The Foreign Affairs Manual acts as a guide for Consular Officers who regularly adjudicate visa applications. Below is a short synopsis of the sections pertaining to correspondence with a visa applicant's attorney of record.
There are some who under the mistaken impression that an alien is entitled to legal representation at a visa interview. Although applicants and petitioners have the right to attorney representation before the United States Citizenship and Immigration Service (USCIS), this is not true for US Embassies or Consulates as they are under the jurisdiction of the US State Department (DOS) and not the Department of Homeland Security (DHS). Each diplomatic or consular post has the latitude to set its own policy on this issue. To quote the Foreign Affairs manual directly:
"Each post has the discretion to establish its own policies regarding the extent to which attorneys and other representatives may have physical access to the Consulate or attend visa interviews, taking into consideration such factors as a particular consulate's physical layout and any space limitations or special security concerns. Whatever policies are set must be consistent and applied equally to all..." [9 FAM 40.4 N12.4]
Although provided a great deal of discretion with regard to attorney presence at the post, Consular Officers are still required to notify attorneys as to the status of an applicant's case:
"The post must send a notification of the action taken at the time of the final immigrant visa appointment to the applicant's attorney of record on a locally reproduced nonstandard form letter... If the immigrant visa is refused, you must hand a copy of the refusal letter...to the alien (making sure that the refusal worksheet is retained in the applicant's visa file)..." [9 FAM 40.4 N12.2]
Consular Officers may communicate directly with the applicant's attorney of record if they feel so inclined. This communication may be a boon to all concerned because it might provide for efficient case processing:
"You may correspond directly with the applicant's representative of record, 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 American attorney working abroad in the same way as he or she would be treated if practicing in a jurisdiction of the United States of America.
"You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association...the same courtesies in correspondence that are extended to an attorney practicing in the United States..." [9 FAM 40.4 N12.3]
This author can say from personal observation that Consular Officers generally process their caseload in an efficient and cordial manner. That being said, anyone claiming to have "special connections," at a US Embassy or Consulate should be dealt with cautiously. Many "fly by night" operators make incredible and unfounded claims while favoritism in visa application adjudication is not only forbidden, but could result in serious penalties for all concerned.
Benjamin W. Hart is an attorney from the USA. He is also the Managing Director of Integrity Legal (Thailand) Co. Ltd. A firm certified under the US-Thai Treaty of Amity . For more information contact 1-877-231-7533, +66 (0)2-266-3698, or info@integrity-legal.com. See them on the world wide web at US Visa Thailand .
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