U.S. Department of State Updates Foreign Affairs Manual Guidance
By Ilissa Mira, Training and Legal Support Attorney
The Office of Visa Services (Visa Office) within the Department of State’s Bureau of Consular Affairs issues advisory opinions in nonimmigrant and immigrant visa cases adjudicated at U.S. consulates. Advocates and applicants may send email inquiries to LegalNet@state.gov to request case-specific responses regarding the interpretation or application of immigration law in visa cases. On April 23, 2014 and May 7, 2014, DOS updated the Foreign Affairs Manual at 9 FAM Appendix E, 800, to include information on LegalNet’s purpose, scope and inquiry processing. The highlights of this new FAM section are summarized below.
Purpose and Scope of LegalNet
The new FAM guidance sets forth the scope of inquiries that LegalNet will accept for review. According to the FAM, LegalNet provides substantive responses only to the following categories of inquiries:
- Legal questions about a specific case when the applicant or representative has attempted to contact the consular post at least twice without receiving a final response, and where 30 days have passed since the second inquiry (unless action is required sooner to avert significant harm to the applicant)
- Legal questions about a specific case in which the applicant or representative has received a final response from post, but believes it to be wrong as a matter of law
- Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas, and
- Legal questions about specific cases involving the Child Status Protection Act (CSPA) and the Violence Against Women Act (VAWA).
The new guidance describes inquiries to which LegalNet will not provide substantive responses, including:
- Questions from anyone other than an applicant or representative of record
- Requests to review factual determinations made by U.S. consular officers
- Requests for case status updates
- Questions that are general, speculative, or hypothetical in nature
- Legal questions in cases where the consular officer has not yet reached a final determination of the applicant’s eligibility for a visa (except in T, U, diversity and adoption visa cases, and CSPA and VAWA cases)
- Request for explanations of visa revocations or cancellations, and
- Request regarding a case that is still being processed at the National Visa Center.
Requirements for LegalNet Inquiries
Inquiries submitted to LegalNet should refer to only one case per email. Additionally, the subject line of the email should include: 1) the applicant’s full name; 2) the post processing the case; 3) the National Visa Center case number for immigrant visa cases; 4) the applicant’s passport number and/or USCIS receipt number for nonimmigrant visa cases; and 5) the citation to the relevant statute or regulation at issue.
The body of the email should include the principal applicant’s full name as it appears in the applicant’s passport, the applicant’s date of birth and the applicant’s pace of birth, as well as the location of the pending or denied visa application, the applicant’s visa classification, and any refusal code.
Representatives should attach a signed G-28 and copies of all previous correspondence with the post.
Processing LegalNet Requests
LegalNet will provide notice that the inquiry was received and is being processed within seven days of receipt. The timeframe for substantive responses depends on the complexity of the matter and availability of essential information. However, if no substantive response from LegalNet is received within 30 days, send a follow-up email to LegalNet.
When to Use LegalNet
Consular officers have absolute authority to issue or refuse visas. However, an advocate may seek an advisory opinion on legal issues that he or she believes were decided in error. A favorable advisory opinion may persuade a consular officer to rescind a visa refusal.
Consider using LegalNet when you are unable to resolve a disputed legal issue with the consulate and its supervisory channels. This might include cases where a consular officer misapplies the law and finds an applicant inadmissible. For example, advocates have sought advisory opinions on erroneous determinations that a client engaged in smuggling or has a disqualifying conviction. In one case, an advocate sought review of a visa refusal based on aiding and abetting smuggling under INA § 212(a)(6)(E)(i). At a young age, the applicant had entered the U.S. with his uncle, cousins, and the help of a paid coyote. Each person paid their own share of the fee. While the facts were not disputed, the advocate argued that it was a misapplication of law to conclude that his client had smuggled the relatives who had accompanied him. After receiving a favorable advisory opinion, the applicant was eventually issued a visa.