A Perfect Case for OIG’s Office of Evaluations & Special Projects: How the Visa Waiver Sausage Gets Made

— Domani Spero
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In 2004, Alden P. Stallings, a Foreign Service Officer pleaded guilty for writing false visa referrals. According to DOJ, Stallings was assigned to the U.S. Embassy in Seoul, Korea as the Deputy Public Affairs Officer when he submitted to the Consular Section 54 referrals in which he provided false information about his relationship with the applicants. DOJ charged that on each of the 54 referral forms, Stallings stated that he recommended the issuance of a non-immigrant visa to the applicant because the applicant was an “important post contact” whom he had “personally known” since a specified date. In fact, on each of the 54 occasions, Stallings knew that his statement on the referral form was false, and that he did not personally know the contact.

At the time Stallings pleaded guilty,he faced a maximum sentence of five years in prison and a $250,000 fine, and that case effectively ended his career.

But hey, is it true that if you are in a senior position or a congressional representative,  a personal intervention on behalf of a rejected visa applicant — who allegedly brought foreign maids into the country under false visa pretenses, and donated money to political campaigns — is A-okay?

Via the NYT:

The Obama administration overturned a ban preventing a wealthy, politically connected Ecuadorean woman from entering the United States after her family gave tens of thousands of dollars to Democratic campaigns, according to finance records and government officials.

The woman, Estefanía Isaías, had been barred from coming to the United States after being caught fraudulently obtaining visas for her maids. But the ban was lifted at the request of the State Department under former Secretary of State Hillary Rodham Clinton so that Ms. Isaías could work for an Obama fund-raiser with close ties to the administration.

It was one of several favorable decisions the Obama administration made in recent years involving the Isaías family, which the government of Ecuadoraccuses of buying protection from Washington and living comfortably in Miami off the profits of a looted bank in Ecuador.
[…]
In the spring of 2011, Ms. Isaías, a television executive, was in a difficult situation.

Her father and uncle were Ecuadorean fugitives living in Miami, but she was barred from entering the United States after she brought maids into the country under false visa pretenses and left them at her parents’ Miami home while she traveled.

“Alien smuggling” is what American consular officials in Ecuador called it.

American diplomats began enforcing the ban against Ms. Isaías, blocking her from coming to Miami for a job with a communications strategist who had raised up to $500,000 for President Obama.
[…]
Over the course of the next year, as various members of the Isaías family donated to Mr. Menendez’s re-election campaign, the senator and his staff repeatedly made calls, sent emails and wrote letters about Ms. Isaías’s case to Mrs. Clinton, Ms. Mills, the consulate in Ecuador, and the departments of State and Homeland Security.

After months of resistance from State Department offices in Ecuador and Washington, the senator lobbied Ms. Mills himself, and the ban against Ms. Isaías was eventually overturned.
[…]
David A. Duckenfield, a partner at the company who is now on leave for a position as deputy assistant secretary of public affairs at the State Department, said Ms. Isaías worked for the firm but declined to comment further. Another senior executive at the firm said she must work outside the office because he had never heard of her.
[…]
“There are rigorous processes in place for matters such as these, and they were followed,” said the spokesman, Nick Merrill. “Nothing more, nothing less.”

A White House spokesman, Eric Schultz, declined to comment, saying that visas are issued free from political interference by other federal agencies.

Mr. Boehm, the former Pennsylvania prosecutor, said Senate ethics rules allowed members of Congress to reach out to the administration on behalf of a constituent. “Members of Congress do a lot for their constituents,” Mr. Boehm said.

“These folks are not his constituents,” he added, referring to Mr. Menendez.

See the whole report here: Ecuador Family Wins Favors After Donations to Democrats. 

Pardon me? Ah, yes, the vomitorium is next door to the right, please don’t make a mess.

NBC also did some related reporting on this story:

In 2011, current and former officials said, the U.S. Consulate decided there should be no more waivers for Estefania Isaias. They had grown increasingly concerned about allegations of visa fraud by Estefania and other wrongdoing by her family, sources familiar with the case said.

Current and former officials say Menendez and his staff started making repeated phone calls, sending emails and writing letters to then Secretary of State Hillary Clinton and her former chief of staff Cheryl Mills.
[…]
In 2012, after Menendez contacted Clinton’s office, the State Department recommended that the Department of Homeland Security approve the visa waiver — and it did, overruling the decision made by U.S. consular officials in Ecuador.
[…]
Regarding the Isaias visa case, Menendez Communications Director Tricia Enright told NBC 4 New York that unnamed sources are again “peddling garbage to smear the senator,” adding that campaign cash played no role in this case.

“In this case, our office believed Ms. Isaias was wrongly denied approval of a waiver allowing her to work in the US on her H1-B visa , a waiver she had received six times before any engagement by our office,” Enright said.

Enright added the Senator was just one of several members of Congress who contacted the State Department, the U.S. Consulate in Ecuador and Homeland Security in asking for an independent review of Estefania Isaias’s visa case.
[…]
A U.S. State Department spokesman said it receives 100,000 inquiries from Congress each year about consular-related issues. “It’s not uncommon for these requests to be received through the office of the Secretary, and we give great attention to every congressional inquiry, reviewing each on its individual merits, no matter where it’s received,” said state department spokesman Alec Gerlach.

There are lots of things that should bother us about this story.

First, it makes one wonder why an elected congressional representative would reach out to the State Department on behalf of a visa applicant who is not even a constituent.  Why? This individual is from Ecuador, the last time we look, even rich Ecuadorans are not allowed inside our voting booths. Is there a new kind of foreign constituent services in Congress that we should all be aware of?

When a consular officer determines that the applicant is ineligible to receive a visa, the visa application is denied. The Immigration and Nationality Act does contains provisions for certain ineligible applicants to apply for waivers of their ineligibility. Senator Menendez’s spox basically says, the Senator was just one of several members of Congress who contacted the State Department about this case, why are you picking on him?  So, how many congressional members sent howlers to the Visa Office concerning obtaining a waiver for this case?  Should we file this under the WTF/WHY folder?

Second, isn’t it time to put all these congressional inquiries in public domain, searchable by names of visa applicants, names of congressional representatives who send these congressional inquiries to the State Department and/or our embassies overseas, and cross-referenced to a database for political contributions?  We have people overseas whose jobs consist solely of answering letters from congressional representatives demanding why whatshisname and his cousin or neighbor did not get a visa. Yes, it’s time for a searchable database, something similar to POGO’s Foreign Influence Database. Maybe we can get Congress to pay for something like that? [Insert wink here].

Most of our readers probably know that our visa issuing offices overseas are staffed by first and second tour untenured officers. Who protects them from something like this? In an ideal world, the consular boss should have an umbrella that protect entry level officers from shit like this, but what happens in the real world? And how would you feel if you’re it and there’s no umbrella?  Sin paraguas. Nada.

The Congress, in enacting INA 212(d)(3)(A), conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers for nonimmigrant visa (NIV) ineligibilities to the Department of Homeland Security (DHS) for approval.  According to  9 FAM 40.301Customs and Border Protection’s Admissibility Review Office (CBP/ARO) requires a positive recommendation from State (normally the consular office) in order to take action on a waiver request, but the State Department’s Visa Office can also make the recommendation (see 9 FAM 40.301 N6.2). The NBC report says that the State Department overruled the U.S. consular officials in Ecuador, so presumably that is the Visa Office.

So who twisted who’s arms up in Foggy Bottom would be a really excellent question, wouldn’t it?

For people who are not in Congress, visa referrals are the only allowed mechanism to advocate for or assist visa applicants. The State Department inscribed in the regs that all employees overseas and in domestic assignments may not use their official email or Department letterhead to communicate with a post about a personal visa matter, such as the case of a relative or friend. The referrals are considered appropriate only when they further U.S. government interests, not personal interests. It doesn’t matter if you’re trying to get relatives of your foreign born spouse to visit the U.S.. Presumably the exception to this is if the spouse is the son or daughter of the president of a foreign state we want to do business with, in which case, then it could be of U.S. government interest. But other than that, tough luck.

9 FAM K states that “All mission personnel are held to the Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR 2635.101(b)(14)). They must “avoid any actions creating the appearance that they are violating the law or the ethical standards.” Advocacy outside of the referral process is categorically prohibited.”

These standards of conduct only applies to the Executive Branch employees, presumably the other two branches of government have their own standards of conduct so there’s that…right?

We do hope that State/OIG investigates the use/process/granting of visa waivers, show how that sausage is made and how untenured entry level officers are protected from potential internal pressures. Given the names included on the NYT and NBC reports, we anticipate that this task needs “muchos huevos grandes”ala Stephen Colbert. We all know it needs to be done, but will it?  The appearance of an intervention or any special treatment afforded a wealthy visa applicant in exchange for something, not only erodes our institutions, it also publicly undermines what our embassies tell thousands of paying visa applicants everyday:

“Visa applicants must qualify on the basis of the applicant’s residence and ties abroad, rather than assurances from U.S. family and friends.

That getting a visa is not about who you know … otherwise, people might think that Uncle Sam is talking crap as it collects $160 non-refundable fees from regular visa applicants who do not have friends in the right places.

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In related news, K-visa holders just hit a reality show …

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