top hat globe.jpg

[Blogger's note:  Today's post is by guest columnist, John Klow.  John is one of the most knowledgeable private citizens who understands the inner workings of U.S. Customs and Border Protection.  In the post below, John elucidates the often opaque, behind-the-scenes process whereby an individual who is found inadmissible to the U.S. may apply for a temporary waiver, and, if the governmental stars are aligned, nonetheless be granted entry.  

Spoiler alert:  The government holds all the cards -- another reason why Congress should inject a dose of due process as it struggles to reform our immigration laws.]

Immigration Mystery Revealed:  The Occult Process behind Nonimmigrant Visa Waivers

By John B. Klow

 

Back in the days of the Immigration and Naturalization Service (INS), the immigration benefits and enforcement agency operated within the Department of Justice, processing of consular nonimmigrant waivers seemed to be pretty straight forward.

Applicants submitted their nonimmigrant visa applications at American consulates, and if an individual were found inadmissible to the U.S., consular officers, if so inclined, forwarded recommendations that a waiver of inadmissibility be granted to the overseas INS offices with jurisdiction to approve a waiver.  The process was transparent, but decisions could take frustratingly long times — often months, sometimes stretching to a year or more.  Lengthy delays were attributable to the competing priorities assigned to the particular INS office overseas.  Also, with this sort of decentralized decision-making, there was at least a perception of inconsistency of adjudications.

With the creation of the Department of Homeland Security on March 1, 2003, changes came.  U.S. Customs and Border Protection (CBP) decided to keep the nonimmigrant waiver decision-making process within the inspections program as it had rested in the INS days.  The reasoning was that the decision of whom to admit at ports of entry was CBP’s, and CBP should not have to go to another agency for that determination.  Since the immigration inspection program transferred to CBP, so also did nonimmigrant waiver decision-making authority.

CBP established a single office to decide all nonimmigrant waiver cases, the Admissibility Review Office, now located in Hearnden, VA.  Centralization provided a dedicated, experienced resource that could be focused on a single (or at least primary) priority to provide consistent decision-making.

For consular nonimmigrant waivers, cases are forwarded electronically from the consular officer to the ARO through the State Department’s Consular Consolidated Database (CCD) by means of the Admissibility Review Information Service (ARIS).  ARIS is entirely electronic (no paper), and works through secure Internet communication via the CCD.  For security reasons, there is no provision for outside parties to be part of the ARIS communication process.

The inability for attorneys or accredited representatives to be part of the ARIS communication between the consular officer and the ARO has led to some frustrations.

What gets referred to the ARO?

Only a favorable recommendation from the consular officer gets consideration by the ARO Director.  Under the Immigration and Nationality Act (INA), the Attorney General (now the Secretary of Homeland Security) may approve a recommendation from the Secretary of State or the consular officer that an alien be admitted temporarily despite inadmissibility.  In reality, this means that only a favorable recommendation gets consideration for approval.  Without a consular recommendation for admission, the ARO Director will return the consular officer’s referral through the U.S. Department of State Visa Office, asking the Visa Office to remind the consular officer to not forward cases without a positive recommendation for approval.  (See, 9 FAM 40.301 N6.1 (b))

What gets forwarded with a favorable consular recommendation?

One of the frustrations expressed by immigration lawyers is that carefully prepared briefs are ignored by the consular officer and never forwarded for ARO consideration.  This is not an imaginary problem.  Briefs, and other documentation, must be scanned by the consular post into the CCD.  Scanning is labor-intensive, and utilizes valuable consular resource.  9 FAM 40.301 N2 a (3) clearly instructs that all supporting documents are to be scanned into the CCD; however, that does not always happen.  ARO staff may return the referral to post, requesting additional documentation, but are more likely to request records of conviction than attorney briefs.  Practitioners should use their best persuasive skills to urge the consular officers to scan important documentation into the CCD for ARO consideration.

Will the ARO approval be a blanket authorization for travel?

The INA requires that conditions be attached to each approval:  “The Attorney General shall prescribe conditions … to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.”  (INA 212(d)(3)(A).)  The prescribed conditions are clearly evident on the nonimmigrant visa, as they typically are expressed as the NI category authorized, number of admissions, and validity of the visa.

When is the consular recommendation forwarded?

Each post will have its own review process, before the case is finalized and forwarded to the ARO.  A busy post such as London (contributing roughly 20% of the world-wide total) may have several layers of review before the Chief of Consular Services will push the final send button to forward the case to the ARO.  Each layer of review takes some necessary time; occasionally a practitioner will find that a case that presumably was pending with the ARO has not yet left post.  Remember that the ARO Director has nothing to consider until he receives the referral through ARIS in the CCD.

Are there other delays?

9 FAM 40.301 N 6.2 describes other situations when a consular post may (or must) refer the case to the Visa Office for review.  Remember that any case referred to the VO must go through that clearance process before final referral to the ARO.

How can a visa applicant receive expedited action from the ARO?

The FAM advises that ARO decisions may take as long as 120 days.  The experienced practitioner probably recognizes that 120 days is a goal that may not always be realized, and should be prepared for longer processing times.  The FAM also advises that Expedited Action may be requested in truly meritorious cases.  (9 FAM 40.301 N7 a.)

Can an immigration lawyer communicate directly with the ARO?

Another expressed frustration is the lack of a direct communication channel with the ARO.  This is best explained by recognizing that the traveler’s sole application is the request for the nonimmigrant visa, pending before the consular officer.  It is the consular officer’s recommendation for a nonimmigrant waiver that is forwarded to the ARO Director, and the only communication about that recommendation is between the ARO staff and the consular officer.  Any attempt to communicate directly with the ARO Director is seen as an attempt to circumvent the direct communication between the consular post and the ARO through the secure process existing in ARIS and the CCD.  Any inquiries about processing should be directed to the consular post where the nonimmigrant visa application is pending.

Who makes the final decision?

Although the ARO Director makes the decision on the consular officer’s recommendation, the consular officer has the final decision on whether to issue the visa.  The ARO Director may authorize visa issuance, but the final decision rests with the consular officer and the Secretary of State.

Can visa applicants or their counsel find out why the ARO Director has denied a consular officer’s favorable recommendation?

Although the ARO historically has approved more than 90% of consular officers’ recommendations, some requests are denied.  Both the State Department and CBP are reluctant to disclose the ARO Director’s exact reasoning, even though FOIA requests.  The simple truth is that the ARO Director’s negative response, through ARIS in the CCD, will be terse, indicating “Denied”, and often advising only that “Risk of harm is too great if alien is admitted.

magician with cards.jpgMay a consular officer’s decision to not make a favorable recommendation be appealed?

Although there is no formal appeal process, a visa applicant or her attorney may insist that the consular officer refer the case to the Visa Office for an advisory opinion if a consular officer declines or refuses to make a favorable recommendation to the ARO.  (9 FAM 40.301 N6.2 a.)  After review, the Visa Office may concur with the consular officer’s decision and likewise decline to offer a favorable recommendation; in that instance, the nonimmigrant visa application is denied.  The applicant’s only recourse is to apply again, hopefully when circumstances are more in favor of approval.  Alternatively, the Visa Office may decide to make a direct recommendation for approval to the ARO Director.

What about an appeal of the ARO Director’s decision?

No appeal by the alien shall lie from an adverse decision made by a Service officer on the recommendation of a consular officer or other State Department official.”  8 CFR 212.4(a)(1), final sentence.  The question is – by what means could the NIV applicant appeal the denial of a consular officer’s recommendation to the ARO Director?  There has been no direct application submitted by the applicant to the ARO Director.  The only issue considered by the ARO Director is the consular officer’s recommendation.  The consular officer’s denial of the nonimmigrant visa application is subject to the doctrine of consular nonreviewability.

* * *

As can be seen, much about the mechanics of a nonimmigrant visa waiver is shrouded from the visa applicant and legal counsel.  Hopefully, this blog post has added some transparency to a process seemingly cloaked in mystery.