Consular Processing Blog

Communist Party Membership and Consular Processing

noreply@blogger.com (John Roth) — Wed, 06 Jan 2010 15:09:00 +0000

Many people believe that recent Communist Party membership will unavoidably lead to a lengthy delay in visa issuance after the Consular interview. This is not necessarily the case. Recently we helped a client obtain a K-1 visa at the Guangzhou U.S. Consulate even though she was still a member of the Chinese Communist party on the day of the interview. We had helped clients in the past obtain visas who had left the Party months earlier, but this was our first attempt at a visa for a beneficiary who was still a CCP member when interviewed (although she was in the process of letting the membership lapse). Because this was a particularly challenging case, I asked a young attorney on my staff, Laurie Wu¹ to research and write a legal memorandum on the applicable standards for review in such cases, and we used these results to counsel our client on how to present her Communist Party membership during the Consular interview. The beneficiary fiancee's visa was approved on the day of the interview. The Consulate was apparently convinced by our presentation that the beneficiary's participation was "non-meaningful", and thus they did not feel the need to order a Security Advisory Opinion from the State Department (which would have delayed visa issuance by several weeks). So, the visa could be approved immediately. I attach Laurie's memorandum hereto for the benefit of those struggling with similar issues.

¹ Actually at the time Laurie was technically not yet an attorney as she was still waiting for her bar exam results; she has since learned that she passed the exam and has been admitted to the NJ bar.

Response to web blog query re Hong Kong processing

noreply@blogger.com (John Roth) — Thu, 15 Oct 2009 02:20:00 +0000

Anonymous says:

John, I remember you telling me NOT to get married in Hong Kong back in April, but I "went with the herd" and did it anyway. Now people are saying that HK changed its policies and is being really tough with PRCs married in China. MY K-3 has been approved and CR1 should be approved soon (did electronic processing), but I'm scared to death of HK. Should I write them a letter saying I wasn't trying to avoid Guangzhou when I got married in HK?

First, Hong Kong has not changed its policies. The same people are there as were there earlier this year and the policies are all the same, as far as we can tell. The problem with getting married in a third country in order to avoid the consulate of the beneficiary’s home country is that it is almost ALWAYS a bad idea. It’s a case of being “too clever by half”. I posted something about this earlier in the blog (see Filing K-3 at Third Country Post After K-1 Denial).

OK, what to do?

The first thing to understand is that you get only one bite at the apple. Either your I-130 petition will be reviewed or the K-3. Normally, you would pick the K-3 because it’s faster. My view is that you will have a better chance of approval if you withdraw the K-3 and just go to Guangzhou for the I-130 interview (plus the bonus that after entry on the I-130 you will not have to go through with the adjustment of status process, work authorization, travel document, another affidavit of support, etc. etc., which IS the case with the K-3). Count on being asked by the Consular Officer in Guangzhou why you married in Hong Kong rather than on the mainland (the more natural choice, since your wife’s relatives are more close at hand). Do NOT lie and claim you had some personal/romantic/practical/whatever reason to get married in Hong Kong if none exists, or if you are “puffing” a rather weak reason to get married there. As I’ve said before, consular officers may be misguided in their policies from time to time, but they are most definitely not stupid and they usually see through bogus reasoning and rationalizations. When asked, the best answer is the honest one – “some people were recommending it earlier this year as a way around the problems at Guangzhou, but in the end we decided not to go that route,” or something like this. Consular offices tend to be pleasantly surprised by such candor, and, by being frank even when it’s painful, you will have enhanced your credibility for other questions answered during the interview.

What a Difference a Year Makes

noreply@blogger.com (John Roth) — Tue, 29 Sep 2009 15:31:00 +0000

9/28/09 Guangzhou, China
I just finished an extraordinary meeting with the Immigrant Visa Unit Chief at the Guangzhou U.S. Consulate (by the way, the information that I had earlier posted on my blog that a new Unit Chief was appointed in late July 2009 was incorrect; it’s the same person who has been there for a year and a half).

For those who haven’t read the rest of this blog, I travelled to Guangzhou almost exactly a year ago to get some information about K visa processing after having been completely frustrated for over a year trying to figure out what the heck was going on here. At that time, the Unit Chief refused to meet with me, and the Consular Officer I spoke with during Petitioner Hour refused to give me any meaningful information about my cases or about visa processing in general.

This time, the Unit Chief met with me for about 20 minutes and we had a wide-ranging discussion that covered many subjects. The Unit Chief was astonishing forthright and helpful. She answered every single question I asked her.

Here are some of the highlights:

The Guangzhou Consulate considers the K-3 a visa type that has lost its usefulness due to changes in processing times of I-130 petitions (which have gotten substantially shorter since the K-3 law was passed) and the processing times for K-3 visas (which are much longer than was originally contemplated by the drafters of the K-3 visa law). The two processing times have virtually collided and the K-3 saves at most two months time now, while adding substantially to the administrative burden of the overseas consulates. She’s largely right on that score. The game is scarcely worth the candle now that I-130 cases are taking less and less time and K-3 times remain stagnant. This disparity will get even less as petitioners opt for electronic processing of the I-130, the Unit Chief points out. Further, she reports that there’s an effort underway to change DHS policy so that K-3 petitions cannot proceed from the NVC to the consulate/embassy until the I-130 has also arrived at the NVC and has finished processing. This change, if implemented, this will further diminish the usefulness of the K-3 petition.

The Unit Chief was also refreshingly candid about the fact that the Consulate can and does make mistakes. She said this was particularly true in 2008 as the Consulate sought to work down the huge backlog it inherited from 2007. She says that the backlog now is zero and the Consulate is now current in its processing. That’s probably correct, too. In our experience, prior to 2008 petitioners and beneficiaries had to wait seven to eight months from CIS approval to interview date. Now it’s four to five months on average.

Attorneys are now allowed to make an inquiry about one specific case per Petitioner Hour meeting, although there’s no limit to the number of general questions. I asked the UC about the specifics of one particularly puzzling revocation case from 2008 (for which we currently have a K-3 petition pending), and she read to me several of the consular officer’s notes on the case. We therefore have a better understanding about what we need to do to make the K-3 interview a success.

There were other things she revealed, but I’m not sure I’m at liberty to discuss them. I want to check before posting.

One of the most surprising things that occurred was that te UC actually answered my question about what percentage of K visa beneficiaries are approved on the day of the interview (that is, a “pink sheet” rather than a white or blue sheet). She said “about 50%”. This was a higher number than I expected and shows that the earlier optimism that a new Consul General would substantially reduce visa refusals may have been premature. Our impression was that in the weeks after the new CG appeared at post the IV unit was approving a substantial majority of K visa cases on the first day. During the last six weeks, though, we’ve noticed an increase in the number of petitioners contacting us regarding cases returned to CIS by GUZ with a recommendation for revocation. So there’s obviously still work to be done shaking the Consulate from its skepticism about Chinese-American romances.

I’m optimistic, though, because better communication between the Consulate and affected parties (and it could scarcely be worse than it was until only recently) can help the Consulate better appreciate how authentic most couples are and to realize that a lot of good couples are getting caught in the Consulate’s overly broad fraud profile net.

One amusing final note - just before I left the meeting the Unit Chief ardently stated “We’re not the enemy, you know!”. I’m guessing she read my 3/15/09 memo. OK, I can let bygones be bygones if there's real change at Guangzhou.

Senate Confirms Jon Huntsman, Jr. as U.S. Ambassador to China

noreply@blogger.com (John Roth) — Sat, 08 Aug 2009 18:14:00 +0000

This Friday the U.S. Senate voted unanimously to confirm Utah governor Jon Huntsman as ambassador to China.

Sen. Orrin Hatch (R-Utah) issued the following statement Friday after the Senate confirmed Utah Governor Huntsman as U.S. ambassador to China:

“I am very pleased that the United States Senate recognized the tremendous qualities and leadership Governor Jon Huntsman will bring to the position of Ambassador to China. This position is of extreme importance to our nation and to the international world because of China’s continuing role in the global economy, and on the political international state. I look forward to great things from now Ambassador Huntsman, and have every confidence that he will continue to exemplify the leadership he demonstrated at the helm of our state, in a nation of great importance across the globe.”

New IV Unit Chief in Place in Guangzhou

noreply@blogger.com (John Roth) — Thu, 30 Jul 2009 03:51:00 +0000

The new Immigrant Visa Unit Chief is also in position and some changes in policy are already clear to those in the building. Will follow with more later....

New Consul General in Guangzhou

noreply@blogger.com (John Roth) — Thu, 30 Jul 2009 03:23:00 +0000

On July 24, 2009, Brian L. Goldbeck, a career foreign service officer, assumed the duties of U.S. Consul General in Guangzhou, China. See GUZ web site announcement.

Huntsman Vote Delayed a Week

noreply@blogger.com (John Roth) — Wed, 29 Jul 2009 15:14:00 +0000

The Salt Lake Tribune reported yesterday that Ambassador-Designee John Huntsman Jr.'s confirmation as U.S. Ambassador to China has been delayed for a week by the Senate Foreign Relations Committee. The reason cited in the Tribune article is that "the paperwork is still being compiled".

Hunstman Expected to Move to Beijing by mid-August

noreply@blogger.com (John Roth) — Sat, 25 Jul 2009 16:04:00 +0000

7/23/09 - The Salt Lake Tribune reports that Governor Huntsman hopes to move to Beijing by mid August.

Ambassador Designee Huntsman Appears Before Senate Foreign Relations Committee

noreply@blogger.com (John Roth) — Sat, 25 Jul 2009 15:28:00 +0000

Governor Jon Huntsman, Jr., President Obama's nominee to be the next U.S. Ambassador to Beijing, China, testified before the Senate Foreign Relations Committee yesterday as part of his confirmation process (see his statement). He is expected to be confirmed by the full Senate next week.

We are ardently hoping that all the grand talk about "human rights" will extend to U.S. citizens with Chinese wives, fiancees, and relatives. I am continuing to press this issue with the future Ambassador.

John Roth's Guangzhou Memo #1 Article on ILW.COM for June

noreply@blogger.com (John Roth) — Thu, 23 Jul 2009 16:12:00 +0000

Guangzhou U.S. Consulate Non-Compliance With State Department Rules For Processing Marriage Based Visa Applications by John Roth was the #1 most accessed article/link on ILW.com for June 2009.

See Top Links on ILW.com June 2009.

K-3 Visa Approved in Guangzhou After K-1 Sent Back for Revocation

noreply@blogger.com (John Roth) — Fri, 17 Jul 2009 22:15:00 +0000

We got some great news yesterday. One of the cases I cite in my Guangzhou complaint memo - a K-1 case where the beneficiary had very poor English skills - was just approved as a K-3 visa. The case was interviewed as a K-1 in mid-August 2009. On my advice, the client went back to China in October '09 and married his fiancee. The I-130 petition was submitted on 2/24/09. The K-3 petition was submitted on 3/10/09. The K-3 interview occurred on 7/16/09. It was approved at the end of the interview. The wife and her daughter will soon arrive in the U.S.

K-3 Visa at a Third Country Foreign Post

noreply@blogger.com (John Roth) — Sun, 28 Jun 2009 13:53:00 +0000

I've received numerous inquiries over the last few months asking whether the best way to avoid the difficulties with the Guangzhou Consulate is to get married outside China and file for a K-3 visa at the "third country post". The recent email reply I've placed below well encapsulates my view on the subject:

Gerry,

I’ve always steered my clients away from the idea of getting married in Hong Kong or Thailand or some other third country as the way to get around the problems with Guangzhou. None of my clients have done it, or will do it, if I have anything to say about it. Now we are hearing about Chinese (PRC) K-3 spouses running into big problems with processing their K-3s in Hong Kong. There are several reasons why processing outside of China is a bad idea. First, as general proposition, consular officers or less likely to approve a visa in circumstances of uncertainty. The foreign 3^rd country consular officer is going to know less about the language, culture, and most importantly, the documents and fraud problem in the home country than the local consular officers do, and thus he or she will tend to err on the side of caution - requesting additional evidence or even returning the file to the USCIS for revocation.

Another thing - whatever you might think of consular officers, they are not fools. They know when someone is “forum shopping” and they may well draw an inference that your case is weak and wouldn’t withstand the scrutiny of the more savvy home country consulate. Consular officers also do not live in a vacuum in their little foreign posts. They rotate assignments often (and they might be in the home country post next year - imagine the camaraderie!). Indeed, they tend to be loyal to a fault one to the other. Of course, they know what’s going on in Guangzhou, and are not likely to want to undermine their colleagues (and you can bet they will be in touch with Guangzhou if they start seeing a lot of these cases – what do you think THEY will say? “Oh, go ahead and approve it!”). If anything they’re likely to believe that the home country consular officers understand the locals better than they do, and therefore they’re likely to be skeptical of the K-3 spouse standing before them.

There are practical difficulties with this strategy, as well. One obvious negative consideration is the cost and expense of getting married outside your fiancee's local environment. Then [fiancée name deleted] will have to travel back to Thailand or Hong Kong at some considerable expense for the K-3 interview. And what happens if she gets a request for additional evidence, and the foreign consulate wants a second interview (not a rare occurrence)? She can be stuck far from home for weeks or months (and your buddy on the web site who talked you into this isn’t going to be footing the bill, you can bet on that!). An even more serious problem is that, under current rules, the pending I-130 petition will also be sent back to join the K-3 petition. In the current environment, betting on the foreign post is betting all of your capital. You won’t get a second shot at the home country consulate.

Finally, no one knows what the posts are going to look like in six months. Myself, I’ll take the devil I know over the devil I don’t.

In my mind, this marry in another country idea is a gimmicky solution that appeals to people who want a simple, neat solution to a difficult, complex problem. I’m not saying they are all going to fail, not at all, but on balance my view is that you’re better off going to the home country with a well-prepared case than trying to beat the system with strategies that are more likely to fail than to succeed.

Guangzhou Complaint Memorandum Published Today on ILW.com

noreply@blogger.com (John Roth) — Tue, 23 Jun 2009 00:44:00 +0000

ILW.com today published my complaint memorandum about the Guangzhou U.S. Consulate as the featured article on its daily report of recent developments in immigration law. Every serious immigration attorney in the U.S. will likely read it (or at least be aware of it). This can only add to the pressure on the Guangzhou Consulate to reform its review standards.

Lately, the USCIS is issuing large numbers of Notices of Intent to Revoke (NOIR) for cases previously sent back to the USCIS with a request for revocation. The NOIRs spell out the reasons for the initial consular refusal to issue, and provide the petitioner and his/her attorney a chance to respond. This was the main goal of my memo, and is heartening news that things are trending in the right direction. Let's keep up the fight, though. We're not done here.

Attention Also Being Paid by CIS???

noreply@blogger.com (John Roth) — Thu, 11 Jun 2009 18:38:00 +0000

On April 9, 2009 the USCIS issued a fact sheet discussing revocation cases at CIS. See http://www.uscis.gov/files/article/FactSheet%20_VisaRevocations__9Apr09_.pdf. Coming just a few weeks after my complaint, it could indicate that the CIS is paying attention to the complaint as well. There's nothing really new in the memo, but the powers-that-be apparently feel the need lately to explain themselves.

Also, a couple of weeks ago my office received a Notice of Intent to Revoke on an I-130 petition that had been sent back to the CIS with a request to review/revoke just two months previously. The case was not a China case. It did include a detailed description of the Consulate's reasons for questioning the relationship, however, per the CIS guidelines. Right now I'm trying to learn from CSC whether this case is just a fluke or whether instead it represents a positive trend in processing revocation cases.

Attention Is Being Paid

noreply@blogger.com (John Roth) — Thu, 11 Jun 2009 18:17:00 +0000

I’ve been preoccupied lately with the recent move of my office to a location closer to New York City, so I apologize for not updating this blog in recent weeks.

Here’s the latest:

On Monday of this week I received an email from Governor Huntsman personally thanking me for “the background information" my memo provided him and promising to follow up. Upon reflection, I have decided not to discuss my future contact with Mr. Huntsman on this blog or publicly in any way, unless he gives me his prior consent. The future Ambassador will have to deal with a certain number of entrenched bureaucrats in Guangzhou, and if he agrees to have extensive discussions with me prior to his appointment, it could be interpreted by some as an implicit endorsement of my criticism of the Guangzhou Consulate. This could limit his willingness to speak with me at length. So, there won’t be any more public updates of this particular issue unless and until the Governor agrees to it in advance.

But this doesn’t mean that the shock troops out there should lessen their efforts to convince their Congressional representatives to side with reform at the Guangzhou Consulate. If anything we should all re-double our efforts to ensure that the future Ambassador will have the political cover he’ll need to bring real reform to immigrant processing at the Guangzhou U.S. Consulate. So, please keep fighting the good fight out there.

In another development, I received an email yesterday from an editor of ILW.com – a leading web portal for discussion of immigration law matters, and one that is read by virtually all immigration attorneys - asking for my permission to reprint my memorandum as an article on ILW.com’s site. I have agreed.

Contact with Governor Huntsman's Office

noreply@blogger.com (John Roth) — Thu, 21 May 2009 17:16:00 +0000

On Monday (5/18/09) morning I contacted Governor Huntsman's office and obtained the email address of his Executive Assistant. I sent her a letter I had prepared for Mr. Huntsman, as well as an internet link to my complaint memorandum.

Waiting for a reply....

Obama Nominates Jon Huntsman, Jr. as Ambassador to China

noreply@blogger.com (John Roth) — Sun, 17 May 2009 02:49:00 +0000

It's official- President Obama today nominated Governor Jon Huntsman, Jr. as his selection for U.S. Ambassador to China. I will begin in earnest Monday trying to secure a meeting. In any event, I intend to send him a copy of my complaint memorandum and supporting case histories.

New U.S. Ambassador to China?

noreply@blogger.com (John Roth) — Sat, 16 May 2009 14:07:00 +0000

Word is spreading in both Democratic and Republican circles that the next US Ambassador to China will be Utah Governor Jon Huntsman, Jr.

President Obama may appoint him as soon as today, Saturday, May 16.

I've been hearing about Mr. Huntsman as for many years through my involvement in the Republican Party politics and also through Wharton Alumni Affairs. He is widely respected as a man of conscience and integrity. I will see about getting a personal meeting with him as soon as the appointment is announced.

Reply from State Department

noreply@blogger.com (John Roth) — Thu, 14 May 2009 13:22:00 +0000

The State Department returned my complaint memorandum and supporting case histories by U. S. mail on Monday with an unsigned pro forma letter that is completely and totally unresponsive to the facts/arguments/criticisms cited in the memo. See reply. In effect, the government is saying with this letter: "we will do anything we want to regardless of what you, anyone else, or the law says.”

The only solution now is a political one. Everyone who cares about this issue has to get in the face of their congressional representatives and stay there until our elected representatives explain why the government seems to care infinitely more about the pain and suffering of foreign terrorists held in Guantanamo Bay than they do about U.S. citizens who are separated from their loved ones by an arrogant and unresponsive U.S. State Department. The abuses have been fully documented, and we have seen what the top people in the State Department think. Now is the time to escalate the issue fully into the political arena.

This same “smarter-than-thou” set in the government will soon be telling us what medical service we and our families can and can not have. The stakes couldn’t be higher. Join the fight. I will be doing my part but I can’t do it alone. My goal will be to make the performance of the Guangzhou U.S. Consulate an issue in the confirmation hearings of the next appointed Ambassador to China. It’s the perfect opportunity to lobby for change at Guangzhou. The Ambassador can make very substantial changes in immigrant visa processing. When I filed a complaint against the Warsaw U.S. Embassy in the late 90's that is very similar to the one filed against Guangzhou, the Ambassador contacted me through one of his top aides, promised significant changes in personnel and organization, delivered on all his promises, and the Warsaw Embassy went from being one of the worst in the world to being one of the best in the world (and so remains).

So, speak up now, or forever be silent.

How to Cope With Guangzhou

noreply@blogger.com (John Roth) — Sun, 26 Apr 2009 12:16:00 +0000

We've received literally hundreds of phone calls and emails from folks who were delighted to see our firm's memo on the web. However, there was one unintended negative consequence of the memo as some people expressed concern that the situation in Guangzhou is so bad that they might never see their fiancée or wife again. Let me state emphatically that there is reason for hope; and this is true whether the Guangzhou Consulate changes its current policies or not. My office’s own experience over the last eight months will illustrate the point: we haven’t had a single full service case sent back by Guangzhou for revocation since August of last year (we had one case sent for revocation in December but it was a "Consulate Only" case; we realized only after the interview that the petitioner included documents with the I-129F petition that greatly damaged his case). This occurred during a time when all reports indicated that the Consulate had not changed any of its policies and that it was continuing to send a large percentage of it’s marriage-based cases back to the CIS with a recommendation for revocation. We’ve successfully completed 12 cases in this time period. What’s our secret? There is none. In fact we don’t believe there are any tricks, innovations or clever stratagems to beat this problem. There is just good, solid preparation. We improved our success rate through the following:

1. Increasing our understanding of what the Consulate was looking for in terms of red flags. The more cases we did, and especially after we started doing exit interviews of our Guangzhou interviewees, the more sophisticated we became. We have shared a good part of this knowledge with the world in my memo. Everyone who reads it has a better chance of avoiding a failed interview than they did in the past.

2. Careful issue-spotting from the outset of the case. In effect, we took what we learned in 1 above and applied it to our case intake, formulation of case strategy, and advice for clients about how to minimize any weaknesses or problems in the case.

3. Careful monitoring of the case as it develops and also of any changes in Guangzhou’s processing. In other words, it is essential to keep the benefits from 1 and 2 “fresh” throughout. Things can change over time.

4. Prepping the fiancee or spouse at length (and with a Chinese interpreter on the line regardless of the fiancee/spouse's Enlish fluency) to enhance her understanding of the potential pitfalls in the interview and to improve her confidence and calm going in.

Really, that's it.

Status of Complaint Memorandum: Still Waiting

noreply@blogger.com (John Roth) — Sun, 26 Apr 2009 12:00:00 +0000

So far there's been no reply from DHS to my memo.

We called called Janice Jacobs’ office two weeks ago and were told that they hadn't yet processed the memo because all mail arriving in the State Department these days is sent to a subcontracting firm in Maryland for processing and that, therefore, the State Department doesn’t see the mail for about four weeks. This was somewhat surprising since the State Department typically processes and replies to complaints within one week. I myself called three days later and spoke with a one of Janice Jacobs’ aides, who stated that he was aware of my complaint memorandum, and promised that a reply would be provided, although he didn’t specify when.

I was not troubled by this news, and fact it is at least partially heartening, since the memorandum appears to have achieved one of its prime objectives, which was to be “not manageable” by one of the State Department’s canned replies. My view is that DHS is probably stalling while they are trying to figure out what to do. It’s fortuitous that the Obama administration is currently searching for a new ambassador to China to replace Clark Randt, Jr. (who resigned from his post as Ambassador on the first day of the Obama administration). This increases the likelihood that high officials in the Obama administration are aware of the complaints, since they could scarcely be attempting to fill that post without an awareness of the current criticism of the Guangzhou Consulate.

When I receive a reply I will contact the State Department and ask them which part of the reply I might post on the blog. In any event, I’ll post at least the gist of the response on my blog.

Entire Complaint Now Online

noreply@blogger.com (John Roth) — Tue, 07 Apr 2009 21:21:00 +0000

The author of Case History #3 has agreed to add his story to our blog. We now have online the entire complaint package that was sent to the Department of Homeland Security on 3/17/09 (although some of the personal information has been blacked out). I present the whole set of documents below:

"Guangzhou U.S. Consulate: A National Disgrace. A Memorandum of Law and Fact by John F. Roth, Immigration Attorney"

Gaungzhou Memorandum Appendices

Case History#1 (redacted by petitioner/author for public viewing). The file is very large (9.8Mb), so be patient while downloading.

Case History #2 (redacted by petitioner/author for public viewing).

Case History #3 (redacted by attorney for public viewing).

Case History #4 (as submitted).

Case History #2 Added

noreply@blogger.com (John Roth) — Wed, 25 Mar 2009 22:00:00 +0000

Attached for viewing/downloading in Case History #2.

Case History #4 Added

noreply@blogger.com (John Roth) — Wed, 25 Mar 2009 02:34:00 +0000

Attached for view/download is Case History #4.

Case History #1 Added

noreply@blogger.com (John Roth) — Tue, 24 Mar 2009 09:02:00 +0000

Attached is Case History#1 (redacted by petitioner/author for public viewing), which was appended to my memorandum about the Guangzhou U.S. Consulate. The file is very large (9.8Mb), so be patient while downloading.