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

Posted: 4:08  am EDT
Updated: 2:29 pm EDT
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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.
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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.
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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.
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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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@StateDept Launches Center for the Study of the Conduct of Diplomacy at FSI

Posted: 1:35 am EDT
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Excerpt from D/Secretary Antony J. Blinken on “American Diplomacy: Preparing for the Challenges of Tomorrow,” February 2, 2016:

Every day, our team here at State works towards big goals like this that benefit from the leadership and creativity of the innovation community.

And every day, our team tackles issues at the intersection of technology and foreign policy—from modernizing arms control agreements to negotiating norms of behavior in cyberspace or outer space.

Despite this focus, we need to create more bridges that allow our diplomats to tap into the energy and ingenuity of American education, innovation, and entrepreneurship—and enable our foreign policy priorities to spark or accelerate new ideas.

Developed under Deputy Secretary Burns’ leadership, the Foreign Service Institute’s Center for the Study of the Conduct of Diplomacy is one such bridge—ensuring that we apply the lessons of the past to our conduct and actions in the future.

We are also developing a new core curriculum at FSI, to ensure that everyone starts their careers with foundational knowledge and skills relevant to this century. Through new and experiential training, we will prepare our officers to better understand unstated assumptions that shape conflict and collaboration, apply future forecasting to the geopolitical world of tomorrow, and tap into unconscious drivers of behavior that will help us effectively conduct and advance our foreign policy.

To help build another of these bridges, Secretary Kerry recently established the Innovation Forum in order to enable our foreign policy leaders to be able to see around the innovation corner—to ask important questions like: “What does the revolution in robotics mean for warfighting? What do advances in artificial intelligence mean for our labor markets? What does the advent of digital currency mean for the dollar?”

Read in full here.

 

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Senator on Cruz hold over Norway nominee: 836 days since there was last a confirmed Ambassador to Norway

Posted: 1:01 am EDT
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The Hill reports:

Sen. Ted Cruz blocked a Democratic push to approve a handful of State Department nominees on Wednesday, even though the Texas Republican is far from D.C., campaigning in New Hampshire. […]  Sen. Mike Lee (R-Utah), however, objected to each of the nominations, noting that he was doing so on behalf of Cruz. The presidential candidate has pledged to block State Department nominees over the Iran nuclear deal. Cardin called Cruz’s objections a “master class in needless partisan obstruction.”

Last month, Democratic Sen. Amy Klobuchar (Minn.) took to the floor to urge for the confirmation of the nominees for Sweden and Norway, but spoke at length on behalf of Sam Heins, the nominee to be the U.S. Ambassador to Norway who hails from her state.

Ms. KLOBUCHAR. Madam President, I rise today to call on the Senate and all of my colleagues to allow us to move forward on the nomination of Sam Heins of Minnesota to be the U.S. Ambassador to Norway. The U.S. Ambassador for Sweden has also been held up. Coming from the State of Iowa, which I believe is over 10 percent Scandinavian–over 300,000 people–I think the Presiding Officer understands the importance of our country actually having Ambassadors to these incredibly important allies and nations.

It has now been 836 days since there was last a confirmed Ambassador to Norway, one of our most important European allies. Part of this situation was caused by a different nominee who has some issues with the committee and with other Senators. That person has now been replaced, and it has been 166 days since a new nominee went through the Foreign Relations Committee. Mr. Heins was approved by a voice vote, without any controversy, as was the Ambassador to Sweden. I thank Senators Corker and Cardin and Senators McConnell and Reid for their help in trying to get this through.

Unfortunately, these nominations are now being held up by Senator Cruz. Based on my discussions with him, it is not because of the qualifications of these nominees; it is related to, I suppose, other issues. Yet, I note for those Scandinavians out there, Senator Cruz has allowed votes on Ambassadors to other countries. We have Ambassadors in France, in England, in nearly every European nation, but not these two Scandinavian countries.

Perhaps people don’t understand the importance of these nations because they just think these people wear sweaters all the time. I don’t know what they think of Norway and Sweden, but, in fact, Senator Cruz should understand that they are two of our best allies. Norway is one of our country’s strongest and most dependable allies.
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I am focusing today on Norway. I will focus on Sweden in the future as I continue to give these speeches. I don’t think we can take these countries lightly just because it is cold there and darker in the winter. These are incredibly important allies and trading partners. They deserve to be treated like other European nations. They deserve to have an ambassador from the United States of America.

It is time to end this delay and do the work the Senate is supposed to do. Let’s move ahead and work to confirm these qualified nominees to represent us abroad. One is a country in Europe that just bought 22 fighter planes from Lockheed Martin. If they had bought 22 fighter planes from the Presiding Officer’s State, I believe the Presiding Officer would have looked at the fact that if it is a noncontroversial nominee to a country that invests in the United States of America, that is an ambassador we need to get confirmed, and we would get this done.

Read in full here (PDF) from the Congressional Record.

 

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