25 Years Ago the State Department Recognized How Visa Consul and Immigration Counsel Can Work Together in the Visa Application Process

Department of State cable 99 State 21138 was issued twenty-five years ago this month. Entitled “Working Constructively With Immigration Attorneys” the cable highlights the importance to the visa application process of the working relationship between consular officers and immigration attorneys. The guiding hand behind 99 State 21138 was the late Stephen K. Fischel, who throughout three decades of service at the Department did more than anyone to promote the relationship between consul and counsel.

To mark the anniversary, we present some of the pearls of policy wisdom provided by 99 State 21138:

  • The relationship between consular officers and immigration attorneys can be productive. Consular officers can learn a great deal from a conscientious attorney, and vice versa.
  • Consular officers should not pass judgment on applicants who choose to employ the services of an attorney. Some people are more comfortable working through an attorney no matter how straightforward or simple the visa case may appear to the consular officer.
  • It is as common for visa applicants to misrepresent facts to consular officers as it is for clients to misrepresent facts or withhold information from their own attorneys.
  • One important service that attorneys provide to their clients is making sure that forms are correctly completed and necessary supporting documentation presented at the time of the interview.
  • If consular section policy generally bars attorneys from visa interviews, individual officers may nevertheless invite an attorney to a specific interview to respond to questions that the applicant is unable to address, eg in complicated “E” visa cases where the presence of an attorney would clearly assist the consular officer to understand the case.
  • Attorneys are paid to represent their clients to the best of their ability, and will be persistent in pursuing their cases. Ignoring them will not make them go away. After attorneys fail repeatedly to get through to a consular section they turn to the Visa Office, and then we have to pester you for the answers.
  • Posts that establish clear and consistent procedures for responding to attorney inquiries save time and resources in the long run. As with Congressional correspondence, the fuller the explanation of a refusal or a 221(g) decision, the more you will help yourself.
  • The best immigration attorneys know the law very well. They know the regulations. If an attorney insists that something can be done for his/her client based on his or her interpretation of the law, ask for a citation. Let the attorney work for you on behalf of the clients.

The twenty fifth anniversary of 99 State 21138 gives us pause to reflect on the current state of the working relationship between consular officers and immigration attorneys. The anniversary also provides the opportunity to think back fondly on Stephen Fischel, a remarkable human being and true friend to consular officers and immigration attorneys alike.

(This post is adapted from an email shared to several AILA listservs with the author’s permission.)

by Liam Schwartz