@StateDept to start requiring Diversity Visa applicants valid, unexpired passports on electronic entry forms

 

On June 5, 2019, the State Department published on the Federal Register an interim final rule requiring alien petitioners for the Diversity Visa Program “to provide certain information from a valid, unexpired passport on the electronic entry form.”

Diversity Visa Program, DV 2016-2018: Number of Entries Received During Each Online Registration Period by Country of Chargeability. (Click on image to see the full pdf document)

Excerpt:

An estimated 14 million aliens register annually for the DV Program through an electronic entry form. The entry form collects information on the petitioner’s full name; date and place of birth; gender; native country, if different from place of birth; current mailing address; and location of the consular post where the diversity visa should be adjudicated, if the petitioner is selected through the DV lottery. The electronic entry form also collects information about the names, dates and places of birth for the petitioner’s spouse and children. The entry process is open to all aliens who are natives of “low-admission” countries without numerical limitation, defined as countries with fewer than 50,000 natives admitted to the United States during the most recent five-year period. After the close of the DV Program entry period, petitioners are selected through a randomized computer drawing (“selectees”) for consideration for one of the 50,000 available diversity visa numbers.

Section 204(a)(1)(I)(iii) of the INA, 8 U.S.C. 1154(a)(1)(I)(iii), vests the Secretary of State with authority to set by regulation the information and documentary evidence to support a petition for entry into the DV Program. The requirements are set out in 22 CFR 42.33.

With this rule, the Department is amending 22 CFR 42.33(b)(1) to require the petitioner to include on the electronic diversity visa entry form the unique serial or issuance number associated with the petitioner’s valid, unexpired passport; country or authority of passport issuance; and passport expiration date. These requirements will apply only to the principal petitioner and not derivatives listed on the entry form. These requirements apply unless the petitioner is either stateless, a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or the beneficiary of an individual waiver approved by the Secretary of Homeland Security and the Secretary of State, consistent with the passport waivers for immigrant visa applicants provided for in 22 CFR 42.2(d), (e), and (g)(2). A petitioner who does not have a passport and is either stateless, is a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or has an individual waiver of the passport requirement from the Secretary of Homeland Security and the Secretary of State, must indicate that he or she falls into one of these three circumstances on the electronic entry form, instead of providing passport information. The requirements for information from a valid passport will not be waived under any other circumstances.

Mandatory Disqualification

The Department is also clarifying that failure to accurately include any information required by 22 CFR 42.33(b)(1) and (2) will result in mandatory disqualification of the petitioner for that fiscal year. The existing regulations require the petitioner to submit specific information, including, but not limited to: Name, date of birth, and place of birth for the principal petitioner and any relatives that may accompany the petitioner, if selected to apply for a diversity visa, as well as a digital photo. While these are currently requirements for the diversity visa entry form, existing regulations do not make clear the consequence for failure to provide the information. The revised regulation clarifies that failure to provide the required information, including a compliant photograph, will result in the disqualification of the entry, the petitioner, and derivatives from the DV Program for that fiscal year.

Why is the Department promulgating this rule?

The Department has historically encountered significant numbers of fraudulent entries for the DV Program each year, including entries submitted by criminal enterprises on behalf of individuals without their knowledge. Individuals or entities that submit unauthorized entries will often contact unwitting individuals whose identities were used on selected DV Program entries, inform them of the opportunity to apply for a diversity visa, and hold the entry information from the named petitioner in exchange for payment. Requiring that each entry form include a valid passport number at the time of the DV Program entry will make it more difficult for third parties to submit unauthorized entries, because third parties are less likely to have individuals’ passport numbers. Entries submitted by unauthorized third parties using a duplicative passport number will also be easily identified and automatically disqualified.

Click here to read the entire notice, or for information on where to send comments (accepted up to July 5, 2019).

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

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

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

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

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

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

click on image to see larger view

click on image to see larger view

 

 

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

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

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

 

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

Posted: 1:56 am EST

 

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

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

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

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

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

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What happens after pay period #26?

Posted: 1:26 am EST

The State Department issued a thin Furlough Guidance Handbook to employees on January 4. It notes that State Department employees funded with no-year or multi-year accounts received their paychecks for pay period #25 on Thursday, January 3, 2019. Foreign Service annuitants received their December annuity payments on January 2, 2019 (Note that pension is not funded by annual Congressional appropriations but is drawn from the Foreign Service Retirement and Disability Fund). The Guidance says that State will also be able to make payroll for these employees for pay period #26 (actual pay date is January 17). What happens beyond that seems to be a big question mark beyond the nugget that CGFS will be issuing some future guidance.

Should the lapse in appropriations continue past the end of pay period 26 (January 5, 2019), the Bureau of the Comptroller and Global Financial Services (CGFS) intends to process payroll for pay period 26 to meet the Department’s Thursday, January 17, 2019 official pay date, for those individuals (both direct-hire employees and LE staff) who are funded using no-year or multi-year accounts that have residual balances. CGFS will be preparing and issuing T&A guidance for bureaus and posts for reporting time during any periods of lapse for pay period 26 and any later pay periods. Furloughed, excepted, and intermittent excepted employees who are not funded would not receive another pay check until there is legislation to permit payment.

01/04/19DS-5113 Agency Notice of Unemployment Compensation for Federal Employees
01/04/19SF-8 Unemployment Compensation for Federal Employees Program

We should note that a January 7 update to AFSA members flagged down a different date, which is this Friday, January 11:

In order to meet normal deadlines for processing payroll in time to meet the next payday on January 17, AFSA understands that funds need to be appropriated by Friday, January 11. The bill that funds operations at State and USAID passed the Senate Appropriations Committee in June by a 31-0 vote, but that bill has not yet gone before the full Senate. 
[…]
If that does not happen by the end of the week, however, some members of the Foreign Service (including some members who have been required to report to work) may not receive a paycheck on January 17. As a first step to preparing for that difficult possibility, members are encouraged to read the new Furlough Handbook to review options for coping with the financial consequences of the partial government shutdown.

Consular Affairs

An update on our query about Consular Affairs funding — we’ve heard from a source that CA/EX recently sent a notice to consular sections informing folks that the bureau “anticipates” being able to continue paying its staff and providing consular services as long as the funding situation with partner bureaus/agencies allowed them to continue providing service that generates revenue. Here are a couple of dire scenarios that have a potential to impact thousands of working people and their families, and not just within the State Department. 

If partner agencies are not able to do their work due to the ongoing funding lapse, it could have a potential to derail consular services. Think DHS or  FBI.  Visa services require that applicant fingerprints, photo and personal data be sent to DHS for the purpose of checking the applicant’s fingerprint information against DHS databases and establishing a record within DHS’s Automated Biometric Identification (IDENT) system. Visa issuance data is then forwarded to DHS for use at US ports of entry to verify the validity of the visa. Visa services also require the  transmission of  applicant fingerprints and personal data to the FBI fingerprint system for the purpose of checking to determine if the person has a criminal record that would have an effect on visa eligibility. If DHS and FBI stop providing those clearances, embassies and consulates won’t be able to issue visas worldwide. And that would have a cascading impact on services, fees collected, and employees getting paid.  Also if/when visa issuances stop, there will be economic consequences for the tourism, travel and hospitality industries. What’s that going to do to the international travelers spending in the United States, or travel industry employment, both direct and indirect employment?

We should note that DHS’s Automated Biometric Identification System or IDENT, is operated and maintained by OBIM (IDENT currently holds more than 200 million unique identities and processes more than 300,000 biometric transactions per day). OBIM resides in DHS’s Management Directorate. During the lapse in appropriations, the Directorate estimates 193 employees as the total number exempt/excepted employees to be retained out of a total of 1,777 employees. So they have people working over there but for how long? How long can people work with no pay?

Additionally, DOJ’s 2019 Contingency Plan says that “all FBI agents and support personnel in the field are considered excepted from furlough.” It also says that “At FBI headquarters, the excepted personnel will provide direction and investigative support to all field operations and excepted headquarters functions. This includes personnel in the Criminal Justice Information Services Division, which provides fingerprint identification services to criminal and national security investigations, and the Records Management Division, which provides name check services to criminal and national security investigations.”

Regarding partner bureaus — consular operations do not stand alone at overseas posts. They are not able to operate without security guards, typically locally hired security guards. Local guards are not under consular sections but under the purview of Regional Security Officers. They are funded under the Bureau of Diplomatic Security within the Worldwide Security Protection, an account that the State Department previously identified as “initially have [ing] available balances”. We don’t know how much available balances DS has, but when that account is depleted, there won’t be money to pay the local guards, and posts cannot just use comp time or issue IOUs. And if there are no local guards to provide this critical function, posts won’t be able to open their consular sections to the public. That will have a cascading effect on services provided, fees collected, employees getting paid, and beyond. 

Also below, the State Department furlough Q&A includes the following;

On jobs during furlough: May I look for a job during the furlough if that is required to apply for unemployment compensation in my state?

A. A furloughed employee may seek employment without advanced authorization and can provide to the unemployment office any evidence that he or she is in fact seeking employment. Some States require claimants be engaged in an active search for work to be eligible for unemployment compensation. Department employees are reminded that relevant ethics laws, rules, and regulations continue to apply to them while in furlough status, including restrictions on outside employment with non-federal entities. For example, Department employees employed by a non-Federal entity during the furlough may later be restricted from participating in their official capacity in matters that affect that entity. If you have specific questions about your potential employment, you can contact EthicsAttorneyMailbox@state.gov.

For presidential appointees and covered noncareer employees (e.g., both noncareer SES and SFS and certain Schedule C employees), there are certain restrictions on outside earned income. Employees who file a Public Financial Disclosure Report (OGE 278e) must also file a recusal notice at negotiationnotice@state.gov when negotiating outside employment.

If you have more specific questions not covered above, you can contact negotiationnotice@state.gov.

Injury while on furlough: If employees are injured while on furlough or LWOP, are they eligible for workers’ compensation?

A. No, workers’ compensation is paid to employees only if they are injured while performing their duties. Employees on furlough or LWOP are not in a duty status.

Can somebody please ask the State Department what happens to employees in war zones and high threat posts who may be injured during this shutdown?

Mental Health Resources:

MED’s Employee Consultation Services (ECS) office remains open with reduced staffing during the furlough. You can reach ECS at 703-812-2257 or email MEDECS@state.gov.FEDERAL

Medical Evacuation:

New medical evacuations and ongoing medevacs are considered excepted activities and will continue during the furlough.

Employee Health Benefits and Life Insurance: Will I still have coverage under the Federal Employee Health Benefits (FEHB) program during the furlough?

A. Yes, the employee’s FEHB coverage will continue even if an agency does not make the premium payments on time. Since the employee will be in a non-pay status, the enrollee share of the FEHB premium will accumulate and be withheld from pay upon return to pay status.

For Federal Employee Group Life Insurance (FEGLI), coverage continues for 12 consecutive months in a nonpay status without cost to the employee (5 CFR 870.508(a)) or to the agency (5 CFR 870.404(c)). Please note that premium payments are required if an enrolled employee in nonpay status is receiving workers’ compensation (5 CRF 870.508(a)).

 

#TrumpShutdown Enters 18th Day, At Least $2.5B in Costs and Counting, With No End in Sight

Posted: 2:38 am PST

On January 3, the Democratic-led House passed spending bills with a handful of Republicans joining them to reopen the government without funds for the border wall. Senate Majority Leader Mitch McConnell has already said repeatedly that he won’t bring the measures up for a vote even if similar legislations made it through the Senate a couple of weeks ago. Those bills were indeed DOA in the Senate, which means, this shutdown will go on and on for now.

Three weeks ago when the shutdown started the State Department issued a notice that required the agency to “immediately commence shutdown procedures.”  The exceptions being those accounts that “initially have available balances” and the employees worldwide working in those funded entities supposedly were informed to continue to report to work.

Accounts subject to lapse in appropriation:

Diplomatic and Consular Programs
Office of the Inspector General
International Boundary and Water Commission Salary and Expenses
American Sections (Note: your blogger doesn’t know what this includes)

Accounts not subject to lapse in appropriation:

Worldwide Security Protection (Covers all DS and 90+ security positions in other bureaus)

Diplomatic Security
Bureau of Medical Services: Directorate of Operational Medicine
Bureau of Administration: Office of Emergency Management

Consular and Border Security Program (Covers all of CA and other consular support personnel)

International Cooperative Administrative Support Services (ICASS)

State Working Capital Fund services

Embassy, Security, Construction, and Maintenance (Covers all of OBO)

Educational and Cultural Exchange Programs

American Institute in Taiwan

Global Health (S/GAC & PEPFAR)

International Narcotics and Law Enforcement

Migration and Refugee Assistance

The announcement also notes that the employees excepted list is subject to change, which could lead to additional employees receiving furlough notices “if the lapse is expected to continue.” 

We understand that Diplomatic Security is already urging the “prudent use of overtime” to slow down the drawdown of its residual funding. No one is talking about it yet, but how long will the State Department continue to pay for its local employees including guards at 277 overseas posts without regular funding? How long will those “initial balances” last? State Department furlough guidelines says that standard procedures to process local employee staff payroll must be followed and that under no circumstances should alternate means be used to pay LE staff salaries, such as using petty cash. What are they going to do with contract guards? 

The State Department’s school, the Foreign Service Institute (FSI)is now closed to all students for the duration of the furlough period. The closure apparently also includes its online student portal. At least one small government contractor at FSI has laid off people just in the last 48 hours. Several dozen employees were affected. Family members working as contractors or subcontractors are affected. If this shutdown continues, married couples working for Uncle Sam and or government contractors will suffer a double whammy — one partner is laid off, and the other partner is working with no pay (this is not to say that single employees do not have bills and loans to pay, because they do, too).  There are also couples working for Uncle Sam as tandem, and both partners are considered “essential” with no pay. And what about one-income FS  families where a significant portion of spouses are not employed/could not get employed overseas?  This is not the first government shutdown, of course, but this is perhaps the most worrisome (until the next one) simply because of erratic pronouncements at the top, and a president who threatens to drag this out “for months or even years.”

The State Department’s Overseas Buildings Operations whose mission is “to provide safe, secure and functional facilities” for overseas mission is said to be running low on fuel. If OBO which typically has “no-year” funding is in trouble, that could mean a whole lot of the entities that initially had “available balances” may also be running into problems as the shutdown enters its third week. OBO has several ongoing projects overseas including 53 projects now in design or under construction. Furlough guidance states that OBO may “continue previously awarded construction and renovation projects for which adequate funds were obligated unless adequate supervision cannot be provided, in which case consider suspension of work if contractually permitted and practically feasible.” 

Diplomatic Post Offices are reportedly not affected by the shutdown at this time, but we’re hearing that the situation will not be the same if the shutdown is not lifted by the end of January. 

Remember the non-emergency personnel and family members evacuated from the US Embassy Kinshasa in December? The evacuees arrived in the DC area just before the shutdown and are now on furlough, too. Guess who’s processing their evacuation vouchers? Nobody. 

The agency shutdown guidelines also says that “Reassignment of personnel already planned may be continued, such as Permanent Changes of Station (PCS), only if funds have been previously obligated.” A host of nominees were just confirmed by the U.S. Senate recently but since no one knows for sure who will be confirmed, we don’t know how travel and relocation funds could have been appropriated ahead of time.Posts may see their new ambassadors soon, or they may not. One source told us that no one is getting orders or travel authorizations at this time. Can somebody please give us a confirmation on this?

We’re also now hearing talks about Consular Affairs’ funding issue, which is largely a self-funded operation, so help us out here — we’re perplexed about that. How is it running out of funds when its funding is not congressionally appropriated?  

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@StateDept’s Passport Services Remain Open During Lapse of Appropriations

On January 2, Consular Affairs announced that its passport services remain open to process passport applications during the lapse of appropriations:

We continue to offer passport services during the lapse of appropriations for the federal government.

You can still apply for a U.S. passport book or passport card at all passport agencies and centers and acceptance facilities (such as U.S. post offices, libraries, or county clerk’s offices) during the lapse of appropriations. You can also renew your passport by mail. Our processing times remain the same: 4-6 weeks for routine service and 2-3 weeks for expedited service.

If you have a scheduled appointment at a U.S. Department of State passport agency or center, please plan on keeping your appointment. If you need to cancel your appointment, you may do so by visiting the Online Passport Appointment System or by calling 1-877-487-2778. If you have a scheduled appointment at a passport acceptance facility and need to cancel your appointment, please contact the facility directly.

We will update this notice if there is a change in passport services during the lapse in appropriations.


State/OIG: Sustained Failure of Leadership at the National Passport Center

The National Passport Center is located in Portsmouth, New Hampshire. NPC opened in 1992 and this past November, it processed its 100 millionth passport application. Below excerpted from State/OIG’s report,  Targeted Review of Leadership and Management at the National Passport Center:

Backgrounder: NPC, the largest of 29 passport-processing agencies and twice the size of the next largest, issued 7.4 million passports in FY 2017, or 38 percent of all passports issued by the U.S. Government from October 2016 to September 2017. Located in Portsmouth, New Hampshire, the center was created in 1992, and it grew from 60 employees at its founding to approximately 900 following a 2007 surge in passport demand.

At the time of the inspection, NPC’s staff consisted of a GS-15 Director, 6 GS-14 Assistant Directors, 16 GS-13 Adjudication Managers, and 57 GS-12 Supervisory Passport Specialists who supervised approximately 350 Passport Specialists. Additional staff included Customer Service and Fraud
Prevention employees, Passport Operations Officers, and over 400 contractors who were responsible for passport production and other support services. NPC operates two flexible shifts, which together cover 22 hours per day Monday through Friday. In addition, depending on workload, NPC scheduled overtime shifts on Saturday and Sunday.

Work Environment and CA/PPT Leadership: Senior leaders in CA’s Office of Passport Services (CA/PPT) were aware of concerns regarding NPC’s work environment since at least 2013, when several NPC employees made allegations against NPC leadership. The employees alleged harassment, “bullying,” a lack of trust in leadership, favoritism, abusive behavior to employees, improper hiring procedures, and an overall lack of transparency in the operations of the organization. In response to the allegations, CA/PPT instructed the Director of the Northeast Regional Office, who oversees NPC and other passport agencies, to conduct an internal review of NPC, which he did in January and February 2014. […] To address the internal review’s findings, CA/PPT ordered extensive executive coaching and training for NPC’s Director and senior leaders. The training lasted approximately 2 years and ended in 2016.

How not to solve the problem: OIG also determined that CA/PPT and NPC senior leaders were disengaged and, based on OIG interviews, generally aware of concerns regarding harassment, abuse, and misconduct. During OIG’s review, CA/PPT senior leaders told OIG that they blamed some of the issues at NPC on the fact that employees have known each other for a long time, dismissing the allegations as grudges held from high school and referring to employees as “crusty New Englanders.” CA/PPT’s senior leaders moreover acknowledged inappropriate behavior at NPC, but hoped that “being really busy would solve the problem.”

Being really busy is their hopeful solution? Good lord, who are these people? Are they available to work their magic wand as WH chiefs of staff?

It works! OIG Hotline Complaints: Between February and May 2018, OIG received a series of hotline complaints alleging misconduct, harassment, retaliation, and unfair hiring practices at NPC. […] Hundreds of NPC employees reported to OIG that retaliation, harassment, and “bullying” pervaded the work environment at NPC. OIG found that the reported behavior was widespread and was either condoned or perpetrated by nearly all levels of NPC leadership. Seventeen percent (91) of NPC employees who responded to OIG’s survey reported that they had experienced or observed discrimination and harassment. Of the 156 NPC employees OIG interviewed, 54 (35 percent) stated that they had experienced or observed retaliation, 80 (51 percent) stated that they had experienced or observed harassment, and 61 (39 percent) stated that they had experienced or observed discrimination.

Employees reported to OIG multiple instances of perceived or possible retaliation by Assistant Directors, Adjudication Managers, and other Supervisory Passport Specialists in denying awards, promotions, and special assignments.

Multiple employees reported incidents of sexual and gender-based harassment to OIG, which in some cases, had been ongoing, widely known, and accepted as part of the center’s culture.

Holy Guacamole Alert! NPC’s already problematic workplace environment was exacerbated by the fact that communication was ineffective at all levels within NPC. […] One example of poor communication was the lack of a formal and effective process for explaining and interpreting new guidance with Passport Specialists. When CA/PPT Office of Adjudication (CA/PPT/A) issued new or updated adjudication-specific guidance, its implementation instructions to passport agencies stated that Adjudication Managers must meet with Passport Specialists to discuss the guidance, answer questions, and ensure everyone understands how to implement the new guidance.10 However, NPC’s Adjudication Managers consistently and affirmatively refused to meet with Passport Specialists. 

You read that part above and you think that’s just bonkers. If they’re not meeting regularly to discuss new passport guidance, how would they know if the guidance they have is already outdated?

Security Procedures: In the course of examining the leadership and communication issues described previously, OIG also learned that NPC did not comply with all required Department security procedures. Specifically […] NPC did not follow facility access control measures that govern employee entry and exit, creating an opportunity for individuals without approved access to enter the building.

Admonishment from CA/PPT senior leader and NPC managers: OIG also notes that, after its site visit, a CA/PPT senior leader visited NPC. According to an information memo CA prepared for the Deputy Secretary following the visit, the CA/PPT senior leader communicated  to NPC employees that the Department does not tolerate retaliation. However, OIG subsequently received complaints that CA/PPT senior leaders and NPC managers admonished staff for complaining to and speaking with OIG.

We should note that the OIG report does not include the names of the senior leaders at CA/PPT or the managers at NPC but they’re on LinkedIn, is that right? Please don’t make them lead the Consular Leadership Day festivities next year, hookay?

Snapshot: Nonimmigrant Visa (NIV) Refusals/Issuances FY2012-2017

Via GAO:

The percentage of NIVs refused—known as the refusal rate—increased from fiscal years 2012 through 2016, and was about the same in fiscal year 2017 as the previous year. As shown in figure 8, the NIV refusal rate rose from about 14 percent in fiscal year 2012 to about 22 percent in fiscal year 2016, and remained about the same in fiscal year 2017; averaging about 18 percent over the time period. As a result, the total number of NIVs issued peaked in fiscal year 2015 at about 10.89 million, before falling in fiscal years 2016 and 2017 to 10.38 million and 9.68 million, respectively.

 

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Consular Officer Asks Visa Applicant: “Why don’t you have a Pulitzer Prize?”

Other questions to ask:

  • Why are you not a super model?
  • Why are you not a MacArthur Fellow?
  • Why are you not a 10?
  • Why don’t you have swagger like Shakespeare?

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@StateDept Issues Guidance For Gender Change in U.S. Passports

Posted: 12:03 pm ET

 

We’ve seen reports about the revocation of U.S. passports of at least two transwomen. Revocation typically means the bearer of the passport is not a U.S. national, and that is permanent. Denial of passport applications on the other hand could mean new/additional documents are required before adjudication of the application is completed.  In any case, we’ve asked the State Department for comment about this news and we received the following response from an official, on background:

We have seen reports of a few transgender individuals having difficulty renewing their passports. The Department has not changed policy or practice regarding the adjudication of passport applications for transgender individuals.  While we cannot comment on individual passport applications due to privacy concerns, the Department addresses cases individually, and strives to treat all applicants with dignity and respect. We have provided passport services to transgender individuals for many years, and have extensive instructions for such applications on our website. We cannot comment on individual cases, but are not aware of any revocations of passports for transgender individuals.

The State Department’s travel.state.gov page has a webpage for gender designation change here.

On June 27, 2018, the Bureau of Consular Affairs (CA/PPT/S/A) did issue a policy guidance on Gender Change that appears new with no superseding guidance as best we could tell. They are now now incorporated in the Foreign Affairs Manual under 8 FAM 403.3. So we asked the State Department if this is new guidance and we were told the following:

The Department has not changed policy or practice regarding the adjudication of passport applications for transgender individuals.  The Department’s policy guidelines were introduced on June 10, 2010. Since that point, medical certification of final gender reassignment surgery was no longer a requirement for issuance of a passport in the changed gender. Certification from an attending medical physician stating that the applicant has undergone appropriate clinical treatment for gender transition is acceptable. If CA receives an appropriate certification that transition is complete from a licensed physician, a full-validity passport will be issued.

Per 8 FAM 403.3 dated June 27, 2017 note the following:

a. This subchapter provides policy and procedures that passport specialists and consular officers (“you”) must follow when an applicant indicates a gender on the “sex” line on the passport application with information different from the one reflected on some or all of the submitted citizenship and/or identity evidence, including a prior passport.

b. This policy explains the need for medical certification from a licensed physician who has treated the applicant or reviewed and evaluated the medical history of the applicant regarding the change in gender, as well as the need for accurate identification and a photograph reflecting the applicants current appearance. It is based on standards and recommendations of the World Professional Association for Transgender Health (WPATH), recognized as the authority in this field by the American Medical Association (AMA).

c. A passport is defined by INA 101(a)(30) (Immigration and Nationality Act) (8 U.S.C. 1101(a)(30)) as “any travel document issued by competent authority showing the bearer’s origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country.” An individual’s gender is an integral part of that person’s identity.

d. Sex reassignment surgery is not a prerequisite for passport issuance based on gender change.

e. Medical certification of gender transition from a licensed physician as described in 8 FAM 403.3-2 is the only documentation of gender change required. Other medical records must not be requested.

f. A form DS-11 Application for U.S. Passport must be used the first time an applicant applies for a passport in reassigned gender, as personal appearance for execution is required, even if the applicant has a previous passport. A change in gender is a change in the identity of the applicant, and evidence of identity in the new name (if applicable) and gender must be presented. Subsequent applications in the same gender may be submitted on a form DS-82 if the applicant is eligible (see 8 FAM 702.2 regarding eligibility to apply on a form DS-82 and 8 FAM 403.3-3(D) regarding resumption of the birth gender).

The State Department official on background told us that If CA receives an appropriate certification that transition is complete from a licensed physician, a full-validity passport will be issued.”

The June 27  guidance notes that “A full validity U.S. passport will be issued reflecting a new gender upon presentation of a signed, original certification or statement, on office letterhead, from a licensed physician who has treated the applicant for her/his gender-related care or reviewed and evaluated the gender-related medical history of the applicant.” It does not mention the requirement for full transition. When we seek clarification, the same State Department official on background told us the following:

If an applicant is in the beginning stages of transition, a limited passport will be issued to the individual. This can be replaced within two years from the date of issuance for a full validity passport at no-cost to the applicant once CA receives medical certification of the appropriate clinical treatment for gender transition.

The June 27 guidance also says that “The applicant is not required to obtain an amended birth record, amended Consular Report of Birth (CRBA), or to request that the U.S. Citizenship and Immigration Services (USCIS) issue a replacement Certificate of Naturalization/Citizenship reflecting the change of gender.”   But also that “State law in the United States and the laws of other countries vary on whether an amended birth certificate may be issued reflecting a gender change”.  

Applicants are required to provide primary and secondary IDs in their new gender. Th guidance says “Some form of photographic ID must be presented; You cannot use the doctor’s certification as the only evidence to identify an applicant.”

Medical certifications from persons who are not licensed physicians (e.g. psychologists; physician assistants; nurse practitioners; and others) are not/not acceptable.

8 FAM 403.3-8  has the sample letter for licensed physicians certifying to the applicant’s gender change/transition.

The guidance also includes a section on “conversations with passport applicants seeking to document gender change/transition”, for passport adjudicators:

1) As with all passport applicants, you must be sensitive and respectful at all times;
2) Refer to the applicant by the pronoun appropriate to her/his new gender even if the transition is not complete.
3) Ask only appropriate questions regarding information necessary to determine citizenship and identity of the applicant.

Read more here.

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