A Foreign Affair

The U.S. State Department has issued guidelines for their staff, dealing with visa issues. Some of these guidelines may be found in the Manual of Foreign Affairs (MFA). Here is a brief overview of FAM sections related to communication with plaintiff's counsel of record.

There are those who under the false impression that the alien is entitled to legal representation during a visa interview. Even if the potential beneficiaries and petitioners are entitled to legal representation before the USCIS (the acronym short for United States Citizenship and Immigration Service), it can not be said of U.S. embassies or consulates that they are under the authority of the U.S. Department of State (DOS) and not the Department of Homeland Security (DHS). Every diplomatic or consular power to determine its own policy on this issue. To quote the manual directly Foreign Affairs:

"Each station has the discretion to set its own policies regarding the extent to which lawyers and other representatives may have physical access to the consulate or to attend visa interviews, taking into account factors such as the physical configuration of a consulate in particular, and the limitations of space or special security concerns. Whatever policies are defined must be consistent and applied equally to all ... [9 FAM 40.4 N12.4]

Although provided with broad discretion with respect to the position of the presence of counsel, consular officers are still required to notify the lawyers of the state where a candidate:

"The position must send a notification of the action taken at the final appointment for an immigrant visa to the applicant's counsel of record in a local form of a letter reproduced nonstandard ... If the immigrant visa is denied, you must submit a copy of the rejection letter ... abroad (making sure the sheet is maintained in denial )..." visa applicant's file [9 FAM 40.4 N12.2]

Consular officers can communicate directly with counsel for the applicant to file, if they feel so inclined. This match can be very beneficial for all concerned because it can facilitate the efficient arbitration cases:

"You can correspond directly with the representative of the applicant to file, even in cases where the applicant is physically present in the United States, unless the applicant requests otherwise ..." [9 FAM 40.4 N12.1]

It should be noted that State Department personnel are required to treat a licensed U.S. attorney working abroad in the same manner as he or she would be if the practice in a U.S. court of America.

"You should extend to an American lawyer who served overseas and is a member of the Bar of the State ... in the same courtesy is extended to correspondence that a lawyer practicing in the United States ..." [9 FAM 40.4 N12.3]

This author can say from personal observation that consular officers generally process their workload efficiently and friendly. That being said, anyone who claims to have "special relationship" in an embassy or consulate of the United States should be treated with caution. Many "Fly by Night" operators make baseless allegations incredible and favoritism in the decisions of visa application is not only illegal, but could result in serious penalties for all concerned.

To read the Manual of Foreign Affairs in its entirety please see: http://www.state.gov/m/a/dir/regs/fam/