FAM Update Could Make H1B Visa “Stamping” More Challenging17 Oct 2018
The U.S. Department of State (DOS) has recently updated the Foreign Affairs Manual (FAM) to provide additional guidance to U.S. consular officers on the role they should play in confirming the validity of a petition being used to apply for a visa. The updated guidance appears to encourage consular officers to take a more active role in verifying the information provided in a petition, especially in the context of H1B visa applicants.
USCIS, Not DOS, Is Responsible for Adjudicating Petitions
The FAM, which provides official guidance to U.S. consular officers, already contains instructions explaining that it is the responsibility of the U.S. Citizenship and Immigration Services (USCIS) to adjudicate petitions, not consular officers. For I-129 based petitions (e.g., H1B, L-1), the FAM specifically instructs officers that they should not request additional evidence or send the approval back to the USCIS for reconsideration unless pertinent information is uncovered during the visa interview process that was not available to the USCIS when the petition was approved. In fact, the FAM specifically states that “the large majority of approved H petitions are valid…” and that “[d]isagreement with USCIS interpretation of the law or the facts … is not sufficient reason to ask USCIS to reconsider its approval of the petition.”
Consular Officers Feel Compelled to Issue 221(g) Refusals
Even with the above language, there have long been problems with consular officers essentially readjudicating petitions, especially for H1Bs, when applying for a nonimmigrant visa “foil” (commonly referred to as a “stamp”). Officers routinely issue 221(g) refusals, using the visa interview as an opportunity to ask for additional documentation, despite the fact that the USCIS had found the documents presented to be sufficient to approve the petition. Consular officers will also sometimes take the extra step of returning the petition to the USCIS for re-review. Still, at least on its face, the above language in the FAM discourages consular officers from actively trying to re-perform the job of a USCIS officer.
New Subchapter on Consular Returns
The updated section of the FAM, entitled “Confirming Petition Validity” sets a different tone. It encourages officers to “… confirm during the visa interview that the facts as stated in the petition are true, and that nothing has changed …” It reminds officers that the U.S. Department of Labor (DOL), which processes labor condition applications (LCAs) required for filing H1B petitions, and the USCIS have, until that point, communicated with the petitioner exclusively in writing, and that the interview is the first opportunity for a U.S. immigration officer to interact with the beneficiary of the petition. Moreover, the update in the FAM asserts that consular officers, having lived and worked abroad, are better equipped to detect “exaggerations or misrepresentations in qualifications.”
The issue of consular officers readjudicating petitions has been a concern for many years. So, it certainly is possible that this update to the FAM simply directs consular officers to continue with a long-established practice. But, given the tone set by the Trump Administration, this updated language could lead to even more frustrations at U.S. consulates.
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