What happens when you contravene the worldwide nonimmigrant visa referral policy? It depends.

Posted: 4:08  am EDT
Updated: 2:29 pm EDT

 

Our State Department friends have a favorite response to most questions. “It depends.”

About 10 years ago, State/OIG conducted a review of the Visa Referral Process in Nonimmigrant Visa Adjudication.

By law neither an ambassador nor a DCM can direct a consular officer to issue a particular visa. Even the Secretary of State has no authority to override a consular officer’s deci­ sion, pursuant to the Immigration and Nationality Act, 8 USC 1104. Recognizing the importance of the visa process both as a bilateral diplomatic issue and as a legitimate diplomatic tool for achieving U.S. aims, and considering the importance of providing as much information as possible to consular officers, the Department has long understood the need for a policy and system to allow all elements of the mission to benefit from the visa system and to protect consular officers from inappropriate pressure. After September 11, 2001, this system has been signifi­ cantly strengthened.
[…]
Based on the results of the survey, observations in the field, and discussions in Washington, OIG concluded that most ambassadors and DCMs appear to under­ stand the importance of their personal oversight of the referral system and that there are serious repercussions, including removal from post, in the most egregious cases of abuse. While Department oversight of referral systems is important, entrusting chiefs of mission with local supervision and responsibility is still appro­ priate and necessary, just as the Department entrusts chiefs of mission with the lives of all employees and dependents in their missions, the management of top secret information, and the conduct of key bilateral relations with the host country.
[…]
Clearly most missions’ front offices are overseeing the referral system as intended by the Department, sometimes after a little persuasion. For example, an officer at a post that was having problems said, “Our recent OIG inspection was helpful in making the front office realize the impact of their interventions with us and the appearance of undue influence. Despite our education of the front office, they have been incredulous that their good causes may pose us problems under the law.” One of the areas of emphasis for OIG inspection teams is border security readiness, which includes oversight of the referral program.

The survey, however, did reveal some disillusionment with the available recourses in those instances when the front office was itself exerting undue influ­ence. One officer at a post in the Near East said, “In general the consular section feels pressure to act simply as a rubber stamp to visa referrals by chiefs of section and above.” Another stated,“The front office is the only section that has ever tried to influence decisions in referral cases. If I were to refuse the case, then I would be hurt in the employee evaluation report (EER) process as my rater is the DCM and the Ambassador is the reviewing officer.”

It’s an instructive read from 2005, see in full here (PDF).

Let’s fast forward to two cases in 2015 specifically mentioned by State/OIG. The following is from the State/OIG inspection report of the U.S. Embassy in Tajikistan (PDF). The IG report lists Susan M. Elliott as COM, and Robert G. Burgess as DCM.

The Offices of Visa Services and Fraud Prevention Programs, the Consular Integrity Division, and the front office of the Bureau of Consular Affairs all expressed concern about the embassy’s contravention of the worldwide visa referral policy. In the latter half of 2013, the Ambassador in seven cases and the DCM in two cases contravened the worldwide nonimmigrant visa referral policy by submitting noncompliant referrals and improperly advocating for issuance.

Complications arising from noncompliance with the policy led to deteriorating relations between the consular officer and other embassy offices, perceptions of intimidation and isolation, and increased involvement of and intervention by various offices in the Bureau of Consular Affairs. In response to revised guidance from the Bureau of Consular Affairs on referral policy, dated January 13, 2014, Embassy Dushanbe issued a management notice on January 17, 2014. On October 15 and 17, 2014, the embassy conducted briefings for referring officers and obtained current compliance agreements reflecting the revised policy guidance. The OIG team met with the front office and the consular officer, and they confirm that they understand and are committed to continuing to comply with the policy going forward.

How is it that this consular officer did not get the Barbara Watson Award for demonstrating courage?

C’mon!

The “Worldwide Visa Referral Policy Problems” below is from the State/OIG report of the U.S. Embassy in Armenia (see PDF). According to the IG report, the ambassador at that time was John Heffern:

In at least 15 documented cases, the Ambassador contravened the worldwide nonimmigrant visa referral policy (9 FAM Appendix K, Exhibit I) by contacting the consular chief to communicate information about visa applicants instead of providing referral forms for the applicants. The referral policy states, “Referrals are the only allowed mechanism to advocate for or assist visa applicants prior to visa adjudication.” Some of the cases involved previously refused applicants. Referral policy permits requesting assistance via referral on behalf of previously refused applicants only in extremely limited circumstances. Few, if any, of the violations involved applicants who would have been eligible for visa referrals. The consular chief did not take adequate steps to stop the Ambassador’s inappropriate communications or to report them to the Department, as required by Department referral polices.
[…]
The embassy provides no formal, detailed briefing (“referral school”) as recommended in the worldwide policy. The consular chief gives informal referral briefings on an individual basis to new arrivals at the embassy. Lack of a formal understanding of the referral policy and process can cause misunderstanding or abuse.

Wow! And the consular section chief got harshly treated by the … the um alphabet, which did not quite line up to say he/she was at fault but you get the idea.

It is not clear what kind of repercussions are suffered by chiefs of mission who contraven the worldwide nonimmigrant visa referral policy.   According to a FAM update last November 2015, Consular Affairs has now added a NIV Referral Program Ombudsman (see 9 FAM 601.8-8(C).

Oh, wait, there’s more.

There’s an FSGB case where an FP-03 Diplomatic Security (DS) Special Agent (SA) with the Department of State (Department) was warned that there were strict prohibitions against anyone attempting to influence the visa process. The State Department later proposed to suspend him for four days on a charge of Misuse of Position. The proposal was sustained by the Grievance Board on March 3, 2015.

On October 5, 2010, a family friend of his (REDACTED), a (REDACTED) national, applied for a B1/B2 non-immigrant visa at the U.S. Embassy in REDACTED. His stated purpose for the visa request was to visit with grievant in the U.S.  When the application was denied, grievant sent an email on that same date from his State Department account to REDACTED, the Deputy Consular Section Chief in REDACTED voicing his disappointment that his friend’s visa application had been turned down. In the email, grievant asked for assistance, provided additional information on behalf of his friend and cited his own experience as a DS officer who had collaborated with consular officials investigating fraud cases. All of grievant’s emails contained his electronic signature and identified him as “Special Agent, REDACTED, U.S. Department of State, Bureau of Diplomatic Security.” In response to this email, re-interviewed and approved his visa application. REDACTED subsequently visited grievant in the US.

To make the long story short, grievant was investigated (PDF) by DS for his efforts to procure visa approvals for his friend.

The Department reviewed the DS report of investigation (ROI) and determined that between 2010 and 2012, grievant used official communication channels to contact consular officials in the U.S. Embassy in and identified himself as a DS Special Agent in order to influence favorable decisions on visa applications submitted by his friend. On December 2, 2014, grievant received notice of the Department’s proposal to suspend him for four days on a charge of Misuse of Position. The proposal was sustained on March 3, 2015.

So. Right.

It depends.

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US Implements Visa Waiver Restrictions For Dual Nationals From Iran, Iraq, Sudan, and Syria

Posted: 6:09 pm EDT

 

The ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes a provision for “terrorist travel prevention and visa waiver program” officially called the ‘‘Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015’’.  The new law which affects dual nationals from WVP countries and Iran, Iraq, Sudan and Syria includes a waiver to be be exercised by the DHS secretary.  The new law also requires the Secretary of Homeland Security to submit to the Committee on Homeland Security, the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on the Judiciary of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, the Select Committee on Intelligence, and the Committee on the Judiciary of the Senate a report on each instance in which the Secretary exercised the waiver authority during the previous year.

On January 21, the State Department announced the implementation of the changes to the Visa Waiver Program. Below is the announcement:

The United States today began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). U.S. Customs and Border Protection (CBP) welcomes more than a million passengers arriving to the United States every day and is committed to facilitating legitimate travel while maintaining the highest standards of security and border protection. Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

These individuals will still be able to apply for a visa using the regular immigration process at our embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis.

Beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked.

Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

Again, whether ESTA applicants will receive a waiver will be determined on a case-by-case basis, consistent with the terms of the law. In addition, we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.

Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a valid nonimmigrant visa issued by a U.S. embassy or consulate. Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States.

The new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation.

An updated ESTA application with additional questions is scheduled to be released in late February 2016 to address exceptions for diplomatic- and military-related travel provided for in the Act.

Information on visa applications can be found at travel.state.gov.

Current ESTA holders are encouraged to check their ESTA status prior to travel on CBP’s website at esta.cbp.dhs.gov.

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A couple days ago ….

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Can private lawyers hoard potentially classified information? Yes. No, It Depends. Wait, No?

Posted: 2:30 am EDT

 

Related to Brown v. State Department: Another Day, Another FOIA Lawsuit, David Brown wanted to know “If it is now policy to allow private lawyers to hoard potentially classified information, the public is entitled to know the authority by which such policies are maintained, and who is permitted such generous treatment.”  

The Daily Beast last week reported that Clinton’s private lawyer got his way when he pushed back after being asked to delete all copies of a classified email—a level of deference an expert calls ‘far from the norm.’  State Department employees were also reportedly told “to develop a system that would let Kendall keep the emails in a State Department-provided safe at his law firm in Washington, D.C., where he and a partner had access to them” according to the Daily Beast.

Newly released documents, obtained by The Daily Beast in coordination with the James Madison Project under the Freedom of Information Act, include legal correspondence and internal State Department communications about Clinton’s emails. Those documents provide new details about how officials tried to accommodate the former secretary of state and presidential candidate.
[…]
“The arrangement with Kendall was far from the norm,” Steven Aftergood, an expert on classification and security policy at the Federation of American Scientists, told The Daily Beast. “There are a number of attorneys around who handle clients and cases involving classified information. They are almost never allowed to retain classified material in their office, whether they have a safe or not. Sometimes they are not even allowed to review the classified information, even if they are cleared for it, because an agency will say they don’t have a ‘need to know.’ In any event, the deference shown to Mr. Kendall by the State Department was quite unusual.”
[…]
While State Department officials initially may have felt that non-government lawyers were qualified to maintain classified emails at their office, they changed their tune as investigators began to discover more top secret information among Clinton’s communications.
[…]
The arrangement with Kendall has been previously reported. But the documents reveal new details about what was happening inside the State Department as officials moved ahead with the unorthodox setup.

 

Related item:

12 FAM 530 STORING AND SAFEGUARDING CLASSIFIED MATERIAL-June 25, 2015, pdf).

 

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OPM Issues Guidelines For Incentive Awards During 2016 Election Period

Posted: 12:55 am EDT

 

On January 11, Acting Director Beth F. Cobert issued the  OPM guidelines for Appointments and Awards During the 2016 Presidential Election Period. Below is an excerpt on the prohibition of awards  from June 1, 2016 – January 20, 2017:

Under 5 U.S.C 4508, an incentive award may not be given during the period beginning June 1, 2016, through January 20, 2017, to a senior politically appointed officer, defined as:

  1. An individual who serves in an SES position and is not a career appointee as defined in 5 U.S.C. 3132(a)(4), or
  2. An individual who serves in a position of a confidential or policy determining character as a Schedule C employee.

Because Limited Term/Limited Emergency appointees are not “career appointees,” they meet this definition of senior politically appointed officer and cannot receive incentive awards during the 2016 election period.

In addition, all political appointees continue to be covered by a freeze on discretionary awards, bonuses, and similar payments.  This freeze was established by Presidential Memorandum on August 3, 2010 (https://www.whitehouse.gov/the-press-office/presidential-memorandum-freeze-discretionary-awards-bonuses-and-similar-payments) and continues to remain in effect until further notice (https://www.chcoc.gov/content/guidance-awards-fiscal-year-2014). Agencies should continue to apply this freeze in accordance with OPM’s guidance at https://www.chcoc.gov/content/guidance-freeze-discretionary-awards-bonuses-and-similar-payments-federal-employees-serving.

For additional guidance regarding appointments of current or former political appointees to competitive service, non-political excepted service, or career SES position, contact Ana A. Mazzi, Deputy Associate Director for Merit System Accountability and Compliance, at (202) 606-4309 or PoliticalConversions@opm.gov.  For guidance on awards during the 2016 Presidential election period, contact Steve Shih, Deputy Associate Director for Senior Executive Services and Performance Management, by calling (202) 606-8046 or Performance-Management@opm.gov.

Read more here.

 

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Presidential Appointees With Senate Confirmation (PAS) and the Hatch Act

Posted: 12:52 am EDT

 

Via U.S. Office of Special Counsel (OSC) | Hatch Act:

 

 

The Hatch Act, a federal law passed in 1939, limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. ​The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.​ Below is an excerpt from its FAQ on Presidential Appointee With Senate Confirmation (PAS):

I am an employee who was appointed by the President, by and with the advice and consent of the Senate (PAS). Am I covered by the Hatch Act?

Yes. An employee appointed by the President, by and with the advice and consent of the Senate (PAS), is subject to the provisions of the Hatch Act. However, certain PAS’s are not subject to the Act’s prohibition against engaging in political activity while on duty, in a federal room or building, wearing an official uniform or insignia, or using a government vehicle. To be exempt from this prohibition, a PAS must meet all of the following criteria:

1) the duties and responsibilities of his position must continue outside normal duty hours and while away from the normal duty post;

2) his position must be located within the United States; and

3) he must determine policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of federal laws.

If a PAS meets all these criteria, he is not prohibited from engaging in political activity while on duty, in a federal room or building, wearing an official uniform or insignia, or using a government vehicle, provided the costs associated with the political activity are not paid for by money derived from the Treasury of the United States. However, the PAS remains subject to all the other prohibitions of the Hatch Act, and thus, may not: use his official authority or influence for the purpose of interfering with or affecting the result of an election; knowingly solicit, accept, or receive a political contribution from any person; be a candidate for public office in a partisan election; or knowingly solicit or discourage the political activity of any person who has business before the employee’s employing office.​​​

I am an employee who was appointed by the President, by and with the advice and consent of the Senate (PAS). Does the exemption from the Hatch Act’s prohibition against engaging in political activity while on duty, which applies to me, also apply to my staff?

No. Assuming a Presidential appointee with Senate confirmation (PAS) meets the criteria outlined in the answer to the previous question, he—but only he—may engage in political activity while on duty, in a government room or building, wearing an official uniform or insignia, or using a government vehicle, so long as, the costs associated with the political activity are not paid for by money derived from the Treasury of the United States. The appointee’s staff, however, is not subject to this exemption. Therefore, the appointee’s staff members are still prohibited from engaging in political activity while on duty, in a federal room or building, wearing an official uniform or insignia, or using a government vehicle.​​

May an Presidential appointee with Senate confirmation (PAS), ask his chief of staff (or any other subordinate employee) to contact and/or liaise with a political party to find out where, or if, the party needs the PAS’s help?

No. The Hatch Act prohibits federal employees, including PAS’s, from soliciting or accepting uncompensated volunteer services for any political purpose from an individual who is a subordinate. 5 C.F.R. §§ 734.302(b)(3)​734.303(d)​​. Thus, the Act prohibits a supervisor from asking subordinate employees to contact a political party to inquire about opportunities for the PAS to assist the party.​​​

Click here for the printable FAQ (PDF). OSC also issues advisory opinions to persons seeking advice about their political activity under the Hatch Act. Individuals or their legal representatives may request an opinion about their own political activity. E-mail: hatchact@osc.gov.

 

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Related post:

Eight days till election day – do you know your Hatch Act Rules?

Burn Bag: Expectant Parents Still Waiting For Foggy Bottom to Deliver 2015 Pregnancy Cable

Via Burn Bag:

“Dear Ms. Higginbottom: It is now 2016. On behalf of all of the working mothers and fathers out there expecting babies or going through the obstetric medevac process, please release the 2015 pregnancy ALDAC.”

 

Ms. Higginbottom called out in this Burn Bag entry is the State Department’s Deputy Secretary for Management and Resources, the agency’s 3rd highest ranking official.  For readers who are not in the FS (Hi, FSOs’ moms!), an ALDAC is an acronym for “All Diplomatic and Consular Posts.” They are cables (electronic telegrams) sent by the Department of State to every U.S. Government outpost around the world. Read more here.

It looks like the State Department last sent a comprehensive guide for Foreign Service employees and family members who have questions about leave, medical evacuation to the United States and to locations abroad, and other pregnancy-related issues in 13 STATE 101508, an ALDAC dated 7/10/2013.

Don’t know why the 2015 ALDAC is reportedly held up at the 7th Floor. The FAM sections have been updated in July last year, and most recently in November 2015. The changes include  a series of updates on the Family and Medical Leave Act of 1993 and a slew of changes on use of leave. But it does not look like there are many changes on medical travel particularly 16 FAM 315.2 which covers Travel for Obstetrical Care which has not been updated since July 2012.

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Related items:

FMLA

Leave

MED

 

 

CRS: Former U.S. Hostages of Iran to be Eligible for Compensation

Posted: 12:29 am EDT

 

From CRS Legal Sidebar (PDF) via Secrecy News:

Screen Shot 2016-01-1

 

 

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False 360 Feedback Input in a Denial of Tenure Case Makes It to the Grievance Board

Posted: 3:32 am EDT

 

We’ve written previously about the 360 degree feedback tool as practiced by the State Department, most recently last fall when a Speaking Out piece was published in the Foreign Service Journal urging that the Department reevaluate its use of the 360-degree reviews (see The State Dept’s 360 Degree Feedback as Placement Tool, and Probably, a Lawsuit Waiting to Happen).

In a recent Foreign Service Grievance Board (FSGB) case, an FS-2 officer who works for USAID, appealed the denial of his grievance in which he challenged the denial of tenure by the 2014 Tenure Board, on the grounds that a principal document on which it based its decision was fatally flawed. And it includes an example of the 360 feedback gone wild.

The 2013 Tenure Board had deferred grievant for tenure consideration for one year. Grievant alleges that the recommendation for deferral was based mainly on anonymous, negative 360 degree input that was the polar opposite of grievant’s accumulated Appraisal Evaluation Forms (AEFs) and other, positive 360 degree information. When the 2014 Tenure Board rejected grievant for tenure, the Agency decided to terminate him. The centerpiece of his grievance and appeal is the 2014 Tenure Board’s alleged improper reliance upon a single, stale and flawed 2013 TEF. Furthermore, grievant complains that the Agency denied him substantive due process because it failed to provide him with reasonably specific and timely notice of his deficiencies and an opportunity to improve his job performance before the denial of tenure.

Grievant joined the Foreign Service in May 2009 as an FS-2 officer, as part of the USAID’s recruitment program to attract mid-career professionals under the Development Leadership Initiative (“DLI”).

The AEFs Before the Tenure Board.  The package of information considered by the 2013 Tenure Board included a collection of three AEFs, covering grievant’s performance from April 1, 2009 through March 31, 2010 , from April 1, 2010 through March 31, 2011 , and from April 1, 2011 through March 30, 2012. All three were uniformly positive, and they did not include any complaints that grievant was not performing adequately in any skill areas or that he was deficient in any work objective.
[…]
The 2013 TEF. This document is found in the record as Attachment J to grievant’s Appeal Submission. The author of this January 3, 2013 TEF (hereinafter REDACTED) was the Director of the agency’s REDACTED Office in USAID/Washington. He described himself as “the employee’s Office Director for five months,” indicating that he was evaluating grievant’s performance for the period of July 2, 2012 to December 19, 2012. He stated specifically that he “relied heavily on the 360 degree input provided by senior tenured officers who observed the employee’s performance in his two overseas assignments and his short stay in AID/W.” His reference to “360 degree input” denotes a certain type of information that a rater is permitted to obtain in preparation of an AEF. The use of 360 degree sources is also permissible in the preparation of a TEF.*3

In the Precepts for the Employee Evaluation Program (ADS Chapter 461) , “360 degree sources” are defined as: “Customers, peers, other managers, subordinates, and other individuals with whom or for whom an employee may have worked who can provide feedback, from their various perspectives, about the employee’s performance during any period of performance currently being evaluated.” The Precepts contain instructions for how a rater and rated employee must collaborate to select the particular 360 degree sources, some of whom are required to be solicited even if they do not respond.

According to the Record of Proceeding, at that time that the supervisor wrote the TEF, the Precepts did not explicitly direct or authorize the inclusion of 360 degree information in a TEF, although such authorization had become explicit by the time the 2014 Tenure Board made its decision. See ADS Chapter 414mad, 3.3.3 (“Responsible officials should use all appropriate sources of information in preparing the TEF, including AEFs, Appraisal Input Forms (AIFs), and 360 feedback.”).

The grievant argued that he was harmed by the underlying falsity of some of that information – compounding the impropriety. Grievant stated that some of the negative 360 comments were “literally false information that during the tenure process no one questioned or compared to the accurate facts as reflected in grievant’s OPF.”

Grievant identifies two examples of prejudicially false information that came to light:

One, grievant learned that one of the originally unnamed 360 degree sources was REDACTED who was a Civil Service supervisor of a technical office in the REDACTED in Washington, D.C. The underlying 360 degree source material that sent to was a memorandum of December 11, 2012. In it, he opined that grievant did not have the ability to function at the FS-01 level.  REDACTED added, “The fact that he has been curtailed in his first two overseas assignments in REDACTED and REDACTED by the Agency reinforces [sic] my recommendation.”9 The unchallenged information in the Record of Proceedings in this appeal shows that grievant left REDACTED  because he volunteered for a CPC (Critical Priority Country) assignment in REDACTED. Then, he left the subsequent assignment REDACTED at the end of one year, because one year was the standard length of time for a CPC assignment. Neither departure from post was involuntary or punitive in any way.

Two, another important false statement about grievant came from a 360 degree source later identified as REDACTED.  In an email of December 10, 2012 to he described himself as grievant’s “mentor” in REDACTED . In part, REDACTED stated,

He [grievant] taxed my experience and skills to the max until I finally requested that he be transferred out of our Mission. To cut to the quick, I would not recommend him for Tenuring [sic], I would rate him as negative on all of the FS Precepts for tenuring and I believe that the Agency would be better served employing [grievant] as a PSC. I did not write his AEF but I did have input and discussed his negative performance with his supervisor . . . . He refused to do rotations stating that he knew all about the Agency, our rules and regulations and how other tech and support offices functioned. . . . I had him removed.10

Grievant identifies several false statements about him in this TEF. One, grievant’s AEFs all confirmed that he completed whatever training rotations had been prescribed for him. […]  Moreover, comments reveal a fundamental misunderstanding of grievant’s status as a “mid-level” career candidate, who after the initial few weeks of orientation, was not subject to the types of rotations that applied to “entry-level” candidates. As mid-level, he was assumed to be knowledgeable in his field and was evaluated as a regular employee, not as a trainee – one who, according to his AEF’s, fully met those expectations.

Golly! You folks at USAID know this is wild, right?

Here is the decision of the FSGB: HELD: The denial of tenure by the 2014 Tenure Board was tainted by the flawed and falsely prejudicial 2013 Tenure Evaluation Form (TEF) and was also issued in violation of several Agency Precepts. The denial of tenure is reversed and the case remanded to the Agency with instructions to expunge the 2013 TEF, as well as the letters deferring and denying tenure, and to place grievant’s updated Official Personnel File (OPF) before the next Tenure Board.

Read the ROI of the case below:

 

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Congress Authorizes Petition Fee Increases For Certain L-1 and H1B Visas Until Sept 30, 2025

Posted: 3:05 am EDT

 

A section of the ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes an item on the temporary increase of “visa fee” for L-1 and H1B, as well as extensions.  The processing fee for petition based visa categories like L (Intracompany Transferees) and H (Temporary Workers/Employment or Trainees) visas is currently posted on travel.state.gov at $190.00. It looks like the bump in fees is really for the L-1 and H1B visa petition fees (with DHS) and not for the visa processing fees collected by the State Department.

The new law talks about the “combined filing fee and fraud prevention and detection fee” which are fees already collected by DHS.  Under Pub. L. 111-230, DHS/CIS charges $2,000  for H-1B petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the United States in H-1B, L-1A or L-1B nonimmigrant status. Under the same law, L1 petitioners are also charged $2250. Both provisions ended on October 1, 2014, but were extended through September 30, 2015 by Pub. L. 111-347. The temporary bump in the L1 and H1B petition fees under Public Law No: 114-113 that just passed will be good until September 30, 2025.

‘‘SEC. 411. 9-11 RESPONSE AND BIOMETRIC ENTRY-EXIT FEE.

‘‘(a) TEMPORARY L-1 VISA FEE INCREASE.—Notwithstanding section 281 of the Immigration and Nationality Act (8 U.S.C. 1351) or any other provision of law, during the period beginning on the date of the enactment of this section and ending on September 30, 2025, the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)), including an application for an extension of such status, shall be increased by $4,500 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are nonimmigrants admitted pursuant to subparagraph (H)(i)(b) or (L) of section 101(a)(15) of such Act.

‘‘(b) TEMPORARY H-1B VISA FEE INCREASE.—Notwithstanding section 281 of the Immigration and Nationality Act (8 U.S.C. 1351) or any other provision of law, during the period beginning on the date of the enactment of this section and ending on September 30, 2025, the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)), including an application for an extension of such status, shall be increased by $4,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act.

‘‘(c) 9-11 RESPONSE AND BIOMETRIC EXIT ACCOUNT.—‘‘(1) ESTABLISHMENT.—There is established in the general fund of the Treasury a separate account, which shall be known as the ‘9–11 Response and Biometric Exit Account’.

‘‘(2) DEPOSITS.—

‘‘(A) IN GENERAL.—Subject to subparagraph  (B), of the amounts collected pursuant to the fee increases authorized under subsections (a) and (b)—

‘‘(i) 50 percent shall be deposited in the general fund of the Treasury; and

‘‘(ii) 50 percent shall be deposited as offsetting receipts into the 9–11 Response and Biometric Exit Account, and shall remain available until expended.

‘‘(B) TERMINATION OF DEPOSITS IN ACCOUNT.—After a total of $1,000,000,000 is deposited into the 9–11 Response and Biometric Exit Account under subparagraph (A)(ii), all amounts collected pursuant to the fee increases authorized under subsections (a) and (b) shall be deposited authorized under subsections (a) and (b) shall be deposited in the general fund of the Treasury.

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New Law Authorizes Revocation or Denial of U.S. Passports to Certain Tax Delinquents

Posted: 12:58 am EDT

 

On December 4, 2015, President Obama signed into law the “Fixing America’s Surface Transportation Act,” or “FAST Act.” This is the first law enacted in over ten years that provides long-term funding certainty for surface transportation. DOT says that the FAST Act largely maintains current program structures and funding shares between highways and transit. It is a down-payment for building a 21st century transportation system, increasing funding by 11 percent over five years.  Read more here from the Department of Transportation.

Screen Shot 2015-12-27 at 9.50.33 PMThere is also one item included in the FAST Act that’s related to the State Department and the traveling American public. Section 7345 provides for the revocation or denial of U.S. passports to applicants with certain tax delinquencies considered ‘seriously delinquent tax debt’ –that is, a tax liability that has been assessed, which is greater than $50,000 and a notice of lien has been filed. To be clear, the Internal Revenue Service (IRS) is not actually able to revoke or deny any American taxpayer a passport for delinquent taxes. Revocation or denial or passports can only be done by the Department of State. It looks like the IRS Commissioner will need to make a certification of “seriously delinquent tax debt” to the Secretary of Treasury, who must then transmit the certification to the Secretary of State for the actual revocation. The new law provides for a humanitarian and emergency exception, and issuance of a limited passport for direct return to the United States.

This is similar to the arrangement on passport revocation with child support obligation enforcement.  The State Department works with the Health and Human Services on Child Support Arrearage.  Under the HHS passport denial program,  noncustodial parents certified by a state as having arrearages exceeding $2,500 are submitted by the Federal Office of Child Support Enforcement (OCSE) to the Department of State (DoS), which denies them U.S. passports upon application or the use of a passport service.

Via ‘‘Fixing America’s Surface Transportation Act’’ or the ‘‘FAST Act’’ (PDF):

SEC. 32101. REVOCATION OR DENIAL OF PASSPORT IN CASE OF CERTAIN UNPAID TAXES.

‘‘SEC. 7345. REVOCATION OR DENIAL OF PASSPORT IN CASE OF CERTAIN TAX DELINQUENCIES.

‘‘(a) IN GENERAL.—If the Secretary receives certification by the Commissioner of Internal Revenue that an individual has a seriously delinquent tax debt, the Secretary shall transmit such certification to the Secretary of State for action with respect to denial, revocation, or limitation of a passport pursuant to section 32101 of the FAST Act.

‘‘(b) SERIOUSLY DELINQUENT TAX DEBT.—

‘‘(1) IN GENERAL.—For purposes of this section, the term ‘seriously delinquent tax debt’ means an unpaid, legally enforceable Federal tax liability of an individual—

‘‘(A) which has been assessed,

‘‘(B) which is greater than $50,000, and

‘‘(C) with respect to which—

‘‘(i) a notice of lien has been filed pursuant to section 6323 and the administrative rights under section 6320 with respect to such filing have been exhausted or have lapsed, or

‘‘(ii) a levy is made pursuant to section 6331.

‘‘(2) EXCEPTIONS.—Such term shall not include—

‘‘(A) a debt that is being paid in a timely manner pursuant to an agreement to which the individual is party under section 6159 or 7122, and

‘‘(B) a debt with respect to which collection is suspended with respect to the individual—

‘‘(i) because a due process hearing under section 6330 is requested or pending, or

‘‘(ii) because an election under subsection (b) or (c) of section 6015 is made or relief under subsection (f) of such section is requested.

‘‘(c) REVERSAL OF CERTIFICATION.—

‘‘(1) IN GENERAL.—In the case of an individual with respect to whom the Commissioner makes a certification under subsection (a), the Commissioner shall notify the Secretary (and the Secretary shall subsequently notify the Secretary of State) if such certification is found to be erroneous or if the debt with respect to such certification is fully satisfied or ceases to be a seriously delinquent tax debt by reason of subsection (b)(2).

[…]

(e) AUTHORITY TO DENY OR REVOKE PASSPORT.—

(1) DENIAL.—

(A) IN GENERAL.—Except as provided under subparagraph (B), upon receiving a certification described in section 7345 of the Internal Revenue Code of 1986 from the Secretary of the Treasury, the Secretary of State shall not issue a passport to any individual who has a seriously delinquent tax debt described in such section.

(B) EMERGENCY AND HUMANITARIAN SITUATIONS.—Not- withstanding subparagraph (A), the Secretary of State may issue a passport, in emergency circumstances or for humanitarian reasons, to an individual described in such subparagraph.

(2) REVOCATION.—

(A) IN GENERAL.—The Secretary of State may revoke a passport previously issued to any individual described in paragraph (1)(A).

(B) LIMITATION FOR RETURN TO UNITED STATES.—If the Secretary of State decides to revoke a passport under subparagraph (A), the Secretary of State, before revocation, may—

(i) limit a previously issued passport only for return travel to the United States; or

(ii) issue a limited passport that only permits return travel to the United States.

(3) HOLD HARMLESS.—The Secretary of the Treasury, the Secretary of State, and any of their designees shall not be liable to an individual for any action with respect to a certification by the Commissioner of Internal Revenue under section 7345 of the Internal Revenue Code of 1986.

According to the WSJ, the Treasury Inspector General for Tax Administration, or Tigta, a watchdog agency, found that the IRS sent 855,000 notices to U.S. citizens abroad in 2014.

Treasury OIG notes that as of May 2014, the State Department estimated that approximately 7.6 million U.S. citizens live in a foreign country. It also reports this:

Even though the IRS sent approximately 855,000 notices and letters to U.S. taxpayers living in other countries during Calendar Year 2014, it cannot determine taxpayer response rates.  The lack of data on response rates for international taxpayers is problematic because this information is needed to determine the effectiveness of international correspondence on increasing taxpayer compliance and to make program improvements.

7 FAM 1380 which provides guidance on passport denials, limitations, and revocations is unfortunately behind the firewall so we are unable to see the specific updates in the Foreign Affairs Manual.

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