TIMELY VISA ISSUANCE

[John and Anna 0]

9 FAM 42.71

PROCEDURAL NOTES

(CT:VISA-801; 04-21-2006)

(Office of Origin: CA/VO/L/R)

9 FAM 42.71 PN1 TIMELY VISA ISSUANCE

(CT:VISA-801; 04-21-2006)

Section 237 of Public Law 106-113 and subsequent legislation directs the

Department to establish a policy under which immediate relative and

Fiancé(e) visas are processed within 30 days of receipt of necessary

information from the applicant and Department of Homeland Security (DHS).

Other family-based immigrant visas must be processed within 60 days of

receipt of all information.

http://foia.state.gov/REGS/fams.asp?level=...id=10&fam=0

[ScottThuy 140]

If all required information has been provided, the only thing that would allow going beyond the 30-60 day limit is a consulate level background check.... or some form of investigation..correct?

[Audy_Rob 26]

...are processed within 30 days of receipt of necessary

information from the applicant...

http://foia.state.gov/REGS/fams.asp?level=...id=10&fam=0

I think they are saying when they have gathered all the necessary information, called back to the US for a talk with the DoS or DHS, when they have finished whatever decision making they are doing in the event of an AP, then they have 30 days to ISSUE the VISA.

Edited May 16, 2010 by Audy_Rob

[ScottThuy 140]

And if they dont require anything from DHS?

Edited May 16, 2010 by ScottThuy

[JimVaPhuong 4,863]

If all required information has been provided, the only thing that would allow going beyond the 30-60 day limit is a consulate level background check.... or some form of investigation..correct?

First, the link in the OP is broken. Not surprising, seeing as how it's 3 1/2 years old.

Here's the current link:

http://www.state.gov/documents/organization/87903.pdf

Public law 106-113 can be found on the GPO website here:

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_public_laws&docid=f:publ113.106.pdf

Search for section 237. It reads:

SEC. 237. PROCESSING OF VISA APPLICATIONS.

(a) POLICY.—It shall be the policy of the Department of State

to process immigrant visa applications of immediate relatives of

United States citizens and nonimmigrant K–1 visa applications

of fiances of United States citizens within 30 days of the receipt

of all necessary documents from the applicant and the Immigration

and Naturalization Service. In the case of an immigrant visa

application where the sponsor of such applicant is a relative other

than an immediate relative, it should be the policy of the Department

of State to process such an application within 60 days of

the receipt of all necessary documents from the applicant and

the Immigration and Naturalization Service.

Section (b) goes on to require the Department of State to provide annual reports to the appropriate congressional committees on the extent to which consulates are meeting those processing goals. The law specifically requires them to report on the 22 consulates that issue 72 percent of immigrant visa (though the law doesn't specifically say which consulates those are), in addition to 5 other specific consulates.

My take is that the law and FAM are only meant to light a fire under the consulates to get them to process visa applications faster. It says it will be the policy of DoS to process visa applications within 30 days, but it doesn't say they are absolutely required by law to do so, nor what recourse there is if they don't. It just says they have to report to congress annually on how well they are meeting the policy objectives.

You could certainly bring up the FAM and public law next time you talk to a CO, but I don't know if it will get you anywhere.

[ScottThuy 140]

I will test them with an email asking about it.... the last they said, they had all of the docs, they just need to review the case....

[Audy_Rob 26]

It certainly seems interesting AND relevant to some of these cases in extended AP at the Embassy where it goes beyond waiting for a name check or the Embassy/Consulate waiting for a ruling from the DoS/DHS back in the states.

Basically when the CO says they have everything, it does seem to indicate they only have 30 days to rule.

You have to be careful with these things as it can blow up in your face if they then decide to deny the Visa.

Edited May 16, 2010 by Audy_Rob

[ScottThuy 140]

the catch is do they have everything or do they just have everything they need from us... they can always say the need additional info from somewhere else...

[JimVaPhuong 4,863]

Basically when the CO says they have everything, it does seem to indicate they only have 30 days to rule.

I don't see that when I read the law. From the context of that entire provision, it would seem that the intent of the law was to reduce the backlog of visa applications at consulates, and not to set a mandate on the consulates to rule within a specific amount of time. A mandate would require an "or else" clause - a detailed description of what would happen if a consulate fails to rule in the specified amount of time; i.e., a default judgment would be made, or some penalty clock would begin to run, or something along those lines. If there was such a mandate, there would be no need for an annual report to congress since compliance would be required to be 100%.

Read the last sentence in subsection (b):

Each report should include data on the average

time for processing each category of visa application under

subsection (a), a list of the embassies and consular posts which

do not meet the policy standards under subsection (a), the amount

of funds collected worldwide for processing of visa applications

during the most recent fiscal year, the estimated costs of processing

such visa applications (based on the Department of State’s most

recent fee study), the steps being taken by the Department of

State to achieve such policy standards, and results achieved by

the interagency working group charged with the goal of reducing

the overall processing time for visa applications.

The only thing this law does is require DoS to establish a policy of processing spousal and fiancee visa applications within 30 days of receiving the required documents, to take steps to meet that goal, and to report to congress on their level of compliance. If they were absolutely required to issue a judgment within 30 days then I think most people would come out of AP with a denial. As Scott says, they could just say that they couldn't complete their investigation before the deadline passed.

[Audy_Rob 26]

This is the weak part.

SEC. 237. PROCESSING OF VISA APPLICATIONS.

(a) POLICY.—It shall be the policy...

I do not think they are saying it is a law or required. Simply their policy to try.

[JimVaPhuong 4,863]

This is the weak part.

I do not think they are saying it is a law or required. Simply their policy to try.

Exactly. The act of law that governs immigration and visas is the Immigration and Nationalization Act, which defines the intent of Congress. The Code of Federal Regulations "codifies" that intent in the form of law. The Foreign Affairs Manual contains the policies which consulates will use in following that law. Public law 106-113 simply changes the policies that the consulates will use.

[ScottThuy 140]

We will see what happens when someone asks them to follow thier own policy...

I was amazed when another VJ member at my same consulate requested an appointment to speak to the CO handling his case.. the response: "Consulate policy does not contemplate interaction between interviewing/ reviewing officers and the petitioners of any particular case"

contemplate? someone trying to use a new word? severalothers here have asked for an appointment to speak to the CO and were granted since they were traveling around the world to be there... common courtesy IMO.... nothing common about some consulates.... As a friend of mine says.. Its the federal Govt... it aint fed ex.. nothing will happen over night...

[JimVaPhuong 4,863]

We will see what happens when someone asks them to follow thier own policy...

I was amazed when another VJ member at my same consulate requested an appointment to speak to the CO handling his case.. the response: "Consulate policy does not contemplate interaction between interviewing/ reviewing officers and the petitioners of any particular case"

contemplate? someone trying to use a new word? severalothers here have asked for an appointment to speak to the CO and were granted since they were traveling around the world to be there... common courtesy IMO.... nothing common about some consulates.... As a friend of mine says.. Its the federal Govt... it aint fed ex.. nothing will happen over night...

Sounds like someone with a reasonable grasp of the English language, trying desperately to sound intelligent. Unfortunately, they missed! A policy is just text. It's not capable of contemplating anything.

Scott, it wouldn't hurt to ask them about the policy, nor to cite the policy when asking them to make a decision in a timely manner. My guess is that the most likely result is you'll get the same "don't call us, we'll call you" response that you've been getting up until now. However, if you actually get someone who bothers to read the question and is actually aware of the policy, I suspect the response will not be dissimilar to the conclusions we came to above.

I guess my point is that if this were a hard rule that they absolutely had to comply with, under any circumstances, then we'd have already seen lawyers using it regularly to get a fast decision from the consulates. I just can't remember any case where the consulate was forced to make a decision because they ran out of time.

[ScottThuy 140]

I may go talk to the congressional liason and see if he will inquire about the policy... funny that congress created it and the consulate isnt abiding...lol