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Information on Consulates’ use of 221(g) refusals

Section 221(g) of the INA allows consular officers to issue a temporary refusal of a visa petition in cases where an otherwise eligible visa applicant is missing a specific document, or in case where a consular officer concludes that additional security clearance measures are warranted. Consular officers utilize 221(g) to allow applicants the opportunity to supplement their applications to overcome a visa denial.  Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.  
In practice, the following are some situations that often give rise to a 221(g) refusal: 
1. Additional support documents are required, such as proof of local employment; 
2. An applicant is employed in a field listed on the Technology Alert List and the consular officer requests a Visas Mantis Security Advisory 
Opinion (“SAO”). (Common in India, China and elsewhere where applicants are advised that their applications require “administrative processing.”) 
3. The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility. 
4. There are no empty visa pages in the applicant’s passport, or the applicant’s photograph is of bad quality.
5. Applicant’s PIMS profile has not been updated.
A consular officer, upon refusing an application under 221(g), will commonly provide the applicant with a refusal letter.  However, it is possible that an applicant may be temporarily refused under 221(g) and not know it.  
The use of 221(g) is growing extremely common; the US Department of State has suggested that such refusals are overused by consular officers.  According to the Report of the Visa Office, in FY 2008 a staggering 589,000 221(g) refusals were issued against nonimmigrant visa applications.  About 87% of these were eventually overcome and visas were issued.
221(g) impacts subsequent visa applications because a client must indicate yes to the DS form question, “Have you ever been refused a US Visa?”.  Even a 221(g) that was caused by something as insignificant as a PIMS database issue is still considered, technically, a refusal.

Advance Copy of DOS Final Rule on Exchange Visitor Program for Au Pairs

[BILLING CODE: 4710-05]
DEPARTMENT OF STATE
22 CFR Part 62
RIN: 1400-AC48
[Public Notice: 6566]
Exchange Visitor Program – Au Pairs
AGENCY: Department of State.
ACTION: Final Rule.
SUMMARY: On June 19, 2008, the Department of State published an interim final rule
to revise existing regulations and thereby permit qualified au pairs to participate again in
the au pair program after completing a period of at least two years of residency outside
the United States following the end date of his or her initial exchange visitor program.
The regulations contained in the interim final rule are adopted without change.
DATES: The interim rule published at 73 FR 34861, June 19, 2008 is adopted as final
without change effective [INSERT DATE OF PUBLICATION IN THE FEDERAL
REGISTER].

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant
Secretary, Office of Private Sector Exchange, U.S. Department of State, SA-44, 301 4th
Street, SW, Room 734, Washington, DC 20547; or email at jexchanges@state.gov.
SUPPLEMENTARY INFORMATION: On June 19, 2008, the Department of State
published an interim final rule with request for comments whether to allow a foreign
national who previously participated in the au pair program to repeat the program. One
comment was received in response to the document that had no relevance to the rule.
The Department has determined that an au pair who has successfully completed the au
pair program may repeat program participation provided that he or she has resided
outside the United States for a period of at least two years after the completion of initial
participation in the au pair program (including the educational component requirement)
and is within the regulatory age range for eligibility. An au pair who has previously
participated is likely to be more familiar with the American culture (thereby quickly
overcoming cultural challenges), is a proven successful caretaker, and will be able to
build on the skills previously acquired.

For the foregoing reasons, the Department is promulgating the interim final rule as a
final rule.

REGULATORY ANALYSIS

Administrative Procedure Act

The Department has determined that this final rule involves a foreign affairs function
of the United States and is consequently exempt from the procedures required by 5
U.S.C. 553, pursuant to 5 U.S.C. 553(a)(1).
Small Business Regulatory Enforcement Fairness Act of 1996
This rule has been found not to be a major rule within the meaning of the Small
Business Regulatory Enforcement Fairness Act of 1996.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Since this rulemaking is exempt from 5 U.S.C. 553, and no other law requires the
Department to give notice of proposed rulemaking, this rulemaking also is not subject to
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive Order 13272, section
3(b).
Executive Order 12866, as amended
The Department of State does not consider this final rule to be a “significant
regulatory action” under Executive Order 12866, as amended, § 3(f), Regulatory
Planning and Review. In addition, the Department is exempt from Executive Order
12866 except to the extent that it is promulgating regulations in conjunction with a
domestic agency that are significant regulatory actions. The Department has nevertheless
reviewed this rule to ensure its consistency with the regulatory philosophy and principles
set forth in that Executive order.
Executive Order 12988
The Department has reviewed this final rule in light of sections 3(a) and 3(b)(2) of
Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal
standards, and reduce burden.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires
agencies to prepare a statement before proposing any rule that may result in an annual
expenditure of $100 million or more by State, local, or tribal governments, or by the
private sector. This final rule will not result in any such expenditure, nor will it
significantly or uniquely affect small governments.
Executive Orders 12372 and 13132
This Final Rule will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the distribution of
power and responsibilities among the various levels of government. Therefore, in
accordance with § 6 of Executive Order 13132, it is determined that this rule does not
have sufficient federalism implications to require consultations or warrant the preparation
of a federalism summary impact statement. The regulations implementing Executive
Order 12372 regarding intergovernmental consultation on Federal programs and activities
do not apply to this regulation.
Paperwork Reduction Act
This Final Rule does not impose any new reporting or recordkeeping requirements
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 62
Cultural exchange programs, reporting and recordkeeping requirements.
PART 62 — EXCHANGE VISITOR PROGRAM
Accordingly the interim rule amending 22 CFR part 62 which was published at 73 FR
34861 on June 19, 2008 is adopted as final without change.

March 30, 2009.
(Date) Stanley S. Colvin,
Deputy Assistant Secretary,
Office of Private Sector Exchange,
Bureau of Educational and Cultural Affairs,
Department of State.

DOS Publishes Final Rule on Exchange Visitor Program Fees


[Federal Register: November 1, 2007 (Volume 72, Number 211)]
[Rules and Regulations]
[Page 61800-61801]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01no07-4]

—————————————


DEPARTMENT OF STATE


22 CFR Part 62


RIN 1400-AC38


[Public Notice 5977]


Exchange Visitor Program–Fees and Charges for Exchange Visitor Program Services


AGENCY: Department of State.


ACTION: Final rule.


—————————————


SUMMARY: On June 22, 2007, the Department of State published a Proposed Rule to revise its regulations regarding fees and charges for Exchange Visitor Program services. These proposed regulations are adopted without change. The fees permit the Department to recoup the cost of providing such Exchange Visitor Program services.


DATES: Effective Date: This rule is effective December 3, 2007.


FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Director, Office of Exchange Coordination and Designation, U.S. Department of State, SA-44, 301 4th Street, SW., Room 734, Washington, DC 20547; 202-203-5096 or e- mail at jexchanges@state.gov.


SUPPLEMENTARY INFORMATION: The Department published a proposed rule, Public Notice 5837 at 72 FR 34419-34424, June 22, 2007, with a request for comments, removing regulations presently set forth at 22 CFR Part 62, Subpart H–“Fees”, Sec. 62.90 and adding a new Sec. 62.17 (“Fees and Charges”) containing all of the fees and charges for Exchange Visitor Program services. The rule was discussed in detail in Public Notice 5837, as were the Department’s reasons for the other changes to the regulations. The Department received eight comments and is now promulgating a final rule with no changes from the proposed rule.


Comment Analysis


The Department received eight comments. One was from a private organization, and due to rising costs found the new fees wholly acceptable. One comment had no relevance to the proposed rule. Six comments were from academic institutions that opined that the new fees may prove problematic due to their institutional budget cycles. The Department is of the opinion that the new redesignation fee of $1,748, due every two years, imposes little or no hardship on the U.S. higher education community and notes that only six of more than 900 such institutions responded to this notice.


Regulatory Findings


Administrative Procedure Act


This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553.


Regulatory Flexibility Act/Executive Order 13272: Small Business.


This rule is not subject to the notice-and-comment rulemaking provisions of the Administrative Procedure Act or any other act and, accordingly it does not require analysis under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) and Executive Order 13272, section 3(b).


The Unfunded Mandates Reform Act of 1995


Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.


The Small Business Regulatory Enforcement Fairness Act of 1996


This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104- 121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets.


[[Page 61801]]


Executive Order 12866: Regulatory Review


The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of the proposed regulation justify its costs. The Department does not consider the rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order, since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.


Executive Orders 12372 and 13132: Federalism


This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.


Executive Order 12988: Civil Justice Reform


The Department has reviewed the proposed regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards and reduce burden.


Paperwork Reduction Act


This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.


List of Subjects in 22 CFR Part 62


Cultural Exchange Programs.


Accordingly, 22 CFR part 62 is amended as follows:


PART 62–EXCHANGE VISITOR PROGRAM


1. The Authority citation for part 62 is revised to read as follows:


Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451-2460; Pub. L. 105-277, Div. G, 112 Stat. 2681-761 et seq.; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168; Pub. L. 104- 208, Div. C, 110 Stat. 3009-546, as amended; Pub. L. 107-56, Sec. 416, 115 Stat. 354; and Pub. L. 107-173, 116 Stat. 543.


2. Section 62.17 is added to read as follows:


Sec. 62.17 Fees and charges.


(a) Remittances. Fees prescribed within the framework of 31 U.S.C. 9701 must be submitted as directed by the Department and must be in the amount prescribed by law or regulation.


(b) Amounts of fees. The following fees are prescribed for Fiscal Years 2008-2009 (October 1, 2007–September 30, 2009):


(1) For filing an application for program designation and/or redesignation (Form DS-3036)–$1,748.


(2) For filing an application for extension beyond the maximum duration, change of category, reinstatement, reinstatement-update SEVIS status, ECFMG-sponsorship authorization, and permission to issue–$246.


Subpart H [Removed]


3. Remove Subpart H consisting of Sec. 62.90.

Dated: September 20, 2007.
Stanley S. Colvin,
Director, Office of Exchange Coordination and Designation, Bureau of Educational and Cultural Affairs, Department of State.
[FR Doc. E7-21472 Filed 10-31-07; 8:45 am]

BILLING CODE 4710-05-P

Celebs bend visa lines like Beckham

Via Miami Herald.com

Accommodating U.S. State Department officials bend over backward to grant visas to elite figures in sports, science, arts, education and business.

International
soccer star David Beckham and wife Victoria, formerly Posh Spice of the
Spice Girls, don’t wait months or years to enter the United States
legally.

Beckham’s status, bankroll and his attorney see to that. He receives
approval for his visa within two weeks. Accommodating U.S. State
Department officials grant him after-hours appointments and have asked
him to pose for photos.

As an ”alien of extraordinary ability,” Beckham is eligible for an
O-1 work visa reserved for elite figures in sports, science, arts,
education and business.

These and companion visas for family and support personnel have no
caps on the number who can arrive. Their numbers have more than doubled
over the past decade.

Meanwhile, specialty workers with four-year degrees can’t always
bend the bureaucracy like Beckham. Demand for visas from these workers,
with professions such as computer programming, engineering and
accounting, has surged. But the cap, briefly raised a few years ago,
remains at 65,000 — what it was in 1992. The 2007 cap was filled May
26, a record four months before the fiscal year begins.

Currently, Congress is debating whether to increase these visas to
help relieve the backlog, as well as granting legal status to some of
the estimated 12 million illegal immigrants.

Immigration ”law is really geared toward helping the rich and
famous,” says David Whitlock, a partner who heads immigration practice
at Fisher & Phillips in Atlanta.

Most industrialized countries have an immigrant pecking order, notes
Alan Gordon, a Charlotte, N.C., immigration lawyer who recently helped
a Canadian racing phenom enter the country.

DEPP SKIPPED LOTTERY

”How did Johnny Depp get to live in France? Did he go through a
lottery system?” asks Gordon. “No. It’s because he’s spending money.”

Indeed, countries have always welcomed the elite.

”And maybe rightly so,” says Steve Hader, a lawyer with the
Charlotte office of Moore & Van Allen who helped set up Beckham’s
upcoming visit to the United States. “Maybe you want the best and the
brightest.”

The Beckhams stand to make money on their upcoming summer trip, so
they are required to secure work visas, not tourist credentials. He
launched a youth soccer academy in Los Angeles last year, with the hope
of identifying talent to compete for U.S. teams on the world stage.

Victoria has a fragrance and clothing line ”and still performs,” Hader says.

Some 11,960 esteemed scientists, doctors, musicians, professors,
athletes and captains of industry and their family and support
personnel arrived in 2005, up more than 145 percent since 1995,
according to the State Department’s Bureau of Consular Affairs.

Hader has prepared O-1 visas for A-list singers, actors, actresses,
scientists and even a celebrity chef. Client confidentiality precludes
him from revealing names. Beckham gave the OK because he wants the
press for his academy.

O-1 applicants must be international superstars in their
professions. The State Department recognizes Academy Awards, peer
adulation, press coverage in ”major newspapers,” and/or ”a high
salary . . . in relation to others in the field,” among other factors.

Beckham plays for the Spanish club Real Madrid and is captain of England’s national team in this year’s World Cup.

Beckham was memorialized in the 2002 movie Bend It Like Beckham
for his signature long kick, with the ball curving in flight. The fact
Beckham is married to one of the Spice Girls is an added bonus, or
curse, depending on which side of the paparazzi you’re standing.

Continue reading

Consular processing for B, F and J nonimmigrant visa applicants

Section 214(b) of the Immigration and Nationality Act (INA) is the basis for a substantial number of denials of nonimmigrant visa applications at the consular level.  It reads;“Every alien shall be presumed to be an immigrant until he/she establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to reside in America.  It is the burden of each visa applicant to demonstrate that this is not the case – that they only intend to visit America for a short duration. In qualifying for a B (Visitor) F (Student) or J (Exchange Visitor) visa, an applicant must demonstrate compliance with this section of the law.  (Note that these requirement do not apply to H or L Visa holders who can maintain ‘dual-intent’).

Consular officers have the last word in deciding who may enter the US.  They begin by evaluating each applicant for a non-dual-intent visa (B, F, J among others) to determine whether the applicant has strong ties abroad.  Some examples of ties can be a job, a house, a family, and a bank account. These ties bind an applicant to their home country and demonstrate that they will return after the trip to America. Despite the fact that consular officers attempt to provide a case-specific evaluation, they have limited time allotted to each client. It is imperative that the applicant have a well documented and organized petition which demonstrates the strength of the case by providing evidence of strong ties. Unfortunately, as you can imagine, these requirements are somewhat harder to prove for younger applicants, or for those applicants who have a Green Card pending (which manifests a future intent to abandon the home country and reside in the US).

The applicant should also document how they will support themselves financially for the visit and why they are visiting the United States.  Temporary trips of a short duration, for a specified period of time – with clearly defined start and end dates (such as a marriage, education, graduation or a religious event) are more likely to be approved. Remember that an invitation letter and evidence of funds of the American ‘sponsor’ are of limited benefit to the applicant – the consular officer is mainly concerned with the qualifications of the applicant themselves.

An applicant who has been refused can attempt to enter the US again since a denial under section 214(b) is not permanent, however, the more times an individual is turned down the harder it becomes to become eligible for subsequent approvals. The consular officer will only reconsider a case if an applicant can show additional evidence of ties outside the United States. The applicant’s situation must have substantially changed since the last application. Demonstration of strong ties is still key.

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