@StateDept Cancels Ongoing #DiversityVisa Registration, Launches New Registration Oct.18-Nov.22

Posted: 3:14 pm PT
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On October 12, we blogged that the diversity visa website (https://www.dvlottery.state.gov/) has been down for maintenance since at least Sunday, October 8 (see Diversity Visa Lottery Registration Opens 10/3-11/7 – Site Now Down For Maintenance!). The Bureau of Consular Affairs which runs the program has now put up a new announcement:

With the exception of the notice posted on https://www.dvlottery.state.gov there are no FAQs on the website.  The US Embassy in Ecuador, however, helpfully posted the following FAQ:

Q: What can you tell us about the technical issue? Were entries lost? Was this a hacking attempt?
The technical issue was a failure to properly account for country of eligibility if the entrant was selecting a country of eligibility other than his/her place of birth, which is permitted in certain limited circumstances. This was not a result of any outside interference or hacking attempt.

Q: How many entries had been received before this technical issue?
Due to technical issues, we are unable to reliably estimate how many valid entries were received at this time. In order to protect the integrity of the process and ensure a fair opportunity to all entrants, we are restarting the entry period now.

Q: How many DV entries does the Department expect for DV-2019?
In DV-2018, the last year for which numbers are available, we received more than 14 million entries from principal applicants.

Q: How will the Department notify applicants whose entries are not valid? 

The Department will send an automated email notification to each Diversity Visa entrant from whom an entry was received before October 18, 2017, using the email address provided on the lottery entry form, directing the entrant to check the website dvlottery.state.gov for an important announcement.  We will also work through our embassies and consulates to inform potential entrants of the situation and new registration period using social media and local media outlets.

Since this program, presumably was the same program used in last year’s lottery, why would the “technical issue” that failed “to properly account for country of eligibility if the entrant was selecting a country of eligibility other than his/her place of birth” only surface now?  Did CA switched contractor between last year and this year’s lottery roll out? Did contractor perform system programming change after the last lottery but before the current one opened on October 3, 2017?

What we don’t understand is if this is a technical issue now, why was this not a technical issue last year if they’re using the same program?

This is not the first time that a “technical issue” happened with diversity visa lottery program.

We were reminded recently that the May 2015 DV lottery site crashed when people were trying to check lottery results. But the really big one happened much earlier in 2011 when Consular Affairs ran the FY2012 lottery, and it turned out the lottery results were not even random, so CA had to nullify the visa lottery results and ran the lottery again.  The nullification resulted in a lawsuit against the Department of State. That lawsuit was eventually dismissed by the U.S. District Court for the District of Columbia on July 14, 2011.

The State/OIG did review that FY2012 DV debacle, and since we’re not clear how the current technical issue occurred, we’ll revisit the 2011 case:

The OIG team found three problems that led to this failure, all of which stem from the lack of adherence to sound project management and systems development principles. First, CA’s Office of Consular Systems and Technology (CST) implemented a system programming change without performing adequate testing. Second, CST changed contract task orders without notifying the Office of Acquisition Management (AQM). Third, CST management failed to adequately discuss the changes with all stakeholders and thus did not fully understand how overseas consular officers administer the DV program.

Also this:

The primary reason for the DV 2012 program failure was that CST did not adequately test the new computer program for the random selection of potential DV program participants. Section 203(c) of the Immigration and Nationality Act (INA), as amended,3 limits the number of DVs that may be available by both region and country. Therefore, 22 CFR § 42.33(c) requires that selection be based on random rank-ordering of participants by region through a computer program designed for this purpose. When participants submit their records, the computer program assigns a sequential number to each record based on the participant’s region. Subsequently, the selection process uses the sequential numbers to randomly rank-order the participants’ records. CST management decided in November 2010 not to use the commercial off—the—shelf statistics analysis program that it had used successfully for random rank—ordering in numerous previous years. Instead, CST management asked one of its contractors to develop a program. This new computer program had a coding error that produced a nonrandom rank-ordering and thus failed to meet INA requirements. The program not only selected 98 percent of the applicants from the first two dates of the allowed submission dates, it also selected multiple individuals from the same families.

According to CST management and the contractor staff who developed the new DV computer program, testing scenarios were limited to validating that all geographic regions were assigned the correct numerical limitation and that the total number of selectees to be drawn was accurate. In addition, the development, testing, and production implementation of the program were done exclusively by one contracting company that, due to poor planning and failure to consult with all DV stakeholders, did not have adequate information to create a complete test plan for the computer program. Key stakeholders such as CST’s independent validation and verification team, the Visa Office, and the contractor that operated and managed the legacy computer program were not involved in planning and implementing the new computer program.
[…]
Principals in the Visa Office were not aware that changes had been made to the computer program until after it failed and the results had to be voided. CST management further stated that it is not clear to them which office is responsible for administering the DV program.

Read the full report here: https://oig.state.gov/system/files/176330.pdf.

So again, did the Consular Affairs contractor perform system programming changes after last year’s lottery but before the current one opened on the 3rd of October?

If that did not happen, and CA is using the same system, how did CA principals become aware that the system is failing “to properly account for country of eligibility if the entrant was selecting a country of eligibility other than his/her place of birth?”

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Diversity Visa Lottery Registration Opens 10/3-11/7 – Site Now Down For Maintenance!

Posted: 1:41 pm PT
Updated: 2:02 pm PT
Updated: October 13, 5:15 pm PT
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The annual Diversity Visa Lottery registration period opened October 3, 2017 and closes on November 7, 2017. We understand that the registration site (https://www.dvlottery.state.gov/) has been down since at least Sunday. Today the site has a “Down for Maintenance” banner. The question we’ve been asked: The State Department has 45 weeks a year to get the site ready for the five week registration period. Now it’s down for maintenance, what’s going on? We’ve asked. We will update if we hear anything back.

Update#1:
We understand that this could be a technical issue, but we have yet to hear an official response to our inquiry or a public statement from the State Department.

Update#2: A State Department official speaking on background told us “There is a technical problem requiring maintenance and the site will be brought back up as soon as possible.” When asked about the specifics of the technical problem or the time frame when they expect the issue resolved, the official declined to provide additional details. 

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Visa Holders Who Violate #90DayRule May be Presumed to be of “Material Misrepresentation”

Posted: 4:44 am ET
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On September 26, the State Department updated its FAM guidance on INELIGIBILITY BASED ON ILLEGAL ENTRY, MISREPRESENTATION AND OTHER IMMIGRATION VIOLATIONS – INA 212(A)(6)

INA 212(a)(6)(C)(i) provides an alien who seeks to procure, or has sought to procure, or has procured a visa, other documentation, or entry into the United States or other benefit provided under the INA by fraud or willfully misrepresenting a material fact at any time shall be ineligible for a visa.

9 FAM 302.9-4(B)(2) notes that “most cases of inadmissibility under this section will involve “material misrepresentations” rather than “fraud” since actual proof of an alien’s intent to deceive may be hard to come by.  As a result, the Notes in this section will deal principally with the interpretation of “material misrepresentation.”

The guidance tells consular adjudicators that “To conclude there was a misrepresentation, you must have direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion but less than a preponderance of the evidence.”

On September 16, 2017 the State Department sent 17 STATE 95090 on the Change to INA 212(a)(6)(C)(i) and Introduction of 90 Day Rule

1. SUMMARY: This cable advises posts on the application of INA section 212(a)(6)(C)(i) as it pertains to revised guidance at 9 FAM 302.9-4(B)(3)(g-h) regarding the 90 day rule, formerly known as the “30/60 day rule.” Interagency working groups agreed to a change in policy and expanded the 30/60 day timeframe to 90 days for aliens who enter the United States and engage in activity inconsistent with their nonimmigrant status before procuring a change or adjustment of status. END SUMMARY.

The 90 day rule

2. The following revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1. The guidance should not be applied retroactively. As detailed in the revisions to 9 FAM 302.9-4(B)(3)(g-h), aliens who violate or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States by:

1) engaging in unauthorized employment;
2) enrolling in a course of unauthorized academic study;
3) marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent; or
4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation.

You must give the alien the opportunity to present evidence to rebut the presumption that he or she made a willful misrepresentation on prior visa applications or in their applications for admission to the United States before you can find the applicant ineligible under 212(a)(6)(C)(i). If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).

3. If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.

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Trump Announces New Visa Restrictions For Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, Somalia

Posted: 12:17 am ET
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President Trump issued E.O. 13780 on March 6 (Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States). It revoked the January 27 order, and reissued the ban for the same six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen, with Iraq excepted (see Trump Revokes Travel Ban EO, Reissues New Executive Order For Six Muslim Countries Minus Iraq).

As we’ve pointed out previously here, there’s something in EO 13780 that did not get as much attention as the travel ban.  Section 2 (a) and (b) of the E.O. requires the review of immigration-related information sharing by foreign governments.

Sec. 2.  Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period.  (a)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.  The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.

(b)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order.  The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.

The report required under Section 2(b) was reportedly submitted in mid-July to the President. The State Department subsequently sent a guidance cable to all posts worldwide to help foreign governments understand the requirements and how they can start meeting them. We understand that posts were told to request a response from their host government counterparts to enable them to respond to the State Department by July 21.

On September 24, President Trump announced new security measures that establish minimum requirements for international cooperation to support U.S. visa and immigration vetting and new visa restrictions for eight countries. The announcement cites Section 2 of Executive Order 13780 — “if foreign countries do not meet the United States Government’s traveler vetting and information sharing requirements, their nationals may not be allowed to enter the United States or may face other travel restrictions, with certain exceptions.” Below are the country-specific restrictions per Fact Sheet: Proclamation on Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats:

Country-Specific Travel Restrictions:

  • The United States maintained, modified, or eased restriction on 5 of 6 countries currently designated by Executive Order 13780. Those countries are Iran, Libya, Syria, Yemen, and Somalia.
  • The United States lifted restrictions on 1 of 6 countries currently designated by Executive Order 13780: Sudan.
  • The United States added restrictions and/or additional vetting on 3 additional countries found to not meet baseline requirements, but that were not included in Executive Order 13780. These countries are: Chad, North Korea, and Venezuela.
  • The country specific restrictions are as follows:

Chad – Although it is an important partner, especially in the fight against terrorists, the government in Chad does not adequately share public-safety and terrorism-related information, and several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa’ida in the Islamic Maghreb. Accordingly, the entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.

Iran – The government in Iran regularly fails to cooperate with the United States Government in identifying security risks; is the source of significant terrorist threats; is state sponsor of terrorism; and fails to receive its nationals subject to final orders of removal from the United States. Accordingly, the entry into the United States of nationals of Iran as immigrants and as nonimmigrants is suspended, except that entry by nationals of Iran under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals will be subject to enhanced screening and vetting requirements.

Libya – Although it is an important partner, especially in the area of counterterrorism, the government in Libya faces significant challenges in sharing several types of information, including public-safety and terrorism-related information; has significant inadequacies in its identity-management protocols; has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States; and has a substantial terrorist presence within its territory. Accordingly, the entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.

North Korea – The government in North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements. Accordingly, the entry into the United States of nationals of North Korea as immigrants and nonimmigrants is suspended.

Somalia – Although it satisfies minimum U.S. information-sharing requirements, the government in Somalia still has significant identity-management deficiencies; is recognized as a terrorist safe haven; remains a destination for individuals attempting to join terrorist groups that threaten the national security of the United States; and struggles to govern its territory and to limit terrorists’ freedom of movement, access to resources, and capacity to operate. Accordingly, the entry into the United States of nationals of Somalia as immigrants is suspended, and nonimmigrants traveling to the United States will be subject to enhanced screening and vetting requirements.

Syria – The government in Syria regularly fails to cooperate with the U.S. Government in identifying security risks; is the source of significant terrorist threats; has been designated as a state sponsor of terrorism; has significant inadequacies in identity-management protocols; and fails to share public-safety and terrorism information. Accordingly, the entry into the United States of nationals of Syria as immigrants and nonimmigrants is suspended.

Venezuela – The government in Venezuela is uncooperative in verifying whether its citizens pose national security or public-safety threats; fails to share public-safety and terrorism-related information adequately; and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. Accordingly, the entry into the United States of certain Venezuelan government officials and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.

Yemen – Although it is an important partner, especially in the fight against terrorism, the government in Yemen faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory; fails to satisfy critical identity-management requirements; and does not share public-safety and terrorism-related information adequately. Accordingly, the entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.

IRAQ: The Secretary of Homeland Security also assesses Iraq as inadequate according to the baseline criteria, but has determined that entry restrictions and limitations under a Presidential proclamation are not warranted because of the close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).

The Secretary recommends, however, that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States.

The FAQ notes that these restrictions and limitations took effect at 3:30 p.m. eastern daylight time on September 24, 2017, for foreign nationals “who were subject to the suspension of entry under section 2 of E.O. 13780, and who lack a credible claim of a bonda fide relationship with a person or entity of the United States.” The restrictions and limitations take effect at 12:01 a.m. eastern daylight time on October 18, 2017, for all other foreign nationals subject to the suspension of entry under section 2 of E.O. 13780, and for nationals of Chad, North Korea, and Venezuela.

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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
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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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Secretary Tillerson Swears-In Assistant Secretary for Consular Affairs Carl Risch

Posted: 12:22 am ET
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Via state.gov

U.S. Secretary of State Rex Tillerson swears-in Assistant Secretary for Consular Affairs Carl Risch, at the Washington Passport Agency, in Washington, D.C. on August 31, 2017. [State Department Photo/ Public Domain]

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Assistant Secretary for Consular Affairs Carl C. Risch Assumes Post

Posted: 12:14 pm PT
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Top Diplomatic Security and Consular Affairs Officials to Step Down: Bill Miller, Kurt Rice, David Donahue, John Brennan

Posted: 3:25 am ET
Updated: 2:33 pm PT
Updated: July 25, 3:03 pm PT
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Sources informed us that Acting Assistant Secretary for Diplomatic Security Bill A. Miller announced his intention to step down from his post late last week. A/S Miller will reportedly retire next month.  Until his appointment as Acting A/S for Diplomatic Security in January 20, he was the bureau’s Principal Deputy Assistant Secretary for Diplomatic Security and Director of the Diplomatic Security Service (DSS) from April 14, 2014.  Previous to that, he was the Deputy Assistant Secretary of State for High Threat Posts.

A member of the State Department’s Diplomatic Security Service since 1987, Bill Miller is a career member of the Senior Foreign Service. His last overseas assignment was a three-year posting as Regional Security Officer at the U.S. Mission in Cairo, Egypt.  Preceding his assignment to Cairo, Mr. Miller was the Chief of the Security and Law Enforcement Training Division at the Diplomatic Security Training Center in Dunn Loring, Virginia.

Prior to entering duty in 1987 with the Department of State as a Diplomatic Security Service Special Agent, Mr. Miller served as a U.S. Marine Infantry Officer. Mr. Miller was honored as the 2004 Diplomatic Security Service Employee of the Year in recognition for his service in Iraq. In addition, Mr. Miller is a recipient of the Department of State’s Award for Valor, several Superior Honor Awards, the Department of Defense Joint Civilian Service Commendation Award and the Marine Security Guard Battalion’s award as RSO of the Year.

To-date, President Trump has not put forward a nominee to succeed Gregory Starr as Assistant Secretary of State for Diplomatic Security.  Mr. Starr retired a week before inauguration day, and Mr. Miller has been in an acting capacity since January 20. Without a newly appointed successor, we were informed that the next senior official, Christian J. Schurman, will be the Acting Assistant Secretary for Diplomatic Security.  Mr. Schurman is currently the Acting Principal Deputy Assistant Secretary for Diplomatic Security/Director of Diplomatic Security Service (DSS) and responsible for the Bureau of Diplomatic Security’s international and domestic operations and training programs. Beyond his name and title, State/DS does not have an extensive biography for Mr. Schurman.  We don’t know yet who among the seven top bureau officials would be acting PDAS during this time.

Kurt R. Rice, the Deputy Assistant Secretary and Assistant Director for Threat Investigations and Analysis (DS/TIA) will not be one of those officials.  Mr. Rice is also retiring.  Mr. Rice who was appointed to his position in May 2016 was in charge of all threat management programs within Diplomatic Security that analyze, assess, investigate, and disseminate information on threats directed against U.S. facilities and personnel overseas and domestically.

He was also responsible for the Overseas Security Advisory Council (OSAC), a public-private partnership that promotes the sharing of security information between the U.S. Department of State and American private sector organizations with operations and personnel abroad. We rely on OSAC for security guidance when there are breaking news overseas.  His office also provides oversight for the Reward for Justice program, the U.S. Government’s premier public anti-terrorism rewards program.

Mr. Rice joined Diplomatic Security in May 1987 and is a career member of the Senior Foreign Service. As DAS/TIA, he was the senior Diplomatic Security Service (DSS) advisor regarding intelligence and counterterrorism matters. He is also the DSS organizational representative to the U.S. Intelligence and Counterterrorism communities. He previously served as Regional Security Officer for the Russian Federation, and Special Agent in Charge (SAC) of all DS activities in the embassy and three subordinate consulates. He is a recipient of several State Department Meritorious and Superior Honor Awards, as well as interagency Intelligence Community awards.

There are five office directors under TIA, so anyone of those directors could potentially be appointed as Acting DAS for Threat Investigations and Analysis (DS/TIA) until a nominee is officially announced. Given that there is no nominee for the assistant secretary position, it is possible that the principal deputy assistant secretary (PDAS) position and deputy assistant secretaries (DASes) could get filled before the top bureau appointment is officially identified, nominated and confirmed by the U.S. Senate.

At the Consular Affairs Bureau, the Acting Assistant Secretary of Consular Affairs David Donahue is also set to step down the end of this week.  We understand that AA/S Donahue’s retirement has been long planned but he will still be missed. The Acting Principal Deputy Assistant Secretary of State for Consular Affairs is Ed Ramotowski, who was previously the DAS for Visa Services. Our assumption is that Mr. Ramotowski will now step up as Acting Assistant Secretary for Consular Affairs pending the confirmation of Mr. Risch to the Consular Bureau. The CA bureau has three four DASes: Overseas Citizens Services DAS Karen L. Christensen, Passport Services DAS Brenda Sprague, Acting DAS for Visa Services Karin King, and DAS for Resources, John Brennan. We understand that the  Deputy Assistant Secretary for Resources (DAS/R) position was created in 2015 to coordinate CA/EX, the Comptroller, the IT systems people, and the 1CA management initiative. Mr. Brennan is also retiring. One of them will most probably step us as PDAS, so one more office in CA will have a new acting name on its door.  So one of the three remaining DASes (Brennan excepted) will probably become the PDAS, and two more offices in CA will have a new acting name on its door. 

We’ve endeavored to look for Mr. Donahue’s official biography but state.gov does not appear to carry any biographies for senior officials for  the Bureau of Consular Affairs. The public facing CA website travel.state.gov also does not include biographies of its senior officials.  We were able to get hold of Mr. Donahue’s official biography since we originally put up this blogpost (thank you J!). 

David T. Donahue has been Acting Assistant Secretary in the Bureau of Consular Affairs since January 2017. He served as Principal Deputy Assistant Secretary from September 2015 after serving as Senior Advisor to the Bureau from April 2014.

Prior to this assignment he was Division Director for the Bureau of Human Resources Office of Career Development and Assignment, Senior Level Division. From 2012 to 2013 he served as Coordinator for Interagency Provincial Affairs (IPA) at the U.S. Embassy in Kabul, Afghanistan with oversight of all U.S. Civilian Provincial Reconstruction Teams throughout Afghanistan.

Mr. Donahue was Deputy Assistant Secretary of State for Visa Services in the Bureau of Consular Affairs from 2008 to 2012, where he managed visa operations for our 225 visa-issuing posts overseas and directed visa policy for the State Department. He has also served as the Director of Policy Coordination and Public Affairs for the Bureau of Consular Affairs, 2007 – 2008, and Minister Counselor for Consular Affairs in Mexico City, Mexico from 2005 – 2007.

Mr. Donahue also served tours in the Philippines, Pakistan, Singapore, and Trinidad and Tobago. Other domestic assignments include serving as Watch Officer in the State Department Operations Center, Bangladesh Desk Officer, and Consular Training instructor at the Foreign Service Institute. Mr. Donahue joined the Foreign Service in 1983 and is the recipient of numerous awards including the Presidential Meritorious Service Award.  While assigned in Islamabad, Mr. Donahue went to Afghanistan in 2001 to secure the release of two Americans held by the Taliban. Read more of that here.

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

Posted: 1:26 pm PT
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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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New Report on Tillerson-Miller Battle Over Visa and Refugee Functions

Posted: 12:40 pm ET
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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.