PROPERLY PREPARING CLIENTS FOR A VISA INTERVIEW IS AN ATTORNEY S DUTY; CHALLENGING BAD DECISIONS IS AN ETHICAL OBLIGATION

18 Bender s Immigration Bulletin 276 March 15, 2013 PROPERLY PREPARING CLIENTS FOR A VISA INTERVIEW IS AN ATTORNEY S DUTY; CHALLENGING BAD DECISIONS IS AN ETHICAL OBLIGATION BY BERNARD P. WOLFSDORF & JESSICA L. MARKS Many consider the visa application process complete as soon as the approval notice is delivered to the client. For many visa applicants, there is a final, sometimes terrifying experience: the visa interview. For an immigrant visa applicant, the chance at the American dream may depend on a single brief conversation with a U.S. consular officer. The key to a successful outcome is preparation and effective communication with the consular section, both on the applicant s behalf during the interview and also by his or her counsel and/or employer. Ironically communications between consular officers and attorneys has become increasingly difficult in the electronic era, and many consular officers have used the e-mail as a means to cut off communication with legal counsel. Now more than ever before, communication with posts has been limited, as the answers are allegedly on the website. Attorneys are increasingly frustrated by an inability to gain real-time responses from consular posts to case inquiries. Consular officers often appear reluctant to communicate with an attorney who is perceived as unprepared, or who may be an overzealous advocate. It is therefore critical to strike a balance that both respects the consul s position and protects the applicant s rights. The key is to communicate effectively so consular officers and managers can resolve complicated cases and problem issues. The following is a discussion of tips and strategies for obtaining an approval on the day of an interview or, if that effort is unsuccessful, how to work with the consular post and the Department of State (DOS) to achieve the best possible outcome. THE BEFORE: ISSUES TO IDENTIFY AND ADDRESS IN ADVANCE OF THE VISA INTERVIEW Tips for avoiding or minimizing delays Educate yourself. When working on a complex consular case, nothing is more important than gathering information about the consular post where the application will be submitted. The best place to start for learning about a post s visa operations, and any special application procedures, is the post s website. In recent years, DOS has made significant progress in improving individual consular post websites to provide more uniform and helpful information to the public. Consular post websites may be accessed through DOS s own website: www.usembassy.gov. Other valuable sources of information are AILA publications, DOS/AILA minutes on Infonet and AILA s Consular Posts Handbook as well as the AILA mentor program. Be mindful of PIMS issues. PIMS (Petition Information Management Service) records are created by the Kentucky Consular Center (KCC). The system serves as the primary source of evidence used in determining petition approval for all nonimmigrant petition-based visa categories (H, L, O, P, Q, and R). The PIMS Petition Report contains a record of all petitioners recorded by the KCC as having sponsored approved petitions since 2004. In addition, many of the records contain information from KCC s Fraud Prevention Unit. To avoid possible delays, the DS-160 requires applicants to submit petition information in advance; posts may use these details in an attempt to undertake the PIMS clearance procedure prior to the visa interview, thereby limiting the time applicants have to wait until the visa is approved/issued. For visa applicants who change status, check to see whether a duplicate copy of the petition was submitted, as failure to submit will require the visa applicant to have a full, preferably certified, copy at the interview. Prepare the visa application well in advance, as there may be significant delays at the post, especially during the busy summer and holiday seasons. Make sure the applicants are educated and prepared, and ensure clients read and understand their visa application forms and documents before going to their visa interviews. It is especially important that clients familiarize themselves with the contents of the approved petitions, to ensure they are comfortable discussing their qualifications in employment-based cases, and their qualifying relationships in family-based cases, so nothing is said during an interview that causes the consular officer to question the representations made in a petition. Too often employers and/or their lawyers develop technical job descriptions that

18 Bender s Immigration Bulletin 277 March 15, 2013 the foreign national applicants may not have been apprised of. Make sure applicants know they have only two or three minutes to articulate their cases. Help them prepare to present the essence of their cases, briefly, succinctly, factually and honestly. The single most valuable advice for visa applicants is to be direct and forthright. If the visa applicant has a criminal history, check the post s procedures, as a police certificate, memorandum of conviction/certified court disposition, and a legal brief and copy of the statute under which he or she was convicted may be required. Where applicable, the client needs to be apprised of the importance of being upfront about arrests or convictions (anywhere in the world) or past problems with U.S. immigration or consular officials, and visa applicants must make sure to present relevant court or immigration records, as well as police certificates, at the interview. If specific grounds of inadmissibility (such as a past criminal conviction) are present, the applicant must be briefed on the waiver process and the waiver application must be prepared for submission to the interviewing officer immediately after the denial, or at the time of the waiver appointment, as post procedures require. Check post procedures when dealing with timesensitive cases, particularly for a large group of applicants, such as sports teams, performance groups, delegations, groups of workers, etc. Advance notice may help ensure both the post and the applicants are prepared for the group application, thereby facilitating prompt and efficient processing. In group-visa application cases, assist the applicants to arrange their supporting documentation in an orderly and consistent fashion. This facilitates more efficient review of the cases and helps speed up the interview process. It is often helpful to have a primary file with all essential documentation, and a secondary file, with documentation that may be requested. The basic rule is always over document, have every possible document, including originals, but present only the critical documentation the officer requests. Special Considerations for Security Advisory Opinions (SAOs). [NOTE: DOS no longer uses the term security advisory opinion, or the animal names, and merely refers to all checks as being subject to generic "Administrative Processing."] Delays are often unavoidable, so the key is to be able to predict when they are likely to occur. Attorneys should prepare the case and client in anticipation of certain delays, thereby managing expectations. Below are common clearances and complications visa applicants should be apprised of, and where possible applicants should prepare as far in advance of the interview as possible, particularly so travel and other plans can be made accordingly. Poor planning is not well respected as a basis for expeditious processing. For employment-based cases, notify the petitioning entity about likely delays in visa processing. An employer is never pleased to discover its key performer or foreign national applicant is stranded abroad for weeks or months pending visa issuance. For persons born in, or who have recently travelled to, predominately Muslim countries, anticipate a possible Visas Condor security clearance, especially if the applicant was subject to special registration. While the exact criteria of the Visas Condor are classified and consular officers have discretion to request clearances at any time, they appear to be based on several factors including: 1. Information disclosed on Form DS-160 (such as travel to predominantly Muslim countries in the last ten years, prior employment, military service, or specialized skills or training). 2. Country of birth, citizenship, or residence persons born in the T-4 (Iran, Sudan, Syria & Cuba) State Sponsors of Terrorism and/or List of 26/27 countries will likely be subject to a Condor security check. Most Condor SAOs clear within one or two weeks. Males are more likely to be subjected to clearance requests than females. Don t anticipate a quick resolution for a Visas Donkey SAO. A Donkey clearance is for a direct name hit based on noncriminal issues and is not nationality-specific. These clearances can take much longer, and delays of ten to fourteen weeks or longer are common. Unfortunately, there is no process to pre-screen applicants or to begin the SAO process before the visa interview. There should be, so the person could be apprehended or more thoroughly screened before and during the interview. As to Visas Mantis SAOs, don t expect to still find the Technology Alert List (TAL) on the DOS website. The last unclassified version was published on AILA InfoNet at Doc. No. 03030449 (posted Mar. 4, 2003). Visas Mantis SAOs are normally processed in two to eight weeks. Applicants potentially involved in dual use technologies should anticipate a Mantis SAO and should bring to their interviews detailed and complete résumés, complete publications lists, abstracts of papers or other published materials, and detailed letters from their employers and/or U.S.

18 Bender s Immigration Bulletin 278 March 15, 2013 sponsors explaining the nature of the proposed work or meeting/presentation, or project descriptions (in lay terms). An employer/sponsor should explain whether the work has any possible military application and, if true, that the information is in the public domain or found in academic courses. A technology with dual uses may subject the individual to heightened scrutiny, regardless of the intended use. Certain applications made by Iranian citizens must be absolutely denied, not delayed. In accordance with the recently enacted Iran Threat Reduction and Syria Human Rights Act signed into law in August. 1 Consular officials must now deny a visa to any citizen of Iran who is believed to be seeking entry to the United States. to attend an institution of higher education to prepare for a career in the energy sector in Iran or in nuclear science, nuclear engineering or a related field. Advise clients that mandatory Integrated Automated Fingerprint Identification System (IAFIS) clearances will reveal any National Crime Information Center (NCIC) record associated with an applicant's fingerprints. To help flesh out any fragmentary information in the NCIC database, applicants should be prepared to present certified final court dispositions, arrest records, and legal briefs at the interview. Expect false hits to occur for visa applicants with common names (e.g., John Smith, Carlos Gonzalez, or Maria Ruiz). As many as half of the names entered into the CLASS system are Latino. This has resulted in an alarming number of false hits and delays for persons with common Latino names. Fortunately, the advent of IAFIS and the Automated Biometric Identification System (IDENT) allows the post to process clearances on many false hits on the same day, while clearances for true positive hits are often cleared by the next day. Be prepared for any alcohol (or other drug)- related incidents. DOS-issued guidance in 2007 2 requires consular officers to refer a nonimmigrant 1 Pub. L. No. 112-158, 126 Stat. 1214 (Aug. 10, 2012). 2 DOS Cable, Guidance on Processing Visa Applicants with Drunk Driving Hits, published on AILA InfoNet at Doc. No. 07071670 (posted July 16, 2007), reprinted at 12 Bender s Immigr. Bull. 1169, 1190 (App. F) (Aug. 15, 2002); superseded by 9 FAM 41.108 N1.3 as amended Sept. 25, 2012 to include: (1) A single alcohol-related arrest or conviction within the last five years; (2) Two or more drunk driving arrests or convictions in the last ten years; or (3) any other evidence to suggest an alcohol problem. applicant with prior-drunk-driving issues to a panel physician for medical examination if the applicant has: 1. a single drunk driving arrest or conviction within the last five calendar years, or 2. two or more drunk driving arrests or drunk driving convictions in any time period. It is possible to request a consular officer to expedite an SAO for exigent circumstances. It is advisable to submit an expedite request letter from the petitioner detailing the emergent reasons for the applicant s urgent return to the United States. Physicians in medically underserved areas and other applicants whose travel furthers a U.S. government interest or humanitarian concern are strong candidates for such a request. All requests for expeditious review must be approved by the Chief or Deputy Chief of the Coordination Division in the Visa Office. THE AFTER: HOW TO ADVOCATE IN THE EVENT OF A DENIAL General tips for effectively challenging a denial Debrief the client as soon as possible. Bear in mind that clients may add their own spin to their recollection of the interview Q&A. Encourage the applicant to write down in detail the precise questions and answers provided as soon as possible after the interview. Contact the post in writing before calling to inquire. Explain in a brief but well written e-mail or fax message the nature of the inquiry, and include any relevant documents and case numbers. If necessary, later follow up with a phone call (it may be best to call in the afternoon when visa interviews are normally completed for the day). TIP: Make sure the post has a G-28 or other notice of appearance on file before seeking to discuss a case. When presenting arguments following a denial, it is critical to ensure the facts support the law and reasoning of specific sections of the Foreign Affairs Manual (FAM) or other relevant laws or regulations that favor visa issuance. Be sure to include specific facts, and not mere conjecture, regarding the case to demonstrate that the FAM, case law, government memoranda, or regulations apply. When asking for review/reconsideration, present your case succinctly, addressing all relevant facts and citing legal authority for your arguments. Don t overwhelm the consular officer with large volumes of unnecessary documents. Keep in mind that consular officers deal with dozens or hundreds of visa applications on a daily basis, so make sure that

18 Bender s Immigration Bulletin 279 March 15, 2013 whoever reads your request is able to quickly capture the essence of your argument. Nothing is more valuable than an executive summary. Say it briefly, concisely and succinctly. Don t waffle or be repetitive. Don t settle for a bad decision if you have a good case and you believe an error was made. Reapply or seek review within the consulate. While consular managers will be reluctant to overturn a decision if the denial falls within consular discretion, clearly erroneous denials should be brought to their attention. Consult with an AILA mentor or seek the advice of other attorneys through AILA list servs. Consider an advisory opinion. If the reviewing consular officer and/or the consular manager upholds the denial, and you remain convinced that an error of law has been committed, you may seek an advisory opinion from the Visa Office, via LegalNet. 3 Bear in mind that factual determinations by the consular officer are nonreviewable period! Present new facts and/or new documents. If your client has been refused and you have exhausted all opportunities for review and been unable to overcome the refusal, do not seek repeated further reviews unless you have new arguments to raise or new information to provide. Not every case can be won. Accept that some cases cannot be saved; be ready to fight for your clients, but be mindful to reserve your efforts so you can build up and maintain goodwill with the post for cases that merit it. Some attorneys have built a reputation for taking bad cases, and unfortunately such reputations are hard to change. Be professional. Whatever the outcome, maintain a courteous and professional tone throughout. A confrontational manner or abusive tone is usually counterproductive. It does not serve your client s interests. Remember, it s okay to grovel with grace, and sometimes abject flattery will get your case heard. For re-applications address the denial in a brief and/or bullet-pointed executive summary. Emphasis should be made on any new, material and probative evidence. Delays due to SAOs Sadly, there is little an attorney can do in the event of a delay due to an SAO. The best strategy is to advise the applicant/petitioner in advance and prepare the case to minimize the length of the delay 3 LegalNet can be reached via email at legalnet@state.gov. See DOS VO Inquiry Procedures, published on AILA InfoNet at AILA Doc. No. 08121971 (posted Dec. 19, 2008) for more information on submitting an inquiry to LegalNet. to the extent possible by, for example, arming a client with a common name with additional evidence of his or her true identity to overcome a positive hit in CLASS. If a security check has been pending for over sixty days, attorneys can inquire via e-mail to LegalNet. The subject-line caption should state Overdue SAO. Attorneys may also call the Visa Office Public Inquiries line at (202) 663-1225. 4 Sadly, these inquiries rarely produce results; however, occasionally substantially delayed cases will be followed-up on. When it goes from bad to worse how to handle petition returns Act expeditiously. In the event the consular officer advises your client that the petition will be returned, it is imperative to immediately contact the post and attempt to prevent the return. In the meantime, you may want to begin preparing another petition. Fully disclosing the issues, refiling and having the client re-apply for the visa is likely to be the quickest route to success if the post sends the petition to the National Visa Center. Returned petitions are treated as the lowest priority by service centers, which routinely take six to twelve months to even look at them. 9 FAM 42.43 N2 limits petition returns to when the petitioner requests suspension of action; there is knowledge or reason to believe petition approval was obtained by misrepresentation, fraud, or other unlawful means; or there is knowledge or reason to believe approval was clear error or the applicant is no longer entitled to the status due to changed circumstances. A 2001 DOS cable (known as the Powell memo) 5 confirms that a visa applicant has the right to know the legal basis for denial. Similarly, you should insist on behalf of your client that the legal basis for the petition return be disclosed. If it does not satisfy one of the standards in the FAM, articulate this to the consulate. AILA has received reports 6 indicating that O-1 visa applicants have been subject to petition returns at several consular posts around the world recently, often accompanied by comments that the client is not a Grammy award winner. The basis is often that the consular officer does not believe the 4 AILA-DOS VO Inquiry Procedures containing the VO Inquiry Form published on AILA InfoNet at Doc. No. 08121971 (posted Dec. 19, 2008). 5 2001 State 102813, June 12, 2001. 6 AILA Department of State Liaison Meeting minutes, published on AILA InfoNet at Doc. No. 12102252 (posted Oct. 22, 2012).

18 Bender s Immigration Bulletin 280 March 15, 2013 applicant to be extraordinary enough for O-1 classification. With this trend in mind, this class of applicants requires special preparation. Make sure that your client can clearly articulate, with examples, how he or she has risen to the top of the field or enjoyed extraordinary achievement and the resulting accomplishments satisfying the applicable regulatory criteria. Your client should have the most persuasive evidence (e.g., press articles, award certificates, pay records) from the O-1 petition at the ready. CONCLUSION This guidance is based on the adage that the best defense is a good offense: When a visa application and the applicant are well prepared, many of the most common delays and denials are unlikely to materialize. If they do, effective communication with the consular section will be critical to resolving your complicated case. Make sure your clients are prepared for their interviews. This means understanding the procedures for visa applications, making sure they have all the necessary original documents, and most importantly, preparing them to articulate the basis for visa eligibility clearly and directly. If the decision is wrong, challenge it. Bernard P. Wolfsdorf is a past national President of AILA. Mr. Wolfsdorf was named the most highly rated immigration lawyer in the world by his peers for the past three consecutive years in the International Who s Who of Business Lawyers. He is a recipient of the AILA 2011 Service Excellence Award. Best Lawyers in America rated him Immigration Lawyer of the Year for Los Angeles. Chambers Global World s Leading Lawyers for Business noted Mr. Wolfsdorf s outstanding consular law practice and called him a cutting-edge thinker. He also is top rated in Best Lawyers in America, Martindale Hubbell s Preeminent Specialist Directory, Southern California Super Lawyers, and Chambers USA. He can be reached at Bernard@Wolfsdorf.com. Jessica L. Marks is an attorney in the Wolfsdorf Immigration Law Group. She has degrees from the University of Michigan and George Washington University Law School. Copyright 2012 Bernard P. Wolfsdorf, A Professional Law Corporation/Wolfsdorf Immigration Law Group (all rights reserved). Updated from AILA s The Consular Practice Handbook 145 (2012 Ed.), updated by Liam Schwartz, Avi Friedman, and Anastasia Tonello. Originally published in Hot Topics in the Tropics: Complicated Business Cases Solutions from the Experts (AILA Midyear Conference Handbook 2013). Reprinted with permission. SHOW YOUR STUFF! Send us the decisions in your cases. Let everyone know about your prowess. Any reader interested in sharing information of interest to the immigration bar, including notices of upcoming seminars, newsworthy events, war stories, copies of advisory opinions, or relevant correspondence from the DHS, DOJ, DOL, or DOS should direct this information to Daniel M. Kowalski, dkowalski@thefowlerlawfirm.com., or Ellen Flynn, Senior Legal Editor, Bender s Immigration Bulletin, 121 Chanlon Rd., New Providence, NJ 07974, ellen.m.flynn@lexisnexis.com. If you are interested in writing for the BULLETIN, please contact Dan Kowalski via e-mail at dkowalski@thefowlerlawfirm.com. We welcome your contributions.