State/T to SFRC in Full Swagger and Smirk, “You’ll have to ask Russia”

 

 

 

 

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Visa Refusals Under INA §212(a)(4) For “Public Charge” Spiked in FY2018

In an April 24, 2019 meeting between the the Department of State and  the American Immigration Lawyers Association (AILA), the group asked the State Department/s Consular Affairs bureau about the public charge refusals for visa applicants.

AILA: Based on data provided by the Department of State, it appears that there were four times as many §212(a)(4) refusals in 2018 as compared to 2017. However, approximately the same proportion of initial refusals were overcome in both years. Thus, it appears that the total number of applicants unable to overcome the initial refusal rose significantly in 2018. Please confirm: a. Aside from guidance provided in the FAM, has State issued new or additional guidance in 2018 concerning how consular officers should evaluate eligibility under §212(a)(4)?

DOS: State hosted a series of webinars in 2018 and 2019 for consular officers reviewing the update to public charge eligibility, but other than the FAM update in 2018, there has been no additional formal guidance released on how to evaluate eligibility under §212(a)(4). b.

Visa applicants need to satisfy this provision of law by demonstrating proof of adequate financial support in the United States. A visa refusal, or ineligibility, under section 212(a)(4) of the INA means that the consular officer determined that the applicant is  likely to become a public charge in the United States. Public charge means that the consular officer determined that the applicant is  likely to become primarily dependent on the U.S. government for your existence and financial support in the United States. Most immigrant visa applicants are required to submit an Affidavit of Support (Form I-864, I-864A, I-864W, or I-864EZ, as applicable) from the U.S. sponsors who filed petitions for them. Some categories of immigrant visa applicants are not required to have Affidavits of Support. These are categories where no U.S. citizen or lawful permanent resident relative filed a petition on your behalf, including most employment-based immigrants and diversity visa (DV) applicants.

Below are the number of visa refusals under the public charge grounds for FY2017 and FY2018:

click on image to see larger view

click on image to see larger view

 

 

In January 2018, the Department released an unclassified cable 18 STATE 942 January 4, 2018 with an Update to 9 FAM 302.8 Public Charge – INA 212(A)(4): Excerpt below with the relevant section.

3. INA 212(a)(4)(B) continues to provide that officers must take into account the totality of the alien’s circumstances at the time of visa application, including, at a minimum: (a) age, (b) health, (c) family status, (d) assets, resources, financial status, and (e) education and skills. As revised, 9 FAM 302.8-2(B)(2) now includes detailed guidance to help officers assess these statutory factors when considering the totality of the applicant’s circumstances. For instance, 9 FAM 302.8-2(B)(2)(f)(1)(b)(i) provides that an officer may consider “past or current receipt of public assistance of any type” in determining whether an applicant is likely to become a public charge, although officers must make a determination based on the present circumstances. Consequently, an applicant’s current receipt of public assistance may not raise significant future concerns, based on the totality of circumstances. For example, if the applicant just completed an educational degree and received a credible job offer, the applicant’s education and skills might provide a sufficient basis to find that the applicant overcomes any public charge ineligibility concerns in spite of current lack of assets. Alternatively, an applicant’s past receipt of public assistance could be very significant: for example, if the applicant’s spouse was the family’s primary income earner, but recently died. In this case, the applicant’s recent change in family status and likely change in financial status would weigh heavily in considering the totality of the circumstances.

4. Additionally, 9 FAM 302.8-2(B)(3), paragraph b, as revised provides that a “properly filed and sufficient, non-fraudulent” Affidavit of Support by itself may not satisfy the INA 212(a)(4) public charge requirement. The Affidavit of Support requirement at INA 213A and the public charge ineligibility at INA 212(a)(4) are distinct requirements which, where both are applicable, must both be satisfied. Accordingly, a properly filed and sufficient Affidavit of Support is essential, but does not preclude denial on public charge grounds. Officers should consider such affidavits as one factor in the totality of the applicant’s circumstances, and, may find the applicant is likely to become a public charge if, for example, the applicant is in very poor health, is unable to work, and is likely to incur significant medical costs. Similarly, if an applicant does not clearly overcome public charge concerns but could with a joint sponsor, then a consular officer’s evaluation of the likelihood the joint sponsor would voluntarily meet his or her financial obligations toward the applicant becomes vital to the adjudication. See 9 FAM 302.8- 2(B)(3)(b)(1)(b). 5. The updated guidance at 9 FAM 302.8 is effective immediately.

 

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R. Clarke Cooper Sworn-In as Asst. Secretary for Political-Military Affairs (State/T/PM)

 

R. Clarke Cooper was confirmed as Assistant Secretary for Political Military Affairs on April 30, 2019. He was sworn-in to office by Under Secretary Andrea Thompson on May 3rd. Pol-Mil is a bureau under the Arms Control and International Security (T) family. He succeeds Puneet Talwar who was bureau head from 2014–2017.  Ambassador Tina Kaidanow served as Acting A/S for Pol-Mil until her retirement from the Foreign Service in and move to the Pentagon in 2018.

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Grievant Prevails Over Diplomatic Security’s Duplicative Disciplinary Actions

 

Via FSGB Case No. 2018-027

HELD – The Board held that the Department failed to meet its burden of proving that it did not violate agency policy when it imposed a second round of discipline (a two-day suspension without pay) after grievant had previously received several oral admonishments) for the same act of misconduct.

… Grievant accessed the CCD and reviewed the female friend’s visa records. He then sent an email on May 24, 2013 to the Consular Officer who had adjudicated the visa application, asking why the visa had not been approved and whether there was anything the applicant could do to “overcome” the disapproval.

The email read in part:

I explained to [the inquiring REDACTED Official] that the visa issuance process is an independent process done by the consular section at the respective embassy [sic] and that I have no involvement in the process or adjudication of the application, but that I would check with the embassy to see if there was anything that she could do or provide to overcome the refusal. Is there anything the applicant could do or provide to overcome the 214(B) refusal? Or is it pretty solid given no local employment and only having recently started her studies in business admin?

Grievant did not receive a response to his inquiry and he took no further action

CASE SUMMARY – In May 2013, grievant, a Diplomatic Security (DS) Special Agent, received a request from a professional colleague inquiring about a visa denial of a female friend of another colleague. Grievant accessed the Consular Consolidated Database (CCD) to determine who the Consular Officer was for the visa denial and drafted an email to that officer inquiring whether there was anything his contact could do regarding the denial. Within a few days, the Visa Chief at the post that made the visa decision, wrote to the Consular Integrity Division of DS (DS/CID) advising that grievant had apparently accessed the CCD without a work related need to do so. DS/CID passed the matter to the Chief of the Office of Investigations and Counterintelligence, Criminal Division (DS/ICI/CR). The Chief of DS/ICI/CR consulted with the Supervisory Special Agent of DS/CID and with the Chief of the Criminal Fraud Investigations Branch (CFI) before deciding to refer the matter to grievant’s immediate supervisors for whatever action they deemed appropriate.

Two of grievant’s supervisors opened administrative inquiries in June 2013, contacted grievant, learned from him that he immediately acknowledged the improper access of the CCD and each decided to give grievant an oral admonishment. One additional supervisor also admonished grievant orally. All management officials concluded that no further action was necessary. Grievant was so informed by at least two of these officials.

In the fall of 2014, the DS Office of Special Investigations (DS/OSI) informed grievant that it was opening an investigation into the same matter. During an interview with grievant and his counsel, grievant advised that he had already been counseled for this act of misconduct. He provided proof that he had been admonished; however, he was proposed for a three-day suspension that was later mitigated to two days. The suspension proposal was sustained by the Department and grievant served the two-day suspension.

A grievance regarding duplicative discipline was denied by the agency. On appeal, the Board concluded that all regulatory steps had been followed by grievant’s supervisor who initially determined that he was the appropriate official, in consultation with others at DS, to determine what discipline should be imposed. The Board further concluded that administrative inquiries were properly conducted by additional supervisors after evidence was gathered, grievant was consulted, and all appropriate factors were considered. The Board found that specific agency policy precluded grievant from being subjected to a second disciplinary process. Accordingly, the Board held that the Department was obligated to refund grievant’s pay and benefits lost during the suspension; his Official Performance Folder should have all references to the suspension proposal and decision removed; and that grievant’s OPF should be reviewed by reconstituted Selection Boards for each year (2017 and possibly 2018) in which the suspension letter was in the file.

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EEOC Damages Increased in Two @StateDept Cases

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

Commission Increased Award of Compensatory Damages to $50,000. The Commission previously determined that Complainant was discriminated against when the Agency failed to grant him a medical clearance based on its “worldwide availability” requirement. Following a supplemental investigation, the Agency awarded Complainant $5,000 in non-pecuniary compensatory damages noting that Complainant did not provide any medical evidence to support his claim. The Commission increased the award to $50,000 on appeal. Complainant stated that he became despondent, depressed, and reclusive because of the Agency’s discriminatory actions. Complainant experienced sleeplessness, crying spells, weight loss, anger, and humiliation. Complainant’s husband and friends submitted statements supporting his claim. The Commission determined that an award of $50,000 in nonpecuniary compensatory damages was more appropriate given the nature, severity and duration of the distress Complainant experienced as a direct result of the discrimination. Harvey D. v. Dep’t of State, EEOC Appeal No. 0120171079 (Aug. 23, 2018).

Commission Increased Award of Non-Pecuniary Damages to $50,000. The Commission previously found that Complainant was subjected to sexual harassment by her supervisor and ordered the Agency, among other things, to investigate Complainant’s claim for damages. The Agency awarded Complainant $20,000 in non-pecuniary damages, and the Commission increased the award to $50,000 on appeal. The Commission noted that, more likely than not, the sexual harassment was not the only factor that caused Complainant’s depression and anxiety. Complainant’s brother was executed in the Middle East, and Complainant also noted that her co-workers questioned her reputation because of the way she dressed. Nevertheless, the Commission found that the sexual harassment was a significant reason for the ridicule Complainant experienced, as well as her depression, poor self-esteem, irritability, anger, difficulty sleeping, exhaustion, weight gain, and thoughts of suicide. The Commission noted that, seven months after the harassment ceased Complainant was able to form a romantic relationship, and she continued working at the Agency. Considering all of these factors, the Commission concluded that Complainant was entitled to an award of $50,000 in non-pecuniary damages. The Commission concurred with the Agency that Complainant failed to prove her claim for pecuniary damages. Blanca B. v. Dep’t of State, EEOC Appeal No. 0120171031 (Aug. 16, 2018).

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@StateDept Dedicates the New U.S. Embassy in Jakarta, Indonesia @usembassyjkt

 

Via State Department: 03/19/19 The Department of State Dedicates the New U.S. Embassy in Jakarta, Indonesia

As a display of our enduring friendship and important partnerships with Indonesia and the Association of Southeast Asian Nations (ASEAN), U.S. Ambassador to Indonesia Joseph R. Donovan Jr., Chargé d’affaires for the U.S. Mission to ASEAN Jane Bocklage, and Director of Overseas Buildings Operations (OBO) Addison D. “Tad” Davis IV, along with Indonesian Government officials, dedicated the new U.S. Embassy in Jakarta, Indonesia today.

The new complex provides a secure, modern, sustainable, and resilient platform for U.S. diplomacy in Indonesia and the ASEAN region.

Davis Brody Bond Architects and Planners of New York, New York is the design architect for the project and Page of Washington, D.C. is the architect of record. B.L. Harbert International of Birmingham, Alabama constructed the facility.

Since 1999, as part of the Department’s Capital Security Construction Program, OBO has completed 154 new diplomatic facilities and has an additional 49 projects in design or under construction.

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Ambassador Donovan notes that “This celebration comes at a very opportune time, as this year we are also celebrating 70 years of diplomatic ties between the United States and Indonesia. The United States was one of the first countries to recognize Indonesia’s independence, establishing our first embassy on December 28, 1949. When President Truman appointed the first U.S. ambassador to Indonesia, H. Merle Cochran, he reaffirmed U.S. support welcoming Indonesia into the “community of free nations.”

He added that architects and designers took into consideration Jakarta’s climate and that the building uses the latest in environmental sustainability features that reduces energy consumption. The covered walkways are topped with solar panels  and the exterior metal sunshades limit sun exposure and reduce the demand for air conditioning. The building’s design reportedly also incorporates water conservation strategies to irrigate the green landscaped areas by collecting and re-using storm run-off.

The primary building is finished but the State Department is also constructing a heritage building on the site used by a Republic of Indonesia delegation during negotiations for Indonesia’s independence with the Dutch in 1949. It is estimated that the completion of that building as well as a consular pavilion will occur by the end of 2019.

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Secretary Mike Pompeo Swears-In New INR Assistant Secretary Ellen E. McCarthy

Assistant Secretary McCarthy Delivers Remarks at Her Swearing-in Ceremony Ellen E. McCarthy, Assistant Secretary of State for the Bureau of Intelligence and Research delivers remarks at her swearing-in ceremony at the U.S. Department of State in Washington, D.C., on March 15, 2019. [State Department photo by Michael Gross/ Public Domain]

State/CA Asst Secretary Carl Risch to Give Up Control of 50 Attorneys to the Legal Adviser?

Posted: 1:56 am EST

 

We understand that Assistant Secretary for Consular Affairs (CA) Carl Risch is reportedly “electing to give up control of 50 attorneys under his leadership” in the Consular Affairs bureau.

Give them up? CA has 50 attorneys? He is reportedly moving them to the Office of the Legal Adviser (L). 

“Guy has no idea how many of his requests will now go unanswered because legal adviser will be arbiter of what policies deserve attention. Major implications for immigration law at State.”

We’re not sure if this move covers just the Office of Legislation, Regulations and Advisory Assistance (CA/VO/L) or also includes the Office of Legal Affairs (CA/OCS/L).  If he gives them up, does CA stops funding them, so then he gets to write this move on his “savings” column? Or if he gives them up, does CA still pays for them but won’t be responsible for them? What does that give Consular Affairs? How does that impact Consular Affairs, and consular posts overseas who may need legal guidance/advisories? 

We’ve asked CA about this a week ago — about Mr. Risch’s justification for this move, and how this will this impact immigration law at State.  It looks like we have a hot/cold relationship with the CA dahrlings, sometimes they respond quickly, and sometimes they give us this glaring silent treatment for just asking questions.

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Nauert Withdraws, UN Ambassador Post Available Again, Hurry!

Posted: 12:30 am EST

 

We’re late on this but apparently, Heather Nauert who was publicly announced as nominee to be the next U.N. Ambassador has withdrawn herself from consideration citing “the past two months” as “grueling” for her family. Her statement released with the State Department announcement on February 16 says that “it is in the best interest” of her family to withdraw.

Bloomberg News says “Trump’s pick for UN ambassador had employed a nanny who was in US legally but didn’t have a US work permit.”

Wait. When was this nanny hired? The spokesperson job does not require senate confirmation but like almost all jobs at the State Department, it requires a security clearance. So are they saying that the nanny issue, if that was the issue, did not come up during her initial vetting when she first came to State two years ago?

MSM is also reporting that Ms. Nauert is not expected to return to her State Department jobs. Until her announced nomination, she was the department spokesperson, and for a while, she was also the Acting Under Secretary for Public Diplomacy and Public Affairs, after the Senate-confirmed “R” Steve Goldstein was fired with Rex Tillerson.  In August 2018, the State Department appointed career FSO Robert Palladino as deputy spokesperson. But to-date, no one has been announced to succeed her as spokesperson, and there’s not even an acting spokesperson.

In any case, the post of UN Ambassador is up for grabs again, and some names we’ve heard before, we are hearing once more.  The Apprentice UN Edition is now on, people! So exciting dammit, I nearly micturated!

A side note —

At times, though not always, the State spokesperson is also dual-hatted as the Assistant Secretary of State for Public Affairs. The assistant secretary position used to be Senate-confirmed but P.L. 112-116, the Presidential Appointment Efficiency and Streamlining Act of 2011 (signed into law August 10, 2012), removed the requirement for Senate confirmation of Assistant Secretaries of State for Public Affairs.

Anyone remember why this was done?

You should know that on February 5, Secretary Pompeo delegated to Assistant Secretary for Public Affairs Michelle Giuda the authorities of the Under Secretary of State for Public Diplomacy and Public Affairs (R). Her official title is “Senior Official for Public Diplomacy and Public Affairs and Assistant Secretary, Bureau of Public Affairs.

It appears that the State Department is just going with “senior official” now and no longer even make use of the “acting” title for officials.  It also appears that the State Department no longer adhere to the previous practice of only appointing Senate-confirmed officials in “acting” capacity (don’t remember senior officials as responsible for their bureaus prior to this administration). We should note that only one official at the “R” bureau has been confirmed by the Senate, that’s the Assistant Secretary for Educational and Cultural Affairs Marie Royce (and spouse of former HFAC chair Ed Royce).

Is this Pompeo’s version of Trump’s “I like acting. It gives me more flexibility.”

 

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