TRIAL TALK - OCTOBER 1993

VISA PROCESSING THORUGH CONSULAR OFFICES.
By Robert G. Heiserman

The visa seeker's fate is literally in the hands of a consul who is required to assess the credibility and the integrity of a complete stranger in a manner of seconds or, at most, a few minutes.

The following observations are based not only on some years of travel and personal experience as a lawyer seeking favorable visa processing for clients, but also on the strength known only to the chronically fatigued and frustrated participant in a widely misunderstood system. These remarks are offered to spark discussion and are in no way intended to overlook the fact that this preposterous mechanism approximates success in that most cases are approved without lawyers and most entries are accomplished without overstay and adjustment of status.

An immigration law practitioner sees a lot of cases very far down stream from that first contact with the U. S. Government at a consular post abroad. Most United States lawyers who have not traveled outside of the United States, or who have not personally sought a visa to enter a country for the first time, might find it difficult to put themselves in the shoes of the applicant for a nonimmigrant visa. The visa seeker's fate is literally in the hands of a consul who is required to assess the creditability and the integrity of a complete stranger in a matter of seconds, or at most, a few minutes.

This process occurs in the rather secure and sterile environment of the consul section waiting room in front of a bank teller interview window. If the applicant shows nothing more than an intention to travel on a round trip ticket, the consul is entitled it determine that he is unpersuaded that the individual will return to his home outside the United States. The visa will be denied. Up to this great wall comes legions of visa seekers who must first state the purpose of their wish to enter the consular property, demonstrate that they have the prerequisite documents, arrive during the hours when such inquires are permitted and be screened for security reasons. Once in the waiting area, which can be indoors, or outside, the lining up and slowing down begins.

Entire families clutching the documentary proof of consanguinity, including restless children and huddling masses of all ages fill every available space in the waiting are. Rows of plastic chairs of strong color cover most available carpetless floor space. Many of the interview windows have blinds or shades, which can be brought down with a finality not unlike a test pattern on a television screen. Some step forward with confidence and announce that they are from the CIA and that the Ambassador is waiting to meet with them. Most are less assertive. In this impersonal setting a deferential and solicitous supplicant, fingertips to fingertips, is met with a rather short list of plain questions, which may or may not result in a give and take or explanation of the decision favorable to otherwise. The applicant may stand in line for hours to get a chance for a moment or two which could affect years of his life, education or freedom. All of this occurs in the presence of the flag and seal of the United States of America, and in one isolate post, a sign forbidding "screaming".

The applicant waits in a crowded room looking at travel posters of various U.S. destinations, watches carefully for non-verbal cues as to the demeanor, attitude or simply the mood of the consul who can be seen behind the glass (presumably bullet proof) partition. Without trying to be too obvious, most applicants who come out of the building smiling are immediately debriefed by those who would like to enhance the applications of the next cadre of hopefuls. In one Asian post there are visa advisory businesses around the corner from the nonimmigrant visa applicant consular post entrance with representatives standing in the street hawking their services. For a fee, a good story along with essential and "life-like" documents can be made available. It is customary for reports of investigations be considered by consuls regarding falsehoods flowing from such sources. It is little wonder that once in a while some hapless applicant offers a compelling tale of divine veracity, which coincidentally fits the profile of a currently popular scam.

Since just visiting is hardly a concept susceptible to quantification or evaluation by scientific method, one is left to mischievous musings as to just how a consul would justify issuance. Perhaps they are imagining pressure from the host country critical of a 98 percent refusal rate on B-1/B-2 visas. It may well be that in the time allotted, they really have no idea who is to be selected as the lucky traveler. If the response to the perceived pressure is to issue visas to a certain percentage, no matter what, then perhaps the next six applicants wearing yellow or brown will be cheerfully granted the happy news. On the other hand, if each applicant were to be interviewed as an immigration lawyer would inquire of a potential new client, then perhaps the conference could be enhanced by a detailed questionnaire, explanatory charts showing the various pathways through the legal system and brief and constructive discussion of the most commonly encountered (or honored in the breach) views on dual intent.

Such a process is routinely sought and occasionally paid for by the very people who approach the consul to state the purpose of their intended travel. Most lawyers seem to need at least thirty minutes to an hour to review the circumstance and the relevant legal considerations. Consuls carry out their mission within minutes, since their purpose is heavily weighted toward determining whether or not the visa should be issue based on the facts presented. It is a rare consul who halts the applicant mid-phrase to caution and coach a better story. Any experienced lawyer can dispute many consular decisions, but all will know of instances where the consul did go above and beyond the call of duty to assist a deserving applicant in the accumulation of helpful documentation. There are truly magnificent stories of consular experience, which by their nature go unreported. Nonetheless, a source of difficulties in this area is the assumption that lawyers are "unnecessary for matters before the Department of State." This language used to appear on correspondence from London. Legal counsel are presumed to be retained for their skills in evasion of legal requirements and the wholesale deception of the consul whose job is tough enough as it is, given resource limitations. In fact, consular post-wide policy controls whether lawyers are to get a call returned, letter answered or permission to be present at any interview. The policy is most often described as uniform in application so that all lawyers are to be ignored or considered; as if categorically all lawyer-assisted cases could be considered in the same light.

The statutory guidance to the consul omits reference to just how the consul is to exercise judgment on the specter of counsel factor. Lawyers' rules of conduct forbid direct contact with a represented party, but a consul, whether a lawyer or not, often feels unrestricted in performing quick and dirty counselor by-pass surgery. While consuls are probably required to "copy" counsel of record (whatever that means) with correspondence, they do not appear to be limited in their person or other communications with represented parties. Getting past counsel may be seen by some as a right of passage or the only way to get to the truth of a situation. Curiously, as theexorcist, does little to diminish the fear of ghosts and goblins, the consul rarely does much to assist in maintaining respect for the legal profession or in referring inquires to the organized bar.

Exceptions to this broadside exist, gratefully, but one is more likely to encounter a less than charitable view of lawyers. It has long been a "truism" that the presence of a lawyer in a B-1/B-2 visa matter is a strong indication that the applicant is actively carrying out a bold scheme of visa fraud or is offering a "second" or functional equivalent of Hessian soldiers of fortune who stood in for Northerners in the Civil War. Although there is a rich anthology of folklore regarding the unseemly visage of counsel's flinty eye at the consular peep hole, and undoubtedly grains of sand sufficient to bring up a tear, there is no easy comparison to any other process in United States legal system where the presence of an officer of the court sworn (as the consul is sworn) to uphold the law, is the subject of open fear and loathing.

One of the most frequent contexts for this sad lack of awareness of the role of lawyers in a free society is in the B-1/B-2 visa process. One wonders just what supernatural powers these lawyers possess. College educated public servants administering a process essentially beyond the scope of third party audit or review in court seem threatened by the mere actual or constructive presence of a lawyer in a case. The self-assured consul will take comfort from being backed by the investigative power and expertise accumulated over hundreds of years of national experience, extensive studies of the impact of the visa process and Congressional oversight in the context of the exercise of the Executive branch's conduct of foreign affairs at the highest levels. Surely something went bump in the night and caused a fretful consul to awake in a cold sweat, brave the night air and pass the hours before dawn stamping black nonimmigrant visa application forms with the ritual "214(b)" sign. Technological advances may permit more subtle scratch n' sniff OF 145's with a distinct garlic aroma. To the most cynical, the process is subject to manipulation limited only by the imagination of the entrepreneur. It is little wonder that the counsel who hears the same story day after day becomes jaded and non-responsive, if not occasionally offended by the bravado of outrageous deceit.

Having spent quite a bit of time in nonimmigrant visa matters outside the United States, it is my impression that most consuls are relatively neutral in their demeanor. There are exceptions. There are also locations in the world where one wonders whether or not crowd control is being achieved simply by portraying the least reasonable profile to discourage inquiry. Since immigration lawyers may be the only lawyers who get paid to stand in line, it should not be beneath us to seasonally swim upstream to inspect the visa headwaters. Nor should we be greeted along the way by our countrymen in anything but a civil manner.

Copyright 1992 Federal Bar Association. Reprinted with permission. Previously published in Miller, Pederson & Weigle. "The Visa Processing Guide, 2nd edition." Copyright © 1993 by American Immigration Lawyers Association.

Robert G. Heiserman practices immigration law in Denver, Colorado. He is Trial Talk's Immigration Law Editor.