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U.S. to Invoke Visa Sanctions For Four Countries Unwilling to Accept Deported Nationals

Posted: 3:25 am ET

 

We previously blogged about visa sanctions in early 2017 for countries who refused to accept their deported nationals (see On Invocation of Visa Sanctions For Countries Unwilling to Accept Their Deported Nationals. Also read @StateDept Notifies Foreign Countries of New Information Sharing Standards Required For U.S. Travel.

Note that the Trump Executive Order: Enhancing Public Safety in the Interior of the United States include section 12 on countries who refused to accepted their nationals who are subject to removal by the United States:

Sec. 12.  Recalcitrant Countries.  The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate.  The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.

The Washington Times reported yesterday that the Trump administration has now triggered visa sanctions against four countries that have refused to take back citizens the U.S. is trying to deport. The State Department confirmed the move according to the reporter but declined to name the specific countries.  The Washington Times citing “sources who tracked the deliberations in recent weeks” said that the four countries are Cambodia, Eritrea, Guinea and Sierra Leone.

via travel.state.gov

 

Per 9 FAM. only one country, The Gambia, is currently subject to discontinuation of visa issuance under INA 243(d).  With these additional four countries, this could be the start of utilizing visa sanctions to force countries to accept their deported nationals.  There are potentially 85 countries that could be subject to a visa sanction based on their refusal or lack or cooperation in accepting their own nationals deported from the United States.

According to DHS, as of May 2, 2016, ICE has found that there were 23 countries considered recalcitrant, including: Afghanistan, Algeria, the People’s Republic of China, Cuba, Iran, Iraq, Libya, Somalia, and Zimbabwe.  DHS does not appear to have an updated public list or a full list online. In a July 2016 testimony, DHS also told Congress that within the last two fiscal years ICE has worked with the State Department to issue 17 Demarches to the following recalcitrant countries: Iraq, Algeria, Bangladesh, Cape Verde, Ivory Coast, Eritrea, The Gambia, Ghana, Guinea, Liberia, Mali, Mauritania, Niger, Sierra Leone, Senegal, Cuba and St. Lucia.

DHS noted in 2016 that ICE was closely monitoring an additional 62 countries with strained cooperation, but which were not deemed recalcitrant.

We expect that the State Department will make a formal statement as it updates its guidance to its consular officials. The FAM guidance also says that a Public Notice of Discontinuation of Visa Issuance may be provided by flyers posted in the consular section and/or on the post’s website:  

During the period of discontinuation, posts should continue receiving and adjudicating cases; however, posts should explain the discontinuation of visas to all applicants covered by the order.  The explanation should note that visas cannot generally be issued for certain visa classifications or categories of applicants as determined by the Secretary’s order, and explain that visa fees will not be refunded, but that the cases will be reviewed again once visa issuance resumes.  The notification may be provided by flyers posted in the consular section and/or on the post’s website.”

Note that INA 243(d) discontinuation of visa issuance pertains to the actual issuance, not to adjudication. That means consular sections will continue to charge visa fees, will continue to adjudicate visa applications, but they will suspend issuance of visas to qualified applicants. And there will be no refunds.  That sounds like a recipe for a PR disaster.

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U.S. Mission Russia to Suspend Nonimmigrant Visa Operations Starting August 23

Posted: 2:06 am ET

 

On August 21, U.S. Mission Russia announced that it is suspending nonimmigrant visa operations across Russia effective Wednesday, August 23.

As a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa (NIV) operations across Russia will be suspended beginning August 23, 2017.  Visa operations will resume on a greatly reduced scale.  Beginning September 1, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow.  NIV interviews at the U.S. Consulates in St. Petersburg, Yekaterinburg, and Vladivostok are suspended until further notice.  As of 0900 Moscow time Monday, August 21, the U.S. Mission will begin canceling current nonimmigrant visa appointments countrywide.  The NIV applicants who have their interviews canceled should call the number below to reschedule their interview at the U.S. Embassy in Moscow for a later date.  NIV applicants originally scheduled for an interview at the U.S. consulates in St. Petersburg, Yekaterinburg, and Vladivostok should call the number below if they wish to reschedule their interviews at the U.S. Embassy in Moscow.

The staffing changes will also affect the scheduling of some immigrant visa applicants.  Affected applicants will be contacted if there is a change as to the time and date of their interview.

The U.S. Embassy in Moscow and three consulates will continue to provide emergency and routine services to American citizens, although hours may change.  (For American Citizen Services hours, please check the U.S. Mission to Russia website at https://ru.usembassy.gov/u-s-citizen-services/acs-hours.)

US Mission Russia released a Fact Sheet also noting that the cancellation of visa interviews prior to September 1 is due to “planning for departures and staff reductions” that has already begun “in order to meet the Russian government’s September 1 deadline for the reduction of personnel.” It further notes that operation at reduced capacity will continue as long as its mission staffing levels are reduced.

As of August 21, the appointment visa wait times for U.S. Mission Russia for visitor visas are as follows: Moscow (85 calendar days), St. Pete (44 days), Vladivostok (2 days) and Yekaterinburg (59 days). When visa interviews resume at the US Embassy in Moscow on September 1, all visa interviews at the three constituents posts will remain suspended.

Foreign Minister Sergey Lavrov (via TASS) said that “the US authors of these decisions have plotted another attempt at stirring up resentment among Russian citizens regarding decisions by the Russian authorities.”

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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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Sen. Menendez Asks the Consular Affairs Nominee the Questions Y’All Wanna Ask

Posted: 1:26 pm PT

 

The Trump nominee to be Assistant Secretary of State for Consular Affairs appeared before the Senate Foreign Relations Committee yesterday (see July 18 SFRC Hearing: Carl Risch to be Assistant Secretary for Consular Affairs). There were four nominees during the hour and a half hearing chaired by Senator Ron Johnson, so basically 22.5 minutes for each nominee although the CT and CA nominees got most of the more substantial questions.

(click image to see the video)

Senator Robert Menendez (D-NJ) reminded Mr. Risch of his old congressional testimony advocating for the transfer of visa function to DHS in 2002 (see Ex-FSO Who Once Advocated Moving Visas to DHS May be the Next Asst Secretary For Consular Affairs). The exchange between Menendez and Risch starts at 00:45:50 via C-SPAN video here.

Senator Menendez started by congratulating all the nominees then quoted from Mr. Risch’s old testimony: “Congratulations to all of you. Mr. Risch in 2007 you appeared before the House Subcommittee on Government Reform. In a hearing, you said during my tenure as unit chief I adjudicated approximately 25,000 visa applications. I resigned in May of 2002 even though I received top evaluation and a challenging assignment. While I longed to return to my private practice, I was discouraged by the State Department’s lack of dedication to the enforcement of laws. I took my job very seriously. The State Department did not.”

Senator Menendez then asked: “Do you believe the State Department isn’t  committed to rule of law and national security of the United States?”

Mr. Risch’s response:

“Thank you senator, for the question and for the opportunity to address that testimony. The testimony was in 2002, not in 2007. It was 15 years ago that that testimony took place. It was during the time that the Department of Homeland Security was just being stood up. I believe a lot has changed at the State Department in 15 years. I’m enthusiastic about the future the way the bureau will be fulfilling its function with interagency cooperation, continuous vetting.”

Senator Menendez did not let him off the hook and asked again, “Do you believe the State Department is committed to the rule of law and the national security of the United States?”

Mr. Risch responded, Currently senator, I absolutely do.”

The NJ senator started talking about refugee and migration issues then asked Mr. Risch, “So do you believe that the Department of Homeland Security, which is notoriously bloated with a whole host of dysfunctional components, should be responsible still to have the visa, the very essence of the department you’re being nominated to, to be transferred to the Department of Homeland Security?”

Mr. Risch’s response:

“Well, 15 years ago, senator, I stand behind my testimony. It was a completely different time. And there were a lot of talk about consolidating different things into the Department of Homeland Security. Currently, I watched the Deputy Secretary testify yesterday that it’s currently not the intent of the Department of State —”

This is in reference to Deputy Secretary Sullivan’s testimony from Monday, at the same panel, about State not having an intention to transfer the consular function to DHS.  Senator Menendez cut him off saying “I’m not asking what their intent, I’m asking your view. You’re nominated for this position.”

This is Mr. Risch’s response:

“My view is I would … I follow the leadership of Department of State if confirmed. But as of today, I intend to lead the Bureau of Consular Affairs as it is currently formed. I believe that I will be, if confirmed a strong leader of all functions of the consular bureau including the visa function.” 

 

 

 

There’s something about Mr. Risch’s response that’s not very comforting to our ears. You, too? Maybe it’s the use of the word “currently” as “at the present time,” as in “now.” Maybe, that’s just his favorite word. Maybe it indicates that he does not have a solid view about a U.S. Government agency’s commitment to the rule of law and national security of this country.

To the question about his belief whether the State Department is committed to the rule of law and national security of the United States, Mr. Risch responded with “I absolutely do,” but he prefaced that response with “currently.” He used the same word when talking about the intent of the State Department, and in describing the bureau he is nominated to lead.

The use of the word “currently” implies that things might change. Does he know something we don’t? What he believes now, may not be what he believes next month, or next year. If the White House decides to move the visa function to DHS, and the State Department’s intent changes, Mr. Risch will “follow the leadership” at State. Then he will be back in the Senate to explain, “Currently, the State Department believe it is best to …”

For what it’s worth, we asked somebody who previously worked with Mr. Risch at an overseas post and the one feedback we got though brief was complimentary.

Mr. Risch’s prepared testimony is available here (pdf).

If confirmed, Mr. Risch would succeed career diplomat Michele Thoren Bond who served as Assistant Secretary for Consular Affairs from 2015-2017.

Below is a brief summary of the position and the previous appointees to this office via history.state.gov:

Assistant Secretaries of State for Consular Affairs

The Immigration and Nationality Act of 1952 (Jun 27, 1952; P.L. 82-414; 66 Stat. 174) established within the Department of State a Bureau of Security and Consular Affairs, headed by an Administrator with rank equal to that of an Assistant Secretary. From Mar 1 to Dec 30, 1954, the Bureau was renamed “Inspection, Security, and Consular Affairs.” From 1953 to 1962, the Secretary of State designated incumbents to this position. The Migration and Refugee Assistance Act of 1962 (Jun 28, 1962; P.L. 87-510; 76 Stat. 123) made the Administrator a Presidential appointee subject to the advice and consent of the Senate. In 1962, the Department transferred the security function to the Deputy Under Secretary for Administration, but the title remained unchanged until 1977, when the Foreign Relations Authorization Act for Fiscal Year 1978 (Aug 17, 1977; P.L. 95-105; 91 Stat. 847) changed the Administrator’s title to “Assistant Secretary of State for Consular Affairs.” This title has been given in full in all subsequent commissions to this office.

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@StateDept Publishes Global Magnitsky Human Rights Accountability Act Report

Posted: 4:41 am ET

 

The State Department published the Global Magnitsky Human Rights Accountability Act Report on June 20. The Act enacted on December 23, 2016, authorizes the President to impose financial sanctions and visa restrictions on foreign persons in response to certain human rights violations and acts of corruption.

According to the notice, the President approved the report on April 21, 2017.  The report required per Pub. L. 114-328, Subtitle F details (1) U.S. government actions to administer the Act and (2) efforts to encourage the governments of other countries to impose sanctions that are similar to the sanctions authorized by Section 1263 of the Act.

Under Sanctions, the report notes:

“Although no financial sanctions were imposed under the Act during the 120 days since its enactment, the United States is actively seeking to identify persons to whom this Act may apply and collecting the necessary evidence to impose sanctions.”

Under Visa Sanctions, the report notes:

“Although no visa sanctions were imposed under the Act during the 120 days since its enactment, the Department of State is continuously reviewing available information in order to take appropriate actions with respect to visa ineligibilities.”

Under Termination of Sanctions, the report notes:

“No sanctions imposed under the Act were terminated in the 120 days since its enactment.”

The report also notes the following:

“With the passage of the Act, the United States now has a specific authority to identify and hold accountable persons responsible for gross violations of human rights and acts of significant corruption. The global reach of this authority, combined with a judicious selection of individuals and entities, will send a powerful signal that the United States continues to seek an end to impunity with respect to human rights violations and corruption. The Administration is committed to implementing the Act to support efforts to promote human rights and fight corruption. By complementing current sanctions programs and diplomatic outreach, the Act creates an additional authority to allow the Administration to respond to crises and pursue accountability, including where country-specific sanctions programs may not exist or where the declaration of a national emergency under the National Emergencies Act may not be appropriate. With the establishment of the first dedicated global human rights and corruption sanctions program, the United States is uniquely positioned to lead the international community in pursuing accountability abroad consistent with our values.”

While no individual has been sanctioned under the act, the report lists a few examples of Treasury Department designations issued in recent years which illustrates designations that align with the Act’s focus on human rights and corruption.

Andrey Konstantinovich Lugovoy: On January 9, 2017, Russian national and member of the Russian State Duma Andrey Konstantinovich Lugovoy was designated under the Magnitsky Act, which includes a provision targeting persons responsible for extrajudicial killings, torture, or other gross human rights violations committed against individuals seeking to expose illegal activity by Russian government officials. Lugovoy was responsible for the 2006 extrajudicial killing of whistleblower Alexander Litvinenko in London, with Dmitriy Kovtun (also sanctioned) acting as his agent or on his behalf. Lugovoy and Kovtun were two of five individuals designated under the Magnitsky Act on January 9, 2017.

Evariste Boshab: On December 12, 2016, Evariste Boshab was designated under E.O. 13413 (“Blocking Property of Start Printed Page 28216 Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo”), as amended by E.O. 13671 (“Taking Additional Steps to Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo”), for engaging in actions or policies that undermine democratic processes or institutions in the Democratic Republic of the Congo (DRC). Boshab offered to pay DRC National Assembly members for their votes in favor of a bill to amend electoral law to delay elections and prolong President Joseph Kabila’s term beyond its constitutional limit.

Kalev Mutondo: Also on December 12, 2016, Kalev Mutondo was designated under E.O. 13413, as amended by E.O. 13671, for engaging in actions or policies that undermine democratic processes or institutions in the DRC. Kalev supported the extrajudicial arrest and detainment of opposition members, many of whom were reportedly tortured. Kalev also directed support for President Kabila’s “MP” political coalition using violent intimidation and government resources.

North Korean Ministry and Minister of People’s Security: On July 6, 2016, the North Korean Ministry of People’s Security was designated pursuant to E.O. 13722 (“Blocking Property of the Government of North Korea and the Workers’ Party of Korea, and Prohibiting Certain Transactions With Respect to North Korea”) for having engaged in, facilitated, or been responsible for an abuse or violation of human rights by the Government of North Korea or the Workers’ Party of Korea. The Ministry of People’s Security operates a network of police stations and interrogation detention centers, including labor camps, throughout North Korea. During interrogations, suspects are systematically degraded, intimidated, and tortured. The Ministry of People’s Security’s Correctional Bureau supervises labor camps (kyohwaso) and other detention facilities, where human rights abuses occur, such as torture, execution, rape, starvation, forced labor, and lack of medical care. A Department of State report issued simultaneously with these designations cites defectors who have regularly reported that the ministry uses torture and other forms of abuse to extract confessions, including techniques involving sexual violence, hanging individuals from the ceiling for extended periods of time, prolonged periods of exposure, and severe beatings. Choe Pu Il, the Minister of People’s Security, was also designated for having acted for or on behalf of the Ministry of People’s Security.

Joseph Mathias Niyonzima: On December 18, 2015, Joseph Mathias Niyonzima was designated under E.O. 13712 (“Blocking Property of Certain Persons Contributing to the Situation in Burundi”) for being responsible for or complicit in or for engaging in actions or policies that threaten the peace, security, or stability of Burundi. Niyonzima supervised and provided support to elements of the Imbonerakure pro-government militia in Burundi, a group that has been linked to the arrest and torture of individuals suspected of opposing the Nkurunziza regime. He was also involved in plans to assassinate prominent opposition leaders.

Fahd Jassem al-Freij: On May 16, 2013, Syrian Minister of Defense Fahd Jassem al-Freij was designated pursuant to, among other authorities, E.O. 13572(“Blocking Property of Certain Persons With Respect to Human Rights Abuses in Syria”) for his role in the commission of human rights abuses in Syria. During his time as Syrian Minister of Defense, the Syrian military forces wantonly and capriciously killed Syrian civilians, including through the use of summary executions and indiscriminate airstrikes against civilians. Some of these airstrikes killed civilians waiting outside of bakeries.

The report says that the United States is committed to encouraging other countries to impose sanctions that are similar to those provided for by the Act. “The Department of State actively participates in global outreach, including the G-20 Denial of Entry Experts Network, a sub-group of the G-20 Anti-Corruption Working Group, in which countries share best practices among visa and immigration experts. Through this network, the United States has encouraged other G-20 members to establish and strengthen corruption-related visa sanctions regimes.”

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@StateDept Spox Talks About Visa Refusals, Oh Dear!

Posted: 3:01 am ET

 

Via the Department Press Briefing:

(No longer daily, now rebranded, and better than ever)

QUESTION: Well, does that mean parole – the fact that parole had to be used would suggest – and let’s just put it in a – not in this specific context, because you won’t talk about these visas specifically – would suggest that the reason for ineligibility stands, that – in other words, that if parole is the only way a person can get into this country, that the decision made by the consular officers at post stands.

MS NAUERT: The consular officers – as I understand it, under law and the way that they handle visa adjudications, once a visa is denied, that that is not able to be reversed, that that decision is not able to be reversed.

QUESTION: Right. In other words – so the decision that was made at post that these girls or anyone was ineligible for a visa stands. So —

MS NAUERT: I can’t comment – I cannot —

QUESTION: — then one wonders why the immigration law is such that it determines or that someone looking at it determines that a bunch of teenage Afghan girls are somehow a threat to the United States or are somehow a – somehow – or otherwise ineligible for an American visa.

MS NAUERT: I think commenting on that, as much as I would like to be able to share with you more about this – you know I can’t. You know I can’t because it’s a visa confidentiality, but I can tell you that it is not reversible once a consular affairs officer denies someone’s visa. DHS took it up; they have the ability to do so. Anything beyond that, DHS would have to answer that.

QUESTION: Right. But I mean it remains the State Department’s position that someone who can only get into the country on this parole – on parole is ineligible for a visa, correct?

MS NAUERT: I wouldn’t conflate one with the other. That is DHS. That’s a different department. That’s a different kind of program. That’s not a program that we administer here. Okay?

QUESTION: But State Department denied the visas twice before the parole was granted.

MS NAUERT: I can’t comment on that. Again, that would come under visa confidentiality. DHS made its decision, and so we are now glad that the girls are coming to the United States and wish them well.

QUESTION: But would that initial decision be reviewed, then, and whatever —

MS NAUERT: I know that our people at very senior levels in Afghanistan were involved in this, and I’ll just leave it at that. Okay?

QUESTION: So if parole – if visa – if visa information is completely confidential and you can’t discuss it, why is parole information available? And then why didn’t you give parole to the —

MS NAUERT: That’s a – you have to talk to DHS about that. Again, that’s a DHS program.

NOW THIS — tales of visa confidentiality:

In fairness to the State Department, the agency did not release any statement about its issuance of a visa to the current central player of the Russian controversy. The Department of Homeland Security did that on its own in a statement to BuzzFeed News last week when DHS cited the issuance of a B1/B2 nonimmigrant visa by the U.S. Department of State in June 2016.

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Related items:

9 FAM 403.10-4  (U) OVERCOMING OR WAIVING REFUSALS

INA 291 places the burden of proof upon the applicant to establish eligibility to receive a visa.  However, the applicant is entitled to have full consideration given to any evidence presented to overcome a presumption or finding of ineligibility.  It is the policy of the U.S. Government to give the applicant every reasonable opportunity to establish eligibility to receive a visa.  This policy is the basis for the review of refusals at consular offices and by the Department.  It is in keeping with the spirit of American justice and fairness.  With regard to cases involving classified information, the cooperation accorded the applicant must, of course, be consistent with security considerations, within the reasonable, non-arbitrary, exercise of discretion in the subjective judgments required under INA 214(b) and 221(g).

Humanitarian or Significant Public Benefit Parole for Individuals Outside the United States

Individuals who are outside of the United States may be able to request parole into the United States based on humanitarian or significant public benefit reasons.

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Appropriations Committee Releases FY2018 DHS Bill, Includes $1.6 Billion For Border Wall

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Posted: 2:22 am ET

 

On July 11, the House Appropriations Committee released its proposed fiscal year 2018 Department of Homeland Security (DHS) Appropriations bill, which will be considered by the subcommittee on July 12. The legislation directs $44.3 billion in discretionary funding for DHS, an increase of $1.9 billion above the fiscal year 2017 enacted level. The bill includes $1.6 billion for physical barrier construction along the U.S. southern border. It also includes $6.8 billion – the same as the President’s request – for disaster relief and emergency response activities through the Federal Emergency Management Agency (FEMA), according to the Committee’s statement.

The bill highlights include the following:

Customs and Border Protection (CBP)

The bill contains $13.8 billion in discretionary appropriations for CBP – an increase of $1.6 billion above the fiscal year 2017 enacted level. These resources ensure our borders are protected by putting boots on the ground, improving infrastructure and technology, and helping to stem the flow of illegal goods both into and out of the country. Within this total, the legislation includes:

  • $1.6 billion for physical barrier construction along the Southern border – including bollards and levee improvements – meeting the full White House request;
  • $100 million to hire 500 new Border Patrol agents;
  • $131 million for new border technology;
  • $106 million for new aircraft and sensors; and
  • $109 million for new, non-intrusive inspection equipment.

Immigration and Customs Enforcement (ICE) – The bill provides $7 billion for ICE –$619.7 million above the fiscal year 2017 enacted level. Within this total, the legislation includes:

  • $185.6 million to hire 1,000 additional law enforcement officers and 606 support staff;
  • $2 billion – an increase of $30 million above the requested level – for domestic and international investigations programs, including efforts to combat human trafficking, child exploitation, cybercrime, visa screening, and drug smuggling;
  • $4.4 billion for detention and removal programs, including:
  • 44,000 detention beds, an increase 4,676 beds over fiscal year 2017;
  • 129 Fugitive Operations teams; and
  • Criminal Alien Program operations, including the addition of 26 new communities to the 287(g) program, which partners with local law enforcement to process, arrest, and book illegal immigrants into state or local detention facilities.

Transportation Security Administration (TSA)

The bill includes $7.2 billion for TSA – a decrease of $159.8 million below the fiscal year 2017 enacted level. This includes full funding ($3.2 billion) for Transportation Security Officers, privatized screening operations, and passenger and baggage screening equipment, in order to speed processing and wait times for travelers and cargo. This also includes $151.8 million to hire, train, and deploy 1,047 canine teams to further expedite processing time.

Cybersecurity and Protection of Communications

To combat increasingly dangerous and numerous cyber-attacks, the bill includes a total of $1.8 billion for the National Protection and Programs Directorate to enhance critical infrastructure and prevent hacking.

Within this amount, $1.37 billion is provided to help secure civilian (.gov) networks, detect and prevent cyber-attacks and foreign espionage, and enhance and modernize emergency communications. Funds are also included to enhance emergency communications capabilities and to continue the modernization of the Biometric Identification System.

Citizenship and Immigration Services (CIS)

The legislation does not fund most CIS activities, as these are funded outside the appropriations process through the collection of fees However, the bill does contain $131 million for E-Verify, which is funded within CIS and helps companies ensure their employees may legally work in the United States.

SEC. 107 of the bill requires the following:

(a) Not later than 30 days after the date  of enactment of this Act, the Secretary of Homeland Security shall submit to the Committees on Appropriations of the Senate and the House of Representatives, the Committees on the Judiciary of the Senate and the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on Homeland Security of the House of Representatives, a report for fiscal year 2017 on visa overstay data by country as required by section 1376 of title 8, United States Code: Provided, That the report on visa overstay data shall also include—

(1) overstays from all nonimmigrant visa categories under the immigration laws, delineated by each of the classes and sub-classes of such categories; and 

(2) numbers as well as rates of overstays for each class and sub-class of such nonimmigrant categories on a per country basis.

(b) The Secretary of Homeland Security shall publish on the Department’s website the metrics developed to measure the effectiveness of security between the ports of entry, including the methodology and data supporting the resulting measures. 

For the complete text of the FY 2018 Subcommittee Draft Homeland Security Appropriations bill, see: http://docs.house.gov/meetings/AP/AP15/20170712/106241/BILLS-115HR-SC-AP-FY2018-HSecurity-FY2018HomelandSecurityAppropriationsBill-SubcommitteeDraft.pdf

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New Report on Tillerson-Miller Battle Over Visa and Refugee Functions

Posted: 12:40 pm ET

 

The Bureau of Consular Affairs via history.state.gov:

The Immigration and Nationality Act of 1952 (Jun 27, 1952; P.L. 82-414; 66 Stat. 174) established within the Department of State a Bureau of Security and Consular Affairs, headed by an Administrator with rank equal to that of an Assistant Secretary. From Mar 1 to Dec 30, 1954, the Bureau was renamed “Inspection, Security, and Consular Affairs.” From 1953 to 1962, the Secretary of State designated incumbents to this position. The Migration and Refugee Assistance Act of 1962 (Jun 28, 1962; P.L. 87-510; 76 Stat. 123) made the Administrator a Presidential appointee subject to the advice and consent of the Senate. In 1962, the Department transferred the security function to the Deputy Under Secretary for Administration, but the title remained unchanged until 1977, when the Foreign Relations Authorization Act for Fiscal Year 1978 (Aug 17, 1977; P.L. 95-105; 91 Stat. 847) changed the Administrator’s title to “Assistant Secretary of State for Consular Affairs.” This title has been given in full in all subsequent commissions to this office.

WaPo’s John Rogin reported on Sunday about the internal administration debate over which part of the government should be charged of deciding who gets into the United States.  WH policy adviser Stephen Miller has reportedly been pushing Secretary Tillerson to get “tougher” on immigration, vetting and refugee policy at the State Department.   Rogin writes that a White House official told him that if Tillerson doesn’t go along with the changes that Miller and others (???) in the White House are pushing the State Department to implement internally, the plan to strip Foggy Bottom of its role supervising these functions could gain traction.  Rogin’s report quotes State Department spokesperson Heather Nauert saying that Tillerson believes that two bureaus should remain where they are and the Secretary of State reportedly views consular and refugees work “as essential to the Department’s mission to secure our borders and protect the American people.” We linked to Rogin’s report below.

Stephen Miller is widely regarded as the principal author of Trump’s travel ban.  We have a feeling that the only “tougher” vetting that Miller and company will find acceptable is shutting down the U.S. border.

We know that some folks are already distressed with the news about the the potential transfer of consular function to DHS. It doesn’t help that Secretary Tilleron’s “listening tour” recommended it (see @StateDept Survey Report Recommends Moving Issuance of Visas, Passports, Travel Docs to DHS).  Neither is it helpful to discover that the nominee to be the next Assistant Secretary of Consular Affairs is on the record supporting this move (see Ex-FSO Who Once Advocated Moving Visas to DHS May be the Next Asst Secretary For Consular Affairs. And we haven’t forgotten that the nominee to be the next “M” is a seasoned GOP budget aide (see Trump to Nominate Top GOP Budget Aide Eric Ueland to be Under Secretary for Management #StateDept).

But take a deep breath.

Last March, OPM released a publication titled, Workforce Reshaping Operations Handbook (pdf). Under Transfer of Function, OPM writes:

An interagency transfer of a function and/or personnel requires specific statutory authorization. Without a specific statutory basis, there is no authority for an agency to permanently transfer a function and/or personnel to another agency on the basis of a memorandum of understanding, a directive from the Executive Office of the President, a reimbursable agreement, or other administrative procedure.

So Congress would have a say whether or not consular function should be stripped from State and moved to DHS. We anticipate that Congressional representatives — especially those with oversight responsibilities are already aware of the many improvements over the visa and refugee vetting process — would need a compelling justification for moving both functions to another agency.  Like how would DHS make it better, with Agatha and a pre-crime division?

Per historical record, on April 18, 1997 then President Clinton announced the reorganization of foreign affairs agencies. In December 1998, he submitted a report to Congress on the reorganization as required by the Foreign Affairs Reform and Restructuring Act of 1998, the Act that provided authority to reorganize the foreign affairs agencies. On March 28, 1999, the United States Arms Control and Disarmament Agency (ACDA) was integrated into the State Department. The United States Information Agency (USIA) was integrated into State on October 1, 1999.  The Broadcasting Board of Governors (BBG), part of USIA, became a separate federal entity. The Act also provided that USAID remained a separate agency but on April 1, 1999, the USAID Administrator reported to and came under the direct authority and foreign policy guidance of the Secretary of State.  Shrinking State’s budget started in 1993 during the first Clinton term under Warren Christopher. The reorganization did not get completed until halfway through Clinton’s second term.

We cannot say whether or not this is going to happen. After all, during the Clinton years, GOP Senator Jesse Helms was chairman of the Foreign Relations Committee. So we need to pay attention where this is going, but would not do any good to panic over something that appears to be a floated idea at this time. It would, of course, be helpful if we can hear directly from Secretary Tillerson.

Three Fraudsters Sentenced For @StateDept Exchange Visitor Program Scheme

Posted: 1:46 am ET

 

Via USDOJ: Three Sentenced for Orchestrating a Nationwide Exchange Visitor Program Fraud Scheme

Acting United States Attorney Steve Butler of the Southern District of Alabama, U.S. Department of State Inspector General Steve A. Linick, and Homeland Security Special Agent in Charge Raymond R. Parmer, Jr. of the New Orleans Field Office announce that lead defendant David Marzano of Zephyr Cove, Nevada, has been sentenced to 26 months in federal prison.  His prison sentence will be followed by 3 years of supervised release.  Marzano was also ordered to pay restitution in the amount of $815,570.00.  Marzano’s co-defendants, Laura Blair also of Zephyr Cove and Janece Burke of Deerfield, Illinois, were each sentenced to 5 years of probation.   The court order Blair to pay $815,570.00, and Burke to pay $271,856.67 in restitution.

In 2002, David Marzano pled guilty in the U.S. District Court of the Northern District of Georgia to a conspiracy involving the unlawful smuggling of aliens.  The conviction stemmed from a staffing agency Marzano operated in the Atlanta area that utilized an illegal alien workforce.   For that offense, he was sentenced to 15 months in prison, followed by 3 years of supervised release.

After getting out of prison, Marzano began using the aliases “Paul Cohen” and “David Cole,” and started a series of new staffing agencies and shell companies based in Chicago, Illinois.  At the time of his arrest Marzano was the CEO of Bullseye Jobs and the former Director of the predecessor company, Hospitality & Catering Management Services.  Marzano’s adult daughter Janece Burke, a.k.a., “Paula Delaney,” “Paula Lawton,” “Jane Moore,” and “Danielle Young,” was the President of Bullseye, and Marzano’s wife Laura Blair, a.k.a., “Jean Cox,” was the company’s Marketing Director.  Together, and with the assistance of others, these defendants engaged in a massive, nationwide fraud scheme designed to unlawfully profit from U.S. Department of State Exchange Visitor Programs.

As was set out in the Indictment, in 1961, Congress passed the Mutual Educational and Cultural Exchange Act of 1961.  The purpose of the Act was to increase mutual understanding between people in the United States and people from other countries by means of educational and cultural exchanges that assist the U.S. Department of State in furthering the foreign policy objectives of the United States.

These educational and cultural exchanges are administered by the U.S. Department of State’s Exchange Visitor Program and governed by specific regulations set out in 22 C.F.R. Part 62.  Annually, more than 275,000 foreign nationals from all over the world enter the United States through one of the Exchange Visitor Programs.  These programs include the Summer Work & Travel Program (“SWT Program”) and the Intern & Training Program (“I/T Program”).

Unlike the SWT Program, the I/T Program is limited to training, and is not an employment program.  As such, regulations specifically prohibit employers from using I/T Program participants as substitutes for ordinary employment or work purposes.  Furthermore, staffing agencies are expressly prohibited from being involved in the I/T Program.

Since the defendants were operating several staffing agencies, the only way to get organizations to sponsor I/T Program participants of the defendants’ companies was to fraudulently misrepresent the true nature of their businesses.   This was primarily done via e-mail between the defendants — who operated under numerous aliases— and sponsor organizations.  In addition, the defendants created various shell companies with names that closely resembled well-known corporations.  One such shell company was Crowne Partnership Group, which, despite representations made by the defendants, had no association with Crowne Plaza Hotels.

As a result of their fraud scheme, more than 200 foreign nationals came to the United States believing that they would be part of the Department of State’s I/T Program.  As the Court heard from victims who testified at the hearing or who submitted victim impact letters, the thousands of dollars necessary to enroll in the program and travel to the United States was a major hardship for many of the foreign victims.  They believed the investment was worth it as the training received through the I/T Program would allow them to return to their home country with much better prospects for being hired as an upper-level executive in foreign-based U.S. companies.  However, rather than receiving the high-level managerial training they expected, the victims were pawned off as cheap foreign labor to restaurants, hotels, and theme parks.  The victims were also required to live in housing arranged by the defendants’ companies.  The businesses where the victims worked paid Marzano directly, but the victims only received a small portion of the wages they earned.

On May 12, 2015, David Marzano and Laura Blair were arrested at Tampa International Airport.  Janece Burke was arrested that same morning in Deerfield, Illinois.  Contemporaneous with the arrests, multiple search warrants were executed in Florida and Nevada.

On June 22, 2015, Janece Burke pled guilty to conspiring with Marzano and Blair to commit wire and mail fraud.  Thereafter, Burke began cooperating with the United States.  Laura Blair pled guilty to the conspiracy charge on April 4, 2016.  That same day, David Marzano pled guilty to the conspiracy charge, as well as a charge for substantive wire fraud, and began cooperating with the United States as well.  The extensive cooperation by both Burke and Marzano has led to various administrative and criminal actions related to other fraud schemes within the I/T Program and other State Department initiatives.

Acting United States Attorney Steve Butler lauded the extensive partnership between the Department of State Office of Inspector General and the Mobile Office of Homeland Security Investigations in shutting down this major fraud scheme.  “The defendants falsely and fraudulently misrepresented the nature of their businesses, which caused real harm to over two hundred victims across the world,” said Acting U.S. Attorney Butler.  “These were vulnerable victims who believed they were coming to the United States to receive high-level training, but who were unfortunately subject to a cruel bait-and-switch.  My office will continue to aggressively prosecute those who seek to defraud vulnerable victims.”

Inspector General Steve A. Linick commended the work of those involved in investigating the case from the Office of Inspector General for the U.S. Department of State. “We are proud to have played a key role in investigating and bringing to justice those who exploit U.S. Department of State programs, such as these, for personal gain.”

Homeland Security Investigations Special Agent in Charge Ray Parmer stated, “Mail and wire fraud can have a devastating impact on victims.  In this case, people expected to come to this country legally and get training and experience.  However, the greed of these three individuals turned trusting people into cheap foreign labor.  HSI will continue to work with our partner law enforcement agencies to ensure we bring those guilty of committing these crimes to justice.”  The New Orleans Field Office, run by Special Agent in Charge Parmer, is responsible for criminal investigations in Alabama, Arkansas, Louisiana, Mississippi, and Tennessee.

This matter was jointly investigated by the U.S. Department of State – Office of Inspector General and HSI-Mobile.  The case was prosecuted by Assistant U.S. Attorney Christopher J. Bodnar of the U.S. Attorney’s Office for the Southern District of Alabama.

 

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Consular Affairs Specifically Responds to ‘Move CA to DHS’ News, Spectacularly Omits It in Message to Troops

Posted: 1:50 pm ET

 

So we blogged about Carl Risch who was recently nominated to be the next Assistant Secretary for the Bureau of Consular Affairs (State/CA).  See Ex-FSO Who Once Advocated Moving Visas to DHS May be the Next Asst Secretary For Consular Affairs. Yesterday, CNN reported that the Trump White House is reportedly considering a proposal to move both CA and PRM to the Department of Homeland Security. See Trump White House Reportedly Considering Folding CA and PRM to Homeland Security.

Today, Acting Assistant Secretary for Consular Affairs David T. Donahue sent a message of “reassurance” to CA employees, without ever mentioning that CNN report. AAS Donahue must think CA folks all live under huge rocks with no cable teevee, or the Internets. Here is the short form:


Below is the long, not funny form where the AAS says he is “committed to keeping you informed as information is available” in the same message that specifically respond to and spectacularly omits the news report that there is a proposal to move CA to DHS:

You may have seen news reports about a draft proposal to the Office of Management and Budget (OMB) regarding Consular Affairs. Executive Order 13781<https://www.whitehouse.gov/the-press-office/2017/03/13/presidential-executive-order-comprehensive-plan-reorganizing-executive> tasked OMB with a broad collection of proposals from the public and from agencies on how to improve the efficiency, effectiveness, and accountability of the government. This is one of many proposals that resulted from those conversations and brainstorming sessions.

I know we are all proud of the work we do to protect the lives and serve the interests of U.S. citizens abroad and to strengthen the U.S. border with every visa and passport decision we make. We share the President’s desire to do that work as efficiently and effectively as possible. Input from the field has resulted in a number of innovations in recent years, and I encourage all of you to continue to share your thoughts and ideas as to how we can improve our processes.

I am committed to keeping you informed as information is available. Please feel free to forward this message to your consular colleagues. Thank you for the work you do every day to execute our mission with excellence, professionalism, and the highest commitment to public service.

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