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Snapshot: Stop/Start Process For Hardship Pay For Employees Traveling Away From Post

Posted: 12:57 am ET

 

Via GAO:

Stop/Start Process For Hardship Pay (click on image for larger view)

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GAO Reviews @StateDept’s Hardship and Danger Pay Allowances

Posted: 4:21 am ET

 

Back in February 2015, we blogged about the State Department then considering changes to its danger pay allowance (see Danger Danger, Bang Bang — State Department Eyes Changes in Danger Pay). In September 2015, we updated that post as new danger pay designation came into effect (see New Danger Pay Differential Posts: See Gainers, Plus Losers Include One Post on Evacuation Status.)

More recently, the Government Accountability Office was asked by the House Oversight and Government Reform (HOGR) Committee to review the State Department’s administration of hardship and danger pay for its employees. The GAO report examines the following:

(1) State’s spending at overseas posts for hardship and danger pay in fiscal years 2011-2016
(2) the extent to which State has followed its process for determining hardship and danger pay rates at overseas posts
(3) the procedures State uses to implement its policies for stopping and starting hardship and danger pay when employees temporarily leave their assigned overseas posts
(4) the extent to which State has identified improper payments related to hardship and danger pay.

The GAO made the following conclusions:

  • State mostly followed the new processes it established in 2015 for determining hardship and danger pay rates and locations, in a few cases it awarded Director Points that increased hardship pay for posts without clearly explaining in its documentation how the conditions at these posts met State’s criteria. Without clearer documentation, State cannot provide assurances that it is applying Director Points consistently across posts and tenures of ALS Directors, potentially leading to increased spending on hardship pay not otherwise justified under State’s current process for determining rates.  (The report notes that 12 of the 15 memos did not clearly document how the posts met State’s criteria for awarding Director Points.  State approved hardship rates for these posts that were 5 percent higher than the rate they would have received in the absence of Director Points. State policies note that Director Points may be awarded for extreme conditions not adequately captured in State’s written standards).
  • State has not assessed the cost- effectiveness of its policies and procedures for stopping and starting hardship pay when employees temporarily leave their overseas posts. State officials noted that these policies and procedures are resource intensive to implement and contribute to improper payments, which are costly to recover. Without reviewing the cost-effectiveness of these policies and procedures, State does not know whether they are effective, efficient, and economical.
  • By not analyzing available data compiled by CGFS, State may be missing an opportunity to identify, recover, and prevent improper payments related to hardship pay with the potential to produce cost savings for the U.S. government. Our independent analysis of State data identified overseas posts accounting for millions of dollars in hardship spending in fiscal years 2015 and 2016 that may be at high risk for improper payments.

It also offers the following recommendations for the following offices:

Director of Allowance/ALS — should clearly document how the conditions at relevant posts meet the criteria for Director Points to ensure that hardship pay rates for overseas posts are consistently determined across posts and tenures of ALS Directors.

Undersecretary of Management — should assess the cost- effectiveness of State’s policies and procedures for stopping and starting hardship pay for employees who temporarily leave their assigned overseas posts. (Recommendation 2)

Department’s Comptroller/CGFS — should analyze available diplomatic cable data from overseas posts to identify posts at risk of improper payments for hardship pay, identify any improper payments, and take steps to recover and prevent them. (Recommendation 3)

Other details:

FOUR POSTS: The GAO conducted fieldwork at four posts that receive hardship or danger pay: Islamabad, Pakistan; Mexico City, Mexico; New Delhi, India; and Tunis, Tunisia.

THREE-QUARTERS OF FS WORKFORCE:  According to State data, about three-quarters of the department’s Foreign Service overseas work force, as of September 30, 2016, was based at a post designated for hardship pay.

HARDSHIP PAY: As of February 5, 2017, State offered hardship pay at 188 of its 273 overseas posts (about 69 percent).

DANGER PAY: As of February 5, 2017, State had provided danger pay at 25 of its 273 overseas posts (about 9 percent).

SIX POSTS: As of February 5, 2017, 21 overseas posts were eligible for both hardship and danger allowances, and 6 posts were receiving the maximum 70 percent combined rate for hardship and danger pay: Bangui, Central African Republic; Basrah, Iraq; Kabul, Afghanistan; Mogadishu, Somalia; Peshawar, Pakistan; and Tripoli, Libya.

AFGHANISTAN AND IRAQ: State spent about $138 million on hardship pay in Afghanistan and Iraq in fiscal years 2011 through 2016— about 19 percent of its total spending on hardship pay. State spent about $125 million on danger pay in these two countries over the same period, almost half of its worldwide danger pay spending.

1 BILLION (FY2011-2015) :  State spent about $1 billion for hardship and danger pay in fiscal years 2011 through 2016, including $732 million for State employees serving in locations designated for hardship pay and $266 million for employees serving in locations designated for danger pay.

STOP/START PAYMENTS: According to CGFS data, overseas posts sent diplomatic cables requiring CGFS to make more than 10,000 manual adjustments to temporarily stop and start employees’ hardship pay in both 2015 and 2016.

IMPROPER PAYMENTS: CGFS identified a total of about $2.9 million in improper payments for hardship and danger pay in fiscal years 2015 and 2016.  As of March 2017, CGFS had recovered almost $2.7 million, or about 92 percent, of the improper payments it identified in 2015 and 2016 related to hardship and danger pay. According to CGFS officials, the bureau was continuing efforts to recover the remaining 8 percent.

The full report is available to read here: GAO OVERSEAS ALLOWANCES 9-2017.
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@StateDept “Consolidates” Regulations for Official Communication Using Social Media

Posted: 3:19 am ET

 

We previously blogged about the use of social media in State Department official communication back in February (see @StateDept Issues Guidance For Official Communication Using Social Media, What’s Missing?). On August 24, the State Department updated its guidance for official communication using social media. “To engage on social media in an official capacity, personnel must use an account created specifically for official use that is separate from an account used for private, personal use.”  The guidance also notes that “all Department social media sites used for official public communications must be registered by visiting the Social Media Account Registry on Diplopedia.”  The change transmittal notes that this change “consolidates regulations concerning social media for official public diplomacy and public affairs purposes.”

Per Foreign Affairs Manual 10 FAM 180:

a. Senior officials and other employees whose positions make it appropriate for them to engage in official communications on behalf of the Department over social media (“Department social media spokespersons”) must not use personal social media accounts to do so.  They must use official social media accounts, created and owned by the Department.

(1)  Department social media spokespersons must be instructed before they begin their positions that they will not be able to use their personal social media accounts for official communications, and that content on personal social media accounts must comply with 3 FAM 4176.  Forwarding, linking to, or otherwise reposting official content on a personal social media account will not ordinarily constitute official communications if the content was first released on an official platform, provided that it is clear from the circumstances that the personal social media account is not being used to communicate on behalf of the Department.

(2)  When Department social media spokespersons begin their positions, they are provided access to official social media accounts, and they will lose access to those accounts when they leave that position.  Whenever possible, the same account is passed from one incumbent in a position to the next.  As such, account names include only the office or position (e.g., @USEmbConsularManila, @USAmbManila); they do not include personal names.

(3)  Missions, bureaus, or offices must maintain a list of their authorized official social media accounts and the credentials for those accounts.  Accounts are created in accordance with 5 FAM 793.

b. In order to put a “human face” on the Department’s social media presence, Department social media spokespersons are authorized, but not required, to post certain kinds of personal content to their official accounts (e.g., posts about family news, pictures of pets, discussions of hobbies).  This personal content may be considered official communications and must comply with, among other things, restrictions on partisan political activities, endorsements of commercial goods or services, fundraising and solicitations, official actions affecting financial interests, and the publication of information that could compromise the security of the individual or others.  See 3 FAM 4175.2, Content of Official Capacity Public Communications, for additional guidance on content of official communications.

c.  All accounts that have been used for official communications are considered Department accounts, and are either retained by the Department for use by the next incumbent or retired in accordance with applicable records disposition schedules, as appropriate.  The content of such accounts is also retired in accordance with applicable records disposition schedules.

The new guidance also include a section on impersonations on social media; the regs make a distinction with parody accounts (good news Rexxon Drillerson (@RexxonDrill), but have the 10 FAM 184 handy).

a. Impersonations, or the creation of an account that is intended to be mistaken for another account, are not permitted on most major U.S.-based social media platforms, including Facebook and Twitter.  International Information Programs’ (IIP’s) Digital Support and Training Division is responsible for coordinating with U.S.-based third-party social media platforms to assist Department personnel in addressing situations where sites or accounts are impersonating official U.S. Government sites or accounts, including seeking removal of imposter accounts in an expedited manner.  Impersonation accounts are not the same as parody accounts.  Parody accounts pretend to be another account but for humor, satire, or other reasons that rely upon the viewer’s ability to tell that the account is not real, and they are generally permitted under platforms’ Terms of Service.

b. If you determine that there is an impersonation account on Facebook, you must file a ticket with Facebook and then email IIP’s Digital Support and Training Division at IIPSMS@state.gov with relevant details for documentation so that the ticket may be elevated with Facebook.

c.  If you determine that there is an impersonation account on Twitter, you must report the imposter to Twitter using this form and forward the autoreply email from Twitter, including the ticket number, to IIPSMS@state.gov to expedite the removal process with Twitter.

d. If you determine there is an impersonation account on another platform, you must follow that platform’s reporting guidelines and notify IIPSMS@state.gov.

e. You must not interact with or acknowledge the impersonator to avoid encouraging further activity.

What this consolidated guidance still does not include is what happens when “senior officials and other employees”, both career and political appointees do not comply with 10 FAM 180.  What if they refuse to switch from a personal account to an official account? Who will compel them?  And if State can’t compel them, how do you archive official communication from their personal social media account?

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All U.S. Passports Invalid for Travel to North Korea Without Special Validation Effective 9/1/17

Posted: 11:37 am PT

 

On July 21, the Department of State declared that all U.S. passports are invalid for travel to the Democratic People’s Republic of Korea (North Korea) unless the travel meets certain criteria.

The Department of State has determined that the serious risk to United States nationals of arrest and long-term detention represents imminent danger to the physical safety of United States nationals traveling to and within the Democratic People’s Republic of Korea (DPRK), within the meaning of 22 CFR 51.63(a)(3). Therefore, pursuant to the authority of 22 U.S.C. 211a and Executive Order 11295 (31 FR 10603), and in accordance with 22 CFR 51.63(a)(3), all United States passports are declared invalid for travel to, in, or through the DPRK unless specially validated for such travel, as specified at 22 CFR 51.64. The restriction on travel to the DPRK shall be effective 30 days after publication of this Notice, and shall remain in effect for one year unless extended or sooner revoked by the Secretary of State.

The notice was published in the Federal Register on August 2, 2017.

photo from travel.state.gov

Per 22 CFR 51.63 Passports invalid for travel into or through restricted areas; 

(a) The Secretary may restrict the use of a passport for travel to or use in a country or area which the Secretary has determined is:

(1) A country with which the United States is at war; or

(2) A country or area where armed hostilities are in progress; or

(3) A country or area in which there is imminent danger to the public health or physical safety of United States travelers.

(b) Any determination made and restriction imposed under paragraph

(a) of this section, or any extension or revocation of the restriction, shall be published in the Federal Register.

Per 22 CFR 51.64 Special validation of passports for travel to restricted areas.

(a) A U.S. national may apply to the Department for a special validation of his or passport to permit its use for travel to, or use in, a restricted country or area. The application must be accompanied by evidence that the applicant falls within one of the categories in paragraph (c) of this section.

(b) The Department may grant a special validation if it determines that the validation is in the national interest of the United States.

(c) A special validation may be determined to be in the national interest if:

(1) The applicant is a professional reporter or journalist, the purpose of whose trip is to obtain, and make available to the public, information about the restricted area; or

(2) The applicant is a representative of the International Committee of the Red Cross or the American Red Cross traveling pursuant to an officially-sponsored Red Cross mission; or

(3) The applicant’s trip is justified by compelling humanitarian considerations; or

(4) The applicant’s request is otherwise in the national interest.

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Bureau of Diplomatic Security’s “Naughty List” — What’s That All About?

Posted: 3:48 am ET

 

On August 8, we blogged about a woman who reported that she was raped and stalked by a supervisory Diplomatic Security agent assigned to one of the bureau’s field offices in the United States. The blogpost includes the State Department recently issued guidance on sexual assaults covering personnel and facilities in the United States (See A Woman Reported to Diplomatic Security That She Was Raped and Stalked by a DS Agent, So What Happened?).

We have since been been told that if we keep digging, we will “find much more” and that we should be looking for the “Naughty List” also known as the Adverse Action list.

When we asked what kind of numbers we’re talking about, we were informed that “the numbers are enough to say this is a systemic issue within the department.”  In the course of looking into this one case, we discovered a second case similar to the one we blogged about last week.  But the allegation was related to a different employee.

We’ve asked Diplomatic Security about the List but to-date we have not heard anything back.  We have two sources who confirmed the existence of the list.

What is the “Naught List”?

The list is formally called the Adverse Action list. We understand that this is a list of Diplomatic Security employees who are under investigation or declared “unfit for duty“.  Among the allegations we’ve got so far:

  • Investigations where agents were not disciplined but suspected of similar offenses
  • Investigations that languished on somebody’s desk for a decision
  • Agents curtail from post due to their “inappropriate behavior” and then just get reassigned somewhere else to become someone else’s problem (or nightmare if you are the victim).
  • Most agents are sent back to work with a slap on the wrist, regardless of how egregious the allegation against them were.
  • That this blog is only aware of two cases while “there are many more than that that exists.”
  • The system is highly flawed when you have coworkers/buddies investigating you.
  • That the Sexual Assault Policy is all smoke and mirrors without a mechanism to ensure the alleged perpetrator does not reoffend by discipline, removal, or treatment once its been established that the allegation has merit.

We’ve seen this movie before, haven’t we?

In October 2014, State/OIG published its Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security.  That report includes a case where the OIG found an appearance of undue influence and favoritism concerning a DS Regional Security Officer (RSO) posted overseas, who, in 2011, allegedly engaged in sexual misconduct and harassment.  DS commenced an internal investigation of those allegations in September 2011.  The report notes that at the time the investigation began, the RSO already had a long history of similar misconduct allegations dating back 10 years at seven other posts where he worked.

The report also notes that “notwithstanding the serious nature of the alleged misconduct, the Department never attempted to remove the RSO from Department work environments where the RSO could potentially harm other employees, an option available under the FAM.”  The OIG reports that in November 2013, based on evidence collected by DS and the Department’s Office of Civil Rights, the Department commenced termination of employment proceedings against the RSO. The RSO’s employment in the Department did not end until mid-2014, approximately 3 years after DS initially learned of the 2011 allegations.

Now three years after that employee’s departure, and six years after that 2011 allegations, here we are once again. Similar cases, different characters.

The questions we’ve been asked

Of which we have no answer — but we’re hoping that Diplomatic Security or the State Department would be asked by congressional overseers — are as follows:

√ Why would DS want to keep an agent or agents on that reflects so poorly on the Agency? Does DS not find this to be a liability?

√ Is Diplomatic Security (DS) prepared to deal with the aftermath if this agent continues to commit the same offenses that he has allegedly been accused of, especially if there is a track record for this agent?

√ There is an internal group that meets monthly to discuss these cases; they include representatives from at least six offices across bureaus, so what happened to these cases? Why are these actions tolerated?

√ If DS is so proactive based on its new Sexual Assault Policy, why are they not seeking a quicker timeline from investigation to discipline, to demonstrate to alleged victims that the agency does indeed take these allegations seriously?

We have to add a few questions of our own. Why do DS agents continue to investigate misconduct of other DS agents that they will likely serve with in the future, or that they may rely on for future assignments?

According to the Spring 2017 Report to Congress, the Bureau of Diplomatic Security (DS) has limited and continues to limit OIG’s permanent worldwide access to specific DS systems that OIG requires to conduct its oversight activities. Why? (see @StateDept Now Required to Report Allegations and Investigations to OIG Within 5 Days).

What are we going to see when we (or other reporters) FOIA this “Naughty List”?

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A Woman Reported to Diplomatic Security That She Was Raped and Stalked by a DS Agent, So What Happened?

Posted: 2:26 am ET

 

We recently received information from an individual who asserted that she was raped and stalked by a supervisory Diplomatic Security agent assigned to one of Diplomatic Security’s eight field locations in the United States.  She said that was interviewed by Diplomatic Security’s  Office of Special Investigations (DS/DO/OSI) in November 2014. She also said that she provided a Victim Impact Statement to DS/OSI in December 2015. The investigation reportedly concluded in February 2016 with no disciplinary action. She informed us that during one telephonic conversations with a Supervisory Special Agent, she felt pressured to say that “I was pleased with the DoS handling of this case.” She presumed that the call was recorded and refused to say it.  She cited another case that was reported around the same time her case was investigated in 2014.  She believed that there were multiple police reports for the employee involving different women for similar complaints.

We’ve asked the Bureau of Diplomatic Security for comments about this case, and whether this was reported to the Office of Inspector General. To-date, we have not received an acknowledgment to our inquiry nor a response to our questions despite ample time to do so.

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On the subject of sexual assaults, on July 27, 2017, the State Department issued a new Foreign Affairs Manual subchapter 3 FAM 1750 on sexual assaults involving personnel and facilities in the United States. (For sexual assault involving chief-of-mission personnel and facilities outside of the United States see 3 FAM 1710).

3 FAM 1750:  “… The Department of State is determined to do all it can to prevent sexual assault from being committed by, or against, its personnel and it is committed to effectively and sensitively responding to personnel who have been sexually assaulted, ensuring that they are treated with care and respect.  The policies and procedures in this section define the Department’s goals of effectively preventing and addressing sexual assaults; the actions it will take in response to allegations of sexual assault; and the approach it will use in holding those Department personnel who commit sexual assault accountable for their actions.  The language used in this FAM, by necessity, must be technical, comport with and relate to relevant laws, and be administratively sound.  That said, the legal terminology, including the term “victim,” contained herein should not eclipse the compassion and urgency that underlie the Department’s commitment to this issue.”

The new regs notes that “sexual assaults that occur within the United States generally fall under the jurisdiction of the State or locality where the assault occurred.  Personnel who are victims of sexual assault are not under any obligation to report the assault to the Department.”

This new policy applies to:

(1)  All Department employees in the United States;

(2)  Persons under personal-services contracts (PSCs) or personal-services agreements (PSAs) in the United States;

(3)  Other individuals, such as third-party contractors, student volunteers (interns) and nonemployee fellows, and other personnel (e.g., subcontractors) in the United States who provide services to the State Department when the allegation involves conduct that occurs on duty, or is associated with the individual’s position within the Department; and

(4)  Any sexual assault that occurs at any Department facility within the United States.

The victims described above may also reach out to:

(a)  Diplomatic Security’s Office of Special Investigations (DS/DO/OSI) via telephone at 571-345-3146 or via email at DS-OSIDutyAgent@state.gov.  The DS/DO/OSI duty agents are available 24 hours a day, 7 days a week;

(b)  Employee Consultation Services (ECS) by email:  MEDECS@state.gov or by telephone at 703-812-2257; and

(c)  A sexual-assault crisis center.

The regs says that “personnel who are victims of sexual assault are not/not under any obligation to report the assault to the Department.”  The Department, however, “strongly encourages” anyone who knows or suspects or is aware of a sexual assault covered by 3 FAM 1750 to immediately report allegations of sexual assault to:

(1)  DS/DO/OSI via email DS-OSIDutyAgent@state.gov or via phone through the DS Command Center at 571-345-3146; or

(2)  S/OCR or via phone at 202-647-9295 (WHY?)

(3)  MED personnel will not share protected health information except in accordance with the Notice of Privacy Practices or with the written consent of the patient.  Individuals may obtain a copy of the MED Notice of Privacy Practices from the health unit or MED intranet page.

(4) Except as required by law, non-MED personnel will only disclose information about sexual assaults to other Department officers and employees on a need-to-know basis, including to the Office of Inspector General (OIG) in accordance with 22 U.S.C. 3929, and to other Federal and local agencies, in accordance with the Privacy Act.

3 FAM 1750 says that Department personnel detailed to another agency may reach out to the Washington, DC-based Bureau of Medical Services (MED) duty officer at 202-262-9013 or through the Operations Center at 202-647-1512 for medical guidance, and to DS/DO/OSI for law enforcement guidance.

A few thoughts on this:

#1.  We understand the caveats on information sharing with medical, and non-medical personnel included in this subchapter  but we don’t think this is enough to assuage the privacy concerns of victims.

#2. DOD has restricted (confidential) and unrestricted reporting for victims. That means the adult sexual assault victim can access healthcare, advocacy services, and legal services without triggering notification to command or law enforcement (restricted). Under Unrestricted Reporting, both the command and law enforcement are notified. Even then, fewer than 1 in 5 victims openly reported their sexual assault. 3,678 service members reported the incident to law enforcement, out of a total 20,000 survivors.

#3. S/OCR handles equal employment opportunity issues including sexual harassment, why should sexual assault victims report sexual assault or sexual assault allegations there? 3 FAM 1711.2 defines sexual assault as any type of sexual contact that occurs without the explicit consent of the recipient.It also says that sexual assault is a form of sexual harassment. Sexual assault is a crime, it cannot be resolved through mediation, grievance, or the EEO processes. Also does anyone know how many people at S/OCR are trained to actually handle sexual assault cases?

The U.S. Marines publication make the distinction between sexual harassment and sexual assault here (PDF). It defines sexual harassment as a form of sex discrimination that involves unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature. It defines sexual assault as intentional sexual contact, characterized by use of force, threats, intimidation, abuse of authority or when a victim cannot or does not consent.  And this one is important, “A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent.”  

The U.S. Coast Guard says that the real distinction between sexual harassment and sexual assault is sexual harassment’s connection to the victim’s employment and/or work performance, which is why sexual harassment is a civil rights issue. It points out that sexual assault is a crime against another person. However, unlike sexual harassment, it has nothing to do with their employment and/or work performance, it is a criminal assault, of a sexual nature, against another person.

The State Department guidance does not/not make such distinctions.

#4.  States all address the crime of sexual assault, with some adding specific categories of victims, defenses, and penalties. See more here: http://statelaws.findlaw.com/criminal-laws/sexual-assault.html.

RAINN also has a search tool for independent sexual assault service providers, including National Sexual Assault Hotline affiliate organizations and other local providers here.

 

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@StateDept Dismisses EEO Complaint For Following Wabbit Into a Hole, EEOC Reverses

Posted: 1:45 am ET

 

Here is an EEO case with a reminder that the Commission has previously held that an agency may not dismiss a complaint based on a complainant’s untimeliness, if that untimeliness is caused by the agency’s action in misleading or misinforming complainant.

Quick summary of case via eeoc.gov:

At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency’s Department of State facility in Washington, DC. Complainant contacted an EEO Counselor alleging that she was subjected to discrimination and a hostile work environment. When the matter was not resolved informally, the EEO Counselor emailed Complainant a Notice of Right to File (“NRF”), which Complainant received and signed on January 25, 2017. However, in that same email, the EEO Counselor conflated the EEO filing requirements, misinforming Complaisant that she had to file her signed NRF, rather than her formal complaint, within 15 days. On that same date, Complainant attempted to file her signed NRF with her EEO Counselor, who informed Complainant that the signed NRF had to be filed with the Agency’s Office of Civil Rights, and that filing the signed NRF with that office would initiate the formal EEO complaint process.

Complainant filed her signed NRF, rather than a formal complaint, to the Office of Civil Rights on January 25, 2017, and the Office of Civil Rights confirmed its receipt on January 27, 2017. Complainant therefore filed her signed NRF within the 15-day period that she was supposed to file her formal complaint. However, it was not until February 21, 2017, which was beyond the 15-day filing period, when the Office of Civil Rights informed Complainant that she had submitted the wrong form to initiate the formal EEO process, and that Complainant needed to file a formal complaint rather than her signed NRF.

On March 6, 2017, which was within 15 days of being informed that she had filed the wrong form, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On 10/11/2016, she was denied the ability to telework;
2. On 11/10/2016, she was subjected to an environment of uncertainty and arbitrary decision making regarding her accommodation requests; and
3. She was subjected to a hostile working environment characterized by repeated acts of disparate treatment, unpleasant social interactions with management, and retracted support for locally negotiated reasonable accommodations.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failing to file her formal complaint within 15 days of receiving her Notice of Right to File.

On appeal, Complainant contends that the Agency’s dismissal of her complaint should be reversed because her EEO Counselor mistakenly advised her to file her signed NRF, rather than a formal complaint, within 15 days of receiving her NRF, causing her to miss the filing period for her formal complaint.

The decision notes the following:

EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e) or (f).

On June 28, 2017, the EEOC reversed the State Department’s decision to dismiss the complaint and remanded the case to the agency for further processing in accordance with its order as follows:

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request.

Compliance with the Commission’s corrective action is mandatory. Read the full decision here.

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@StateDept Suspends Its Visa Interview Waiver Program (IWP) Under E.O. 13780 #Brazil #Argentina

Posted: 4:24 am ET

 

On July 27, the State Department issued a redacted guidance citing changes from ALDAC 17 State 77174 on Interview Waivers. The new guidance reflects the suspension of the Interview Waiver Program (IWP) under Executive Order 13780 (E.O.). The suspension of the Interview Waiver Program (IWP) means that more visa applicants will require personal interviews.

Note that the State Department’s current hiring freeze remains in effect and includes Family Member Appointment (FMA) or Temporary Appointment jobs (also see Out in the Cold: How the Hiring Freeze Hiring Freeze is Affecting Family Member Employment). We are not quite at the end of the summer travel season so we can expect that that the visa wait time will start creeping up again.  Visa wait times for USCG Guangzhou is 13 days, US Embassy New Delhi is now 15 days, USCG Chengdu is 6-11 days, US Embassy Manila is 10-19 days, and US Embassy Havana is 21 days.  Appointment wait time for visitor visas at US Embassy Caracas is 999 days. Wait times can potentially get even worse next year with State projected to shrink by 2300 personnel, and if the hiring freeze is not lifted until the reorganization is concluded.

9 FAM 403.5 says that “Every alien seeking an NIV must apply in person and be interviewed by a consular officer unless a specific exception allows for waiver of the interview requirement.”

FAM 403.5-2  (U) INTERVIEW REQUIREMENT
(CT:VISA-415;   07-27-2017)

a. Unavailable   

b. (U) Every alien seeking an NIV must apply in person and be interviewed by a consular officer unless a specific exception allows for waiver of the interview requirement.

c.  Unavailable  

(1)  (U) Generally, all applicants who are at least 14 years of age and not more than 79 must be interviewed in person.

(2)  (U) The circumstances in which the consular officer may waive an interview for a nonimmigrant applicant are limited to the categories set out in section 222(h)(1)(A) and (B) of the INA.  See 9 FAM 403.5-4(A).  

(3)  (U) If you receive a compelling case that does not qualify for an interview waiver under one of these categories, but where an interview waiver appears warranted, you may forward a recommendation for waiver through your VO/F post liaison.

(4)  (U) If admissibility issues or national security concerns arise in the visa application process for applicants for whom the interview requirement has been waived, or for applicants under 14 and over 79, you must conduct a personal interview of the applicant.

d. (U) If none of the grounds in 9 FAM 403.5-4(B) below that mandate an in-person interview apply, any applicant (first-time or renewal) who is:

(1)  (U) Under 14 years of age; or

(2)  (U) Over 79 years of age

    is exempt from the requirement of a visa interview.

The “grounds” and “interview waiver criteria” under 9 FAM 403.5-4(B) only contains the following passage:

Eligibility for interview waiver does not automatically entitle any applicant to a waiver of the interview requirement.  You must interview any and all interview waiver-eligible applicants who you believe should be interviewed to more fully assess their eligibility or intentions, or those whom you are concerned may be from high-threat or high-fraud areas.  Review all source information and liaise with other agencies at post to remain aware of changing threat information. 

9 FAM 403.5-4(A)(1)  (U) Interview Waiver Categories
(CT:VISA-415;   07-27-2017)

a. (U) Waiver by Consular Officers:  

(U) You may waive the interview of any visa applicant who falls under one or more of the following categories  in (1)-(3) below and who satisfies the requirements of 9 FAM 403.5-4(B):

(1)  (U) Is within a class of nonimmigrants classifiable under the visa symbols A-1, A-2, C-2, C-3 (except attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6, or TECRO E-1 and who is seeking a visa in such classification;

(2)  (U) Is an applicant for a diplomatic or official visa as described in 22 CFR 41.26 or 22 CFR 41.27, respectively.

(3)  (U) Renewals in the same category within 12 months:

(a)  (U) Is applying for the same nonimmigrant visa classification not more than 12 months after the date on which the prior visa expired  (i.e., same visa class and same category (principal or derivative)); and

(b)  (U) Is applying in the consular district of his or her normal residence, unless otherwise prescribed in regulations that require an applicant to apply for a visa in the country of which such applicant is a national.

(i)      (U) For example, a B1/B2, L, or R visa holder who is seeking to renew his/her visa in the same category within 12 months of his/her last visa’s expiration date within the consular district of his/her normal residence qualifies for interview waiver for Renewals;

(ii)    (U) On the other hand, an H-1B visa holder applying for an L-1 visa, an E-2 spouse applying for a visa as an E-2 principal, or an F-2 visa holder applying for an F-1 visa all would need to appear for an interview.

(iii)    (U) The  adjudication may take place outside the 12-month window, as long as the application is made within12 months of the previous visa’s expiration date. The criteria for making an application are defined in 9 FAM 403.2

(c)   Special considerations for applications to renew Student and Exchange Visitor visas:

(i)     (U) Students (F and M applicants) are eligible for interview waiver , provided the applicant is re-applying to renew the same visa classification not more than 12 months after the date on which the prior visa expired and provided the applicant is renewing his or her visa either to: (a) continue participation in the same major course of study even if at a different institution; or (b) attend the same institution even if in a different major course of study.

(ii)    (U) Exchange visitor visas (i.e., J visas) may only be renewed  without an interview if the exchange visitor will continue participation in the same exchange visitor program, with the same Student and Exchange Visitor Information System (SEVIS) number from the previously issued visa.

(iii)    (U) You must verify that the applicant’s SEVIS record indicates a SEVIS status of “initial” or “active,” and should request an interview if you identify any discrepancies between the current and previous visa applications, or wish to interview the applicant for any other reason.

b.  (U) Waiver by Deputy Assistant Secretary for Visa Services  In unusual or emergent circumstances the Deputy Assistant Secretary for Visa Services may waive the interview requirement in individual cases after determining that such a waiver is necessary as a result of unusual or emergent circumstances.  If you believe waiver of the interview is necessary due to unusual or emergent circumstances, contact your VO/F post liaison

c.  (U) Waiver by the Secretary in individual cases when in the national interest: The Secretary of State may waive the interview requirement in individual cases after determining that such a waiver is in the national interest of the United States.  If you believe waiver of the interview would be in the national interest of the United States, but that applicant does not qualify for any other aforementioned waiver categories, contact your VO/F post liaison.

The new guidance also removed the IWP for Brazilian and Argentine applicants.

9 FAM 403.5-4(A)(3)  (U) Discontinued Interview Waiver Program Categories
(CT:VISA-415;   07-27-2017)

Effective immediately, posts must require an interview for the following categories of individuals that had previously been covered by the IWP (unless the applicant also falls in an interview waiver category described in 9 FAM 403.5-4(A)(1)):

  • (1)  (U) Any applicant whose visa expired more than 12 months, and not more than 48 months, prior to the date of application;
  • (2)  (U) Any first-time Brazilian applicant aged 14 or 15 or between 66 and 79;
  • (3)  (U) Any first-time Argentine applicant aged 14 or 15 or between 66 and 79.

 

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