Visas! Visas! Get Your Red-Hot Visas!
Last week, our friends and colleagues over at Daily Demarche published their thoughts and notes about our current visa and immigration system and the Department of State’s role in the process. We generally found ourselves in total and complete agreement with the analysis, but wanted to add a few more points.
First, as Smiley correctly pointed out, the real sword in the Department’s arsenal is INA § 214(b). This section gives consular officers wide discretion and judgment in determining whether any given applicant overcomes the rebuttable presumption that the applicant is an intending illegal immigrant.
Some officers (and more than a few applicants) chafe over the seeming randomness in result, since officers apply the section according to a necessarily subjective standard, i.e. their individual judgment. However, such complaints miss the mark. The President has plenary power to exclude aliens from the United States and the FSOs who use 214(b) are doing no more than exercising that power, which has been delegated to FSOs through their direct Presidential commission (and Senate confirmation) and, specifically, in the consular commission, which is distinct and different.
Since, in any case, someone’s judgment is going to be exercised, it makes no sense to complain that one person’s judgment is different than another person’s. Of course they are. But, in general, the judgments we consular officers make daily do follow a general pattern which tracks the letter of the law closely. Good cases are obvious, and are generally approved; bad cases are obvious, and are generally denied. It’s in those tough middle-ground cases where officers and applicants find differing results. Let's look at a few cases to give you a flavor of what we deal with daily.
For example, say an applicant from New Pomeria (our favorite fictitious country) presents himself at the window. He works for IBM, graduated from the local version of Harvard, makes a salary much above the average, is married, with 3 children, and has 5 instances of prior travel, 2 with the family to Miami and 3 alone to IBM headquarters in NYC.
Any FSO will approve this guy under 214(b) barring other issues, such as a criminal record (you’d be surprised how many of these foreign elites drink and drive!) or other possibly adverse information. But, chances are, you approve this guy be he Romanian, Peruvian or Indonesian.
Now, let’s say the next applicant works at a hair salon cutting hair and also sells candy and drinks out of his home for extra income. He is single, low income, with no children. He has no prior travel.
This guy has weak economic ties and weak family ties to his country. It well may be that the guy honestly and truly wants to go visit his cousin for a few weeks and come home. As Americans, who experience the reality of illegal immigration at home daily, it is often hard to forget just how darn hard it is to move to a different country, learn a new language and make a new life, even if it is the richest country in the world. But, the sad fact here is that this applicant is unable to overcome the presumption inherent in 214(b) and, as a result, will not get a visa.
The next folks at the window are a family of four. Dad, Mom, Son and Daughter. Dad works for a large local retailer, makes an average salary which translates to only around $500 a month in dollars, and has worked there for 15 years. Mom works as a secretary, earns about half of what Dad does, and has worked there for 7 years. Son is in the most prominent public university, studying law. Daughter is still in the local equivalent of high school. The family has no prior travel except for a weekend to a neighboring country.
Here is where it gets interesting. What does one highlight? The fact that they are low income by US standards and would have no family ties if they all travel together? Or the fact that, by local standards, they are a solid middle-class family with good jobs and have shown great social stability?
You make the call: let’s see what you come up with in the Comments section.
That issue aside, the most critical matter that Congress needs to address in the realm of immigration law are the visas for which 214(b) does not apply: Hs, Rs, and most importantly, Ls.
Hs are for foreign workers. An employer petitions DHS for the foreign worker and DHS allegedly investigates whether or not the petition should be granted. In fact, as any FSO on the Line will tell you, DHS rubber-stamps these and gets them off their backs. Under the law, however, FSOs have no authority whatsoever to reject these applicants. The only tool we have with these is if we find something the applicant left out of their original petition to DHS. At that point, we can return it for re-adjudication. However, since specialized lawyers draft the bulk of H petitions, there usually isn’t any wiggle room for the FSO to use to reject. As a result, this whole class of applicants pass to the U.S. with very little scrutiny.
Rs are for religious workers. Congress wrote this very applicant-favorable law to enable churches to utilize foreign workers to help their cause; for example, the Irish parish priest. FSOs have very narrow grounds on which to reject such cases. The result has been the entrance to the United States of hoards of little-investigated imams and other Muslim “religious persons” who are actually shills for Wahabbi Islamic Fascism working at, among other places, the King Fahd Mosque in Los Angeles. This visa class reflects the danger of our traditional love for religion; we are unable to recognize enemies in that guise, it seems.
Ls are for inter-company transfers. This was apparently intended by Congress to help giants like Microsoft or Nike to transfer their global executives from post to post. However, this sloppily-written law enables any old person to start a company in their host country, start a company in the United States and “transfer” oneself to the States. Again, FSOs have only very narrow grounds upon which to refuse such cases. This is the section the very savvy and knowledgeable use and it is not uncommon to see a person get an L visa who has been rejected for a tourist visa four or five times.
214(b) is a very important tool. Unfortunately, the Congress keeps adding visa classes for which it does not apply. Without the right legal tools, FSOs cannot properly do their jobs.
First, as Smiley correctly pointed out, the real sword in the Department’s arsenal is INA § 214(b). This section gives consular officers wide discretion and judgment in determining whether any given applicant overcomes the rebuttable presumption that the applicant is an intending illegal immigrant.
Some officers (and more than a few applicants) chafe over the seeming randomness in result, since officers apply the section according to a necessarily subjective standard, i.e. their individual judgment. However, such complaints miss the mark. The President has plenary power to exclude aliens from the United States and the FSOs who use 214(b) are doing no more than exercising that power, which has been delegated to FSOs through their direct Presidential commission (and Senate confirmation) and, specifically, in the consular commission, which is distinct and different.
Since, in any case, someone’s judgment is going to be exercised, it makes no sense to complain that one person’s judgment is different than another person’s. Of course they are. But, in general, the judgments we consular officers make daily do follow a general pattern which tracks the letter of the law closely. Good cases are obvious, and are generally approved; bad cases are obvious, and are generally denied. It’s in those tough middle-ground cases where officers and applicants find differing results. Let's look at a few cases to give you a flavor of what we deal with daily.
For example, say an applicant from New Pomeria (our favorite fictitious country) presents himself at the window. He works for IBM, graduated from the local version of Harvard, makes a salary much above the average, is married, with 3 children, and has 5 instances of prior travel, 2 with the family to Miami and 3 alone to IBM headquarters in NYC.
Any FSO will approve this guy under 214(b) barring other issues, such as a criminal record (you’d be surprised how many of these foreign elites drink and drive!) or other possibly adverse information. But, chances are, you approve this guy be he Romanian, Peruvian or Indonesian.
Now, let’s say the next applicant works at a hair salon cutting hair and also sells candy and drinks out of his home for extra income. He is single, low income, with no children. He has no prior travel.
This guy has weak economic ties and weak family ties to his country. It well may be that the guy honestly and truly wants to go visit his cousin for a few weeks and come home. As Americans, who experience the reality of illegal immigration at home daily, it is often hard to forget just how darn hard it is to move to a different country, learn a new language and make a new life, even if it is the richest country in the world. But, the sad fact here is that this applicant is unable to overcome the presumption inherent in 214(b) and, as a result, will not get a visa.
The next folks at the window are a family of four. Dad, Mom, Son and Daughter. Dad works for a large local retailer, makes an average salary which translates to only around $500 a month in dollars, and has worked there for 15 years. Mom works as a secretary, earns about half of what Dad does, and has worked there for 7 years. Son is in the most prominent public university, studying law. Daughter is still in the local equivalent of high school. The family has no prior travel except for a weekend to a neighboring country.
Here is where it gets interesting. What does one highlight? The fact that they are low income by US standards and would have no family ties if they all travel together? Or the fact that, by local standards, they are a solid middle-class family with good jobs and have shown great social stability?
You make the call: let’s see what you come up with in the Comments section.
That issue aside, the most critical matter that Congress needs to address in the realm of immigration law are the visas for which 214(b) does not apply: Hs, Rs, and most importantly, Ls.
Hs are for foreign workers. An employer petitions DHS for the foreign worker and DHS allegedly investigates whether or not the petition should be granted. In fact, as any FSO on the Line will tell you, DHS rubber-stamps these and gets them off their backs. Under the law, however, FSOs have no authority whatsoever to reject these applicants. The only tool we have with these is if we find something the applicant left out of their original petition to DHS. At that point, we can return it for re-adjudication. However, since specialized lawyers draft the bulk of H petitions, there usually isn’t any wiggle room for the FSO to use to reject. As a result, this whole class of applicants pass to the U.S. with very little scrutiny.
Rs are for religious workers. Congress wrote this very applicant-favorable law to enable churches to utilize foreign workers to help their cause; for example, the Irish parish priest. FSOs have very narrow grounds on which to reject such cases. The result has been the entrance to the United States of hoards of little-investigated imams and other Muslim “religious persons” who are actually shills for Wahabbi Islamic Fascism working at, among other places, the King Fahd Mosque in Los Angeles. This visa class reflects the danger of our traditional love for religion; we are unable to recognize enemies in that guise, it seems.
Ls are for inter-company transfers. This was apparently intended by Congress to help giants like Microsoft or Nike to transfer their global executives from post to post. However, this sloppily-written law enables any old person to start a company in their host country, start a company in the United States and “transfer” oneself to the States. Again, FSOs have only very narrow grounds upon which to refuse such cases. This is the section the very savvy and knowledgeable use and it is not uncommon to see a person get an L visa who has been rejected for a tourist visa four or five times.
214(b) is a very important tool. Unfortunately, the Congress keeps adding visa classes for which it does not apply. Without the right legal tools, FSOs cannot properly do their jobs.
