a lag time has transpired from the time of an immigrant visa application and approval (e.g. waiver adjudication) as to the updating of the AOS. Is a new AOS and fee needed? Should just new financial information be provided? Is there a time limit to when this procedure applies? Our understanding is that no new AOS should be required.
A. In 98 State 112510, the Department of State advised the field that the I-864 does not expire. It must be submitted to either a consular officer or an INS officer within six months of the sponsor's signature. If the form was submitted within six months of the sponsor's signature, but more than 12 months pass before the visa issued, new supporting documents will be required (e.g., the most recent tax return(s), a current employment letter), but not a new AOS. In addition, the sponsor must meet the minimum income requirement in effect on the date of visa issuance, not on the date that the I-864 was signed.
DV Lottery
39. Q. How many applications have been received in the current lottery for 2002? What will be the time frame for notice to winners?
A. As of 10/26/2000, 6.1 million applications were received. We anticipate the final count will be 10-12 million. We are receiving mail at approximately the same rate as last year. We will begin notifying winners in accordance with standard practice.
40. Q. Has the basic process for the applicationsS selection changed since the move to Williamsburg, Kentucky?
A. No. The only real change Is the fact that the applications were mailed to the new address in Kentucky. Everything else regarding the selection process and eligibility criteria remain the same.
National Visa Center ("NVC")
41. Q. Is an e-mail address other than legalnet available for inquiries?
A. No. There is no e-mail address specifically for NVC at this time.
42. Q. What is the current public inquiry phone number and during what hours may one call? Are there any new contact numbers or procedures?
A. The inquiry number remains (603) 334-0700. It is currently open from 8:00 am until 3:45 PM Eastern time, Monday through Friday.
43. Q. How is the process working to verify tax records with the IRS? How long is the IRS taking to process the requests?
A. The NVC has experienced some delays in receiving tax verifications from the IRS, but these delays are diminishing. Most cases sent to IRS are returned to NVC in less than 30 days. We hope to improve this timing and will be talking to IRS soon.
44. Q. How long is the NVC taking to process a case after receipt from the INS? We understand the goal to be 10-15 business days.
A. NVC has no backlog of cases from the INS to be processed. The processing time from when NVC receives the petition from INS to the date when a Packet 3 is sent is 10-15 business days.
45. Q. How long does it take NVC to typically receive a case after approval by the INS?
A. This varies with each of the 4 INS Service Centers, but typically it takes between four and six weeks from the date of the approval stamp to the date the petition arrives at the NVC.
46. Q. Has the 10-20% margin of failure on data share between the INS and NVC systems improved?
A. NVC still receives data share on 80-90 percent of petitions
Revalidation
47. Q. What is the current processing time for revalidations in the Dept. CA/VO/P/D?
A. The current processing time for "E", "H", "L", "O", "P" and mailed in "I" visa applications is 5-6 weeks. If the processing period changes significantly, the information on the web site will be amended to reflect the change. For changes of less than two weeks in either direction we continue to state " allow approximately 5-6 weeks processing time".
48. Discussion: VO reported that the bank lock box system for visa revalidations that began last January seems to be working well. Such cases are processed in 5 weeks because of staffing levels. The bank is able to resolve problems with MRV and reciprocity fees. The bank also provides remote entry data.
49. Q. Is it ever possible for a visa to be revalidated if it was not initially issued for full validity?
A. The requirements for reissuance of an "E","H","I", "L","O", or "P" nonimmigrant visa in the United States under 22CFR 41.111(b)(2) are: that the alien's nationality must be the same as it was when the previous visa was issued; that the previous visa must be of the same classification as the visa which the applicant is now seeking and must not have a remaining validity of more than 60 days; and that if the previous visa has expired, the application for reissuance of a visa must be submitted to the Visa Office within 1 year after the expiration date of the existing visa. Therefore, as long as the application is within 1 year of the expiration date it is possible to apply for revalidation in the U.S. However, if the original limited validity raises questions which make the case not clearly approval, it may be returned to the applicant for further processing overseas. The determination whether or not the case appears clearly approvable for reissuance is made on a case by case basis.
50. Q. Would you please update us on the number of validation cases processed in FY2000?
A. From 1 October 1999 - 30 September 2000, CA/VO/P/D processed 53, 837 applications for reissuance of visas in the United States in the following visa categories: "A", "G", "NATO", "E", "H",, "I", "L, "" and "P" Official visas and "H" category visas comprised the bulk of these cases.
The break down was as follows:
"E" visas 2403
"H" visas 29089
"I" visas 393
"L"visas 5827
"o" visas 234
"P" visas 120
"Nato" visas 681
"A" visas 8969
"G" visas 6076
The average processing time for business visa applications has decreased gradually. We are still working to reduce processing times. We do not provide interim status reports, however, if an individual needs to travel urgently and sends a fax request (202 663 1608) withdrawing his or her application, we will return the case for processing abroad. The most common submission errors generally revolve around incorrect fee payments. We now have bank collection of fees, which allows more flexibility and has somewhat reduced the number of cases returned for incorrect payment of fees.
Advisory Opinions
51. Q. What are the most common areas on which VO receives requests for advisory opinions?
A. Most of the advisory opinion requests received by the Visa Office come from consular officers rather than attorneys. The most common questions relate to 212(a)(6)(C), non-immigrant visa classifications (particularly "E", "H-lb" and "R"), diplomatic visas, visa revocation requests, 212(a)(9)(B), and whether petitions should be returned to the INS in employment based IV or NIV cases.
52. Q. What is the average processing time for advisory opinions?
A. Because advisory opinion requests received from attorneys generally relate to cases being processed overseas, the Visa Office must in most cases receive a report from the processing post before the request can be answered. Communication problems and workload constraints at different posts make it impossible to give a standard time period for processing these requests. Other issues sometimes require consultation or clearance with the INS or other agencies, and this can also result in delays beyond the control of the Visa Office to resolve. Where the Visa Office has all the information necessary to resolve an issue, the advisory opinion request can normally be answered within two weeks.
53. Q. Would you please advise us of any recent opinions of general application or note?
A. When appropriate, the Visa Office releases general guidance cables to AILA. Some of these cables come out of the advisory opinion section. It is not appropriate, however, to release individual advisory opinion cables. These cables are required to be kept confidential pursuant to section 222(f) of the INA. Moreover, it should be kept in mind that the Advisory Opinion Section is not an adjudicatory body like the BIA, writing precedent setting cases. Instead, our function is to provide legal technical assistance to consular officer to allow them to resolve problems in adjudicating specific visa cases. Where opinions result in general guidance to the Post, we try to incorporate them on a timely basis in the Foreign Affairs Manual, which is available to the public and which should be the only source of general guidance on visa classification and ineligibility issues.
54. Q. What are common errors made by attorneys in their advisory opinion submissions?
A. A substantial number of advisory opinion requests relate to factual disputes between the applicant and the adjudicating consular officer. The consular officer has the exclusive legal authority to make factual determinations, and therefore factual disputes should be resolved through direct contact with the consular officers, and are not appropriate for advisory opinion requests. Another problem is that sometimes advisory opinion requests contain excessive documentation. We occasionally receive advisory opinion requests with 30 - 60 pages of documentation. Most of these documents involve factual issues that are not appropriate for advisory opinion review. Moreover, the excessive documentation places a workload burden on the office, and can lead to delays in processing the Advisory Opinion. Issues should be presented as succinctly as possible.
Citizen Services
55. Q. What is the current procedure to reapply for citizenship after the issuance of a Certificate of Loss of Nationality? How long does the review process typically take?
A. In 1990, the Department of State adopted the administrative presumption holding that individuals who either (1) naturalize in a foreign country, (2) take a routine oath of allegiance to a foreign country, or (3) encumber a non-policy type of position with a foreign government do not intend to relinquish their U.S. citizenship. Any individual who lost his/her citizenship and whose Certificate of Loss of Nationality was issued prior to the Department's adoption of this administrative standard of evidence with respect to loss of citizenship, can write to CA/OCS/ACS, Department of State, Washington, D.C. 20520-4811 asking that his/her case be reconsidered in light of this presumption. At that time, the case will be reviewed on its own merits with due regard to all relevant statements made by that individual concerning his/her U.S. citizenship at the time the expatriating act was committed.
Individuals whose cases fall outside the purview of this administrative presumption (i.e., people who formally renounce their citizenship before a consular officer or who assume a policy level position with a foreign country) can have their cases reviewed as well if they can adduce evidence contemporaneous to their commission of their expatriating act that indicates an intention not to relinquish their citizenship.
It is difficult to quantify the time required to complete this process. Factors that determine the length of the review process are the complexity of the case, the extent, if any, to which there is conflicting evidence on an individual's intention with respect to his/her U.S. citizenship, the time required to locate the file, etc.
56. Q. Does Citizen Services have a list of those countries not tolerating dual nationality? Would you provide AILA a copy of the list?
A. The Office of Overseas Citizens Services does not have a list of countries that do not tolerate dual nationality. Nationality is a matter to be determined by the laws of each country. Such laws are constantly changing and, in some instances, are highly conditional, e.g., are dependent upon factors such as whether the individual sought the second nationality or whether it was automatically conferred. We always suggest that persons contact a specific foreign embassy or consulate to ascertain its laws and practices vis-A- vis dual nationality.
Communications
57. Q. Attached is a chart created with Andy Simkin's help. Would you please advise us, if the information is still correct and of any changes?
A. You will find a new chart at the end of this packet.
58. Q. Attached is a personnel list previously provided to us. Would you please advise us of any changes?
A. You will find a new personnel list at the end of this packet.
59. Q. We appreciate Ms. Rosen's work with us on legalnet inquiries. We are still receiving inquiries though from members who say that they have received no response to their legalnet inquiry. Would your legalnet system allow an automated response on receipt of the questions? We would also like to discuss the potential of more posts adding e-mail addresses for immigrant, nonimmigrant, and citizen services issues.
A. Currently, the officer processing legalnet inquiries sends an interim acknowledgment of receipt if the final response will take more than a couple of days. Therefore, if an attorney has not received at least that interim response within a week, he or she should check the address and resend. We are working with our computer people to set up an automated response so that senders will know immediately whether our office has received their inquiry. Our experiment in automation should be operational for legalnet inquiries before the end of November.
One of the pieces of information that has been requested from Posts is the public e-mail address. We are optimistic that gradually all posts will establish and advise us of these email addresses. Whether or not a post establishes separate addresses for different issues, will have to be determined by posts, based on their resources and the volume of inquiries. If the resources are not available to respond, it is of little value to expand the number of avenues for taking in inquiries.
60. Q. Would VO consider working with AILA to establish a standard list of visa processing information to be provided by posts on their website or to VO directly, so that public and attorney inquiries could be addressed more expeditiously. AILA publishes a Visa Processing Guide with many hours of volunteer effort, but if a uniform base line of information could be established, all of us could benefit.
A. Yes. VO has been working with posts to obtain post specific information related to visa processing at that post. This information would then be available for VO to share with attorneys and the public. We believe that the 64 items requested should provide a fairly comprehensive information base, which would enable VO to answer most process related questions. If AILA wishes to provide a list of items it would like to see included in our database or on post web sites, we would be glad to take those suggestions under consideration.
61. Q. Since Andy Simkin's departure, are there any additional State Department cables that AILA should disseminate to its members?
A. The new special assistant, Karin King will continue the practice of disseminating cables. If there were any ALDAC cables of particular importance that were issued between the time Andy Simkin left and she took over, we believe they have been distributed.
62. Q. Would VO please consider adding on introductory "What's New" section to its website so that new developments would be easier to locate?
A. VO is considering whether and how to develop its own distinct site and will consider the proposal and any others that our clients and public suggest. In the past, we have on an as needed basis asked our web mistress to include a "what's new" in order to highlight a change which applicants had not been noticing. We will raise the possibility of doing this as a regular practice
63. Discussion: AILA had concerns about information on post closures. For example, due to the recent crisis in the Middle East, clients did not know how to find the most recent information on post closures. VO responded that we try to update the information on the "Hot Spots and Crises" portion of the web-site every quarter. We will try to make the "Hot Spots and Crises" section easier to find.
64. Q. Have posts submitted any new comments or suggestions for attorneys that we should publish?
A. No, though a constant thread runs through some complaints from the field - failure to get the correct documents to the interviews, seems to be unaffected by legal representation.
65. Q. Would VO consider publishing a video jointly with AILA on consular processing, which could be used for training by AILA as well as for junior officers and foreign service nationals? Perhaps, a border post might be the site for the video.
A. VO is not directly responsible for training and this suggestion should be addressed to the National Foreign Affairs Training Center (NFATC). VO is not equipped or staffed to make training videos and rElies on NFATC, public affairs and posts to provide such materials. If AILA wishes to produce such a video, VO could certainly suggest a point of contact at NFATC.
66. Q. In our minutes from our meeting last March with VO, we were provided a list of post e-mail addresses. Do you know of any additions or revisions to this list?
A. We continue to add and change our list's (some attached), but the best source of the latest information is via the Consular web site and links to the Embassies.
J Waivers - Procedural Questions
67. Q. Please provide us with an update on true processing times for the following:
a. Receipt by St. Louis of a Data Sheet and filing fee,
and the generation and mailing of a letter from CA/VO/L/W with the Waiver
number;
b. "No objection" waivers where there is no US
government funding and no substantive objection from the program sponsor in the
United States from receipt of the "no objection" statement through
proper channels and the transmittal of a decision to the INS;
c. "Interested Government Agency" (IGA) waivers
where there is no US government funding and no substantive objection from the
program sponsor in the United States from receipt of the IGA request to the
transmittal of a decision to the INS;
d. A hardship or persecution waiver where there is no US
government funding and no substantive objection from the program sponsor in the
United States from receipt from the INS of the I-613 finding hardship or
persecution to the transmittal of a decision to the INS.
e. For each waiver basis in b-d above, processing times where there is US
government funding or substantive objection from a program sponsor.
A. VO is not in a position to modify the published processing time frames on this date due to changes in computer programs and staffing. Once the backlog is eliminated and we find the most expeditious means of processing cases, we will amend the processing times to correspond to these changes. Our goal is first to eliminate the backlog. Our objective is to move the cases most expeditiously while maintaining the highest quality in our deliberations in these cases. Certainly, we seek to move cases which require the least amount of deliberation very quickly. We are working with other offices we consult with to seek methods of streamlining the consultation process. Until we have personnel in place and the backlog is eliminated, it is unfair to raise expectations with projected processing time lines until we have a realistic timeframe to provide you.
68. Discussion: Steve Fischel of VO/L thanked the public and AILA members for their patience during the last year's steep learning curve as a result of the integration of USIA and State in the J waiver function. VO has made some changes which should improve the processing time. Until they are in place and we see what "normal" is for processing "J" waivers, VO doesn't want to set a "timeframe" for waiver processing. Fischel mentioned that L/W personnel has increased. On technology, L/W is again using its unique computer program. L/W will receive remote data entry from the bank lockbox, and will reinstall the automated phone system for case status inquiries. L/W is also undergoing a thorough review of the deliberation process, but any changes under consideration have not been formalized into regulations yet.
AILA agreed the transition from USIS to State of the "J" waiver function was a difficult situation. They felt that the approach Steve Fischel took of making himself available and working closely with the "J" waiver team had innumerable benefits in keeping the integrity of the process and thanked him. AILA reported a fall in the last month of inquiries on "J" waiver cases, they hope it is because the process is working better. AILA hopes at the next liaison meeting to talk about substantive issues, not the process. AILA's impression is that St. Louis fee collection center is where eighty percent of the problem cases arise and there are still a couple of wrinkles to iron out.
69. Q. What should be done if a Waiver number is not issued or a recommendation is not transmitted to the INS within the above-stated processing times?
A. Please continue to use the liaison function. While it is hoped that shortly the number of such inquiries will dwindle, it is possible that there will be the odd case that needs special attention.
70. Q. Please inform us of any changes in the public inquiry system or the system for status reports.
A. VO is in the process of fixing the telephone status inquiry system that worked so well at USIA. Legalnet is available for all substantive questions. We are exploring other avenues for status requests, including the Internet.
71. Q. Please inform us of any changes contemplated with regard to scanning and/or data entry at St. Louis or in CA/VO/L.
A. With the return of the USIA program, there is no longer any scanning of documents at VO. The St. Louis process is the same, while we are seeking enhancements that would include the bank entering data from the data sheet. This would expedite processing in L/W and reduce personnel needs.
72. Q. Please inform us of the level of review that a hardship or waiver application receives before a negative recommendation is transmitted to the INS, e. g., does a senior officer with the legal department review adverse decisions?
A. All hardship waiver cases in which the officer recommends denial are first reviewed by the division chief. If she agrees with that assessment, then they are forwarded to the office director who will make the final decision.
J Waivers - Staffing and infrastructure
73. Q. Please inform us of any changes in staffing or staffing levels contemplated in the Waiver Review Division.
A. VO is hiring contract employees to provide necessary assistance in data entry. We, also, have on board a retired FSO who is working full time for a year. We are currently reviewing the structure of the division with the view to finding the best arrangement to most expeditiously process cases.
74. Q. Please inform us of any changes in the computer and telephone systems and the anticipated benefit of those changes.
A. As indicated above, the division is now using their old record maintenance program from USIA. While in use, it still requires extensive modifications by our computer personnel. While we seek enhancements to further expedite processing, these may not be achieved as quickly as we had hoped due to complications within the system. Staff is trying to install and make operational the phone/status system as soon as possible. This, too, is encountering some obstacles.
J Waivers - Substantive Issues
75. Q. Many J-1 exchange visitors are subject to the two-year foreign residence requirement of INA ) 212(e) on more than one ground (e.g., postgraduate mediCal education and Fulbright funding, or skills list and home-country funding). Please confirm DOS adheres to the policy previously set by USIA that, so long as all IAP-66s have been provided to the waiver division, the grant of a waiver covers all possible 2 year home residence obligations.
76. Q. AILA and DOS have opened a dialogue regarding streamlining of certain waiver applications where INS has found either hardship or likelihood of persecution. In view of the strict standards to be met before these cases even reach DOS, shouldn't these waivers be approved expeditiously where there is no government funding, and no objection from the home government or program sponsor? Please advise of any streamlining of adjudication of these applications.
Answers to Substantive Issues Questions
77. USIA charged for each application based on single basis for a waiver. VO continues this policy. VO is not prepared today to make a public policy statement on the handling of these cases. Great thought is being given to the process and the quality of the deliberations being made in assessing program, policy, and foreign policy concerns. Some of these ideas have been shared informally within the liaison function, but they have not yet been passed through senior management. Upon that occasion, VO will be forthcoming with explanation of our views toward this deliberative process.
78. General Discussion: VO pointed out that at this time of the year, consular managers are looking at their needs for the upcoming year. We are not going to be able to give posts the people and resources that they all need. AILA asked about raising more funds through visa fees. VO said that visa fees and MRV fees were never designed to completely cover the costs of visa services. These fees do not Pay for sophisticated communications systems, buildings or living expenses of staff residing overseas. AILA asked if with the addition of the AOS fee, State was contemplating other fees? VO said there is a fee study underway now for all visa fees. It would be premature to speculate on the outcome.
TALBOTT
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