How to change the rules for consular processing?

[vtstang66 65]

First of all, mods please move this if it's not in the right place.  This is sort of piggy-backing on an earlier thread that I made, but that one wandered and got scattered a bit and hopefully this one gets straight to the point.

 

I'm trying to fully understand exactly what the rules are and who has the ability to change them and by what mechanisms.  I'm coming from the perspective of a CR1/IR1 petitioner but the "rules" I'm speaking of may apply to anyone getting a visa through a consular process - that is an interview/biometrics/visa execution at a U.S. consulate in their home country.

 

What I think I understand so far: 

• The INA (Immigration and Nationality Act) is the legal U.S. code that lays out all the immigration stuff - how many visas issued, how they're issued, eligibility, etc.  Found here.  INA 221 and 222 talk about application for and issuance of visas, and about consular interviews.
• The INA references "regulations," which turn out to be the Code of Federal Regulations, CFR, found here.  Section 42.62 mandates the personal appearance of the visa applicant in front of a consular officer.
• Furthermore, the Foreign Affairs Manual, FAM, section 504 gives the guidelines for the consular officer to conduct the interview.

 

Up to this point, please correct me if I've gotten anything wrong.

 

What I'm interested in is changing some of that language.  I don't believe it should be necessary, in the modern climate with modern technology and a pandemic, to require all applicants to appear personally.  Some provision should be made for remote interviews (such as Zoom), at least for some applicants (those without any flags for example).  The backlog at the consulates is half a million people, or years' worth at some consulates.  And it's getting longer.  The reason I'm trying to understand is because when I go to congress people and say "fix this," I'm infinitely more likely to get a result if I tell them exactly what the problem is, what they need to do, and how they need to do it, than if I leave that all up to them to figure out.

 

So my questions, finally:

1. Are all these things (INA, CFR, and FAM) laws that Congress must change?  Or are some of them internal agency policies, or something else?
2. If they aren't up to Congress, who would be able to change them?  Secretary of state?  President?  Other?
3. What's the procedure by which these laws/policies/other would need to be changed?
4. Am I missing anything else?  I know there are biometrics involved that can't be done over Zoom, but it seems like the interview is the main bottleneck so that's what I'm focusing on for now.

 

[Boiler 45,880]

Pass a bill in the House and the Senate and get the President to sign it.

[vtstang66 65]

1 minute ago, Boiler said:

Pass a bill in the House and the Senate and get the President to sign it.

I figured as much, just trying to figure out exactly what the bill should say.  I tried telling the congress folks to "pass a bill to fix this" and they assured me they would look into it while backing away slowly.

[igoyougoduke 1,672]

24 minutes ago, vtstang66 said:

I figured as much, just trying to figure out exactly what the bill should say.  I tried telling the congress folks to "pass a bill to fix this" and they assured me they would look into it while backing away slowly.

How about you work towards getting those 90 year old great grand grand congress men/women  who should be in retirement homes and probably think we are in 1920  out of the office than maybe the new younger folks will change the law to get zoom calls and face time audio calls to confirm interviews ? 

 

[C & D Guerrero 8]

3 hours ago, vtstang66 said:

First of all, mods please move this if it's not in the right place.  This is sort of piggy-backing on an earlier thread that I made, but that one wandered and got scattered a bit and hopefully this one gets straight to the point.

 

I'm trying to fully understand exactly what the rules are and who has the ability to change them and by what mechanisms.  I'm coming from the perspective of a CR1/IR1 petitioner but the "rules" I'm speaking of may apply to anyone getting a visa through a consular process - that is an interview/biometrics/visa execution at a U.S. consulate in their home country.

 

What I think I understand so far: 

• The INA (Immigration and Nationality Act) is the legal U.S. code that lays out all the immigration stuff - how many visas issued, how they're issued, eligibility, etc.  Found here.  INA 221 and 222 talk about application for and issuance of visas, and about consular interviews.
• The INA references "regulations," which turn out to be the Code of Federal Regulations, CFR, found here.  Section 42.62 mandates the personal appearance of the visa applicant in front of a consular officer.
• Furthermore, the Foreign Affairs Manual, FAM, section 504 gives the guidelines for the consular officer to conduct the interview.

 

Up to this point, please correct me if I've gotten anything wrong.

 

What I'm interested in is changing some of that language.  I don't believe it should be necessary, in the modern climate with modern technology and a pandemic, to require all applicants to appear personally.  Some provision should be made for remote interviews (such as Zoom), at least for some applicants (those without any flags for example).  The backlog at the consulates is half a million people, or years' worth at some consulates.  And it's getting longer.  The reason I'm trying to understand is because when I go to congress people and say "fix this," I'm infinitely more likely to get a result if I tell them exactly what the problem is, what they need to do, and how they need to do it, than if I leave that all up to them to figure out.

 

So my questions, finally:

1. Are all these things (INA, CFR, and FAM) laws that Congress must change?  Or are some of them internal agency policies, or something else?
2. If they aren't up to Congress, who would be able to change them?  Secretary of state?  President?  Other?
3. What's the procedure by which these laws/policies/other would need to be changed?
4. Am I missing anything else?  I know there are biometrics involved that can't be done over Zoom, but it seems like the interview is the main bottleneck so that's what I'm focusing on for now.

 

I believe you are exactly right. With the current situation it would be prudent for the State Department, President or Bureau of Consular affairs to change to rules or indicate a different former for adjudicating visas. What I do not understand is that the same rules do not apply, for example, in adjustment of status cases. These are being completed remotely, by phone, or simply submitting documents. 

What is interesting is, the people involved in these interviews have been admitted to the US on a conditional visa (2 years). Specifically in the case of IR1/IR2 visa categories, the spouses have been married for more than two years and therefore admitted without conditions and granted 10 year visas. What is the difference if the couple has spent two years together in the US or outside of the US? 

I’m just interested to understand the reasoning behind this. 

If you decide to present a case to congress. I would gladly support you. 

My spouse and I (married for 4 years, co- owners of a home, joint accounts, and lived together abroad for 5 years) have been awaiting an IR1 interview for 8 months. 

[C & D Guerrero 8]

The law specifically states:

h) In person interview with consular officer

Notwithstanding any other provision of this chapter, the Secretary of State shall require every alien applying for a nonimmigrant visa-

(1) who is at least 14 years of age and not more than 79 years of age to submit to an in person interview with a consular officer unless the requirement for such interview is waived-

(A) by a consular official and such alien is-

(i) within that class of nonimmigrants enumerated in subparagraph (A) or (G) of section 1101(a)(15) of this title;

(ii) within the NATO visa category;

(iii) within that class of nonimmigrants enumerated in section 1101(a)(15)(C)(iii) ³ of this title (referred to as the "C–3 visa" category); or

(iv) granted a diplomatic or official visa on a diplomatic or official passport or on the equivalent thereof;

(B) by a consular official and such alien is applying for a visa-

(i) not more than 12 months after the date on which such alien's prior visa expired;

(ii) for the visa classification for which such prior visa was issued;

(iii) from the consular post located in the country of such alien's usual residence, unless otherwise prescribed in regulations that require an applicant to apply for a visa in the country of which such applicant is a national; and

(iv) the consular officer has no indication that such alien has not complied with the immigration laws and regulations of the United States; or

(C) by the Secretary of State if the Secretary determines that such waiver is-

(i) in the national interest of the United States; or

(ii) necessary as a result of unusual or emergent circumstances; and

Maybe under “unusual or emergent circumstances” is where there is room in the law for Pandemic provisions and to clear the backlog? I’m no attorney but this could be the basis for argument with a congressional official or the Department of State.

 

There is no harm in presenting this in your argument 

 

 

[JeanneAdil 6,606]

12 hours ago, vtstang66 said:

I figured as much, just trying to figure out exactly what the bill should say.  I tried telling the congress folks to "pass a bill to fix this" and they assured me they would look into it while backing away slowly.

For over 20 possibly 30 years Congress has known there are issues with immigration  / they have yet to do anything 

anything would be to appoint a committee to study all issues and then propose a change /  this has not happened 

BTW    you might not like the changes they would propose

[SteveInBostonI130 3,477]

13 hours ago, vtstang66 said:

 

What's the procedure by which these laws/policies/other would need to be changed?

 

Schoolhouse Rock, I'm just a bill:

 

 

[neca 166]

When my friends and family ask why we have to wait for an in-person interview when everything is on Zoom, I tell them that it's probably because one could easily enough forge an identity or otherwise misrepresent themselves via video...I didn't know that AOS cases have been being conducted remotely. This changes everything.

 

8 hours ago, C & D Guerrero said:

(C) by the Secretary of State if the Secretary determines that such waiver is-

(i) in the national interest of the United States; or

(ii) necessary as a result of unusual or emergent circumstances; and

As was said, I think this is the best "in" you have in arguing for change and a method to do it.

 

I'm thinking something to the effect of:

"As necessary to ease covid-related backlog, the Secretary of State should allow remote interviews for all prospective immigrants, expanding the practice from only being conducted domestically in Adjustment of Status cases. As a chief concern of President Biden's recent election campaign, it is in the national interest to have immigration running smoothly."

 

If "all prospective immigrant" cases being virtual is too big of an ask or you don't think we will get as far with that, "Secretary of State" could probably be amended to the individual CO, if they deem the case as not worth extra scrutiny or with whatever criteria they're handling AOS cases. But I imagine that it's on the Secretary to allow the CO's to have that discretion.

 

In any case, power to you for deciding to go in front of the government, with a solution instead of just a problem. Best of luck.

[igoyougoduke 1,672]

18 minutes ago, neca said:

When my friends and family ask why we have to wait for an in-person interview when everything is on Zoom, I tell them that it's probably because one could easily enough forge an identity or otherwise misrepresent themselves via video...I didn't know that AOS cases have been being conducted remotely. This changes everything.

 

As was said, I think this is the best "in" you have in arguing for change and a method to do it.

 

I'm thinking something to the effect of:

"As necessary to ease covid-related backlog, the Secretary of State should allow remote interviews for all prospective immigrants, expanding the practice from only being conducted domestically in Adjustment of Status cases. As a chief concern of President Biden's recent election campaign, it is in the national interest to have immigration running smoothly."

 

If "all prospective immigrant" cases being virtual is too big of an ask or you don't think we will get as far with that, "Secretary of State" could probably be amended to the individual CO, if they deem the case as not worth extra scrutiny or with whatever criteria they're handling AOS cases. But I imagine that it's on the Secretary to allow the CO's to have that discretion.

 

In any case, power to you for deciding to go in front of the government, with a solution instead of just a problem. Best of luck.

law does not change due to covid. you are ask all reasonable things but immigration law was written in 1800's just kidding. it was written in 1990's 

[SalishSea 18,054]

6 hours ago, neca said:

I didn't know that AOS cases have been being conducted remotely. This changes everything.

I have not heard of this happening, except when the AOSing parties are present in the field office, but in a separate room and the interview is being conducted via iPad.

 

If there are legit cases of people being interviewed from home via Zoom, please provide links.

[Ontarkie 14,357]

~~Moved to General Immigration Discussion, from IR1/CR1 P&P~~

[neca 166]

17 minutes ago, Jorgedig said:

I have not heard of this happening, except when the AOSing parties are present in the field office, but in a separate room and the interview is being conducted via iPad.

 

If there are legit cases of people being interviewed from home via Zoom, please provide links.

from

 

16 hours ago, C & D Guerrero said:

These are being completed remotely, by phone, or simply submitting documents. 

Perhaps I misread this? I interpreted it as conducted remotely or by phone or via doc submission; not as remotely (by phone) or doc submission.

[C & D Guerrero 8]

2 hours ago, neca said:

from

 

Perhaps I misread this? I interpreted it as conducted remotely or by phone or via doc submission; not as remotely (by phone) or doc submission.

It was presented on a youtube channel. The petitioner’s mother was interviewed by phone. The youtube channel is run by a lawyer in the Dominican Republic. I

[C & D Guerrero 8]

Just now, C & D Guerrero said:

It was presented on a youtube channel. The petitioner’s mother was interviewed by phone. The youtube channel is run by a lawyer in the Dominican Republic. I

These, again are within the USA for adjustment of status interviews. Not abroad in consulates.