Brief on the Dept. Of State Reciprocity Table

by Joseph P. Whalen


DEPARTMENT OF HOMELAND SECURITY (DHS)

UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES (USCIS)

OFFICE OF THE DIRECTOR

ADMINSTRATIVE APPEALS OFFICE (AAO)

OFFICE OF CHIEF COUNSEL (OCC)

WASHINGTON, DC

 

   ADMISTRATIVE REVIEW BRIEF

   ON THE DEPT. OF STATE RECIPROCITY TABLE

 

       Dated this 2nd of September 2022

I. INTRODUCTION

The Department of State (DOS) is the source relied upon as the authority as to which documents from around the globe are acceptable as evidence of various vital statistical information for immigration purposes. These include records of birth, death, marriage, divorce, and adoptions. The DOS maintains a visa reciprocity table that includes information on documents. It is found online at the following web address: https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html where there is featured a list of countries for which more specific information is available. Just select a country and see what the folks at the State Department have determined to be what is acceptable documentary evidence to be expected within that country.

II. IMPORTANCE OF DOCUMENTARY EVIDENCVE

The number one piece of evidence in the realm of immigration is documentary evidence. Documents are used primarily to prove identity, relationships, and status. USCIS has some regulations specifically addressing documentary evidence and how it is rated. It must be kept in mind that these regulations were promulgated via 29 FR 11956 , Aug. 21, 1964, which was long before the internet was created. Reference to the Foreign Affairs Manual is way out of date.  It’s all online nowadays.

III. CONTROLLING REGULATIONS

8 CFR § 103.2 Submission and adjudication of benefit requests.

(b) Evidence and processing -

(1) Demonstrating eligibility. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request.

(2) Submitting secondary evidence and affidavits -

(i) General. The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence.

(ii) Demonstrating that a record is not available. Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available. However, a certification from an appropriate foreign government that a document does not exist is not required where the Department of State's Foreign Affairs Manual indicates this type of document generally does not exist. An applicant or petitioner who has not been able to acquire the necessary document or statement from the relevant foreign authority may submit evidence that repeated good faith attempts were made to obtain the required document or statement. However, where USCIS finds that such documents or statements are generally available, it may require that the applicant or petitioner submit the required document or statement.

(iii) Evidence provided with a self-petition filed by a spouse or child of abusive citizen or resident. The USCIS will consider any credible evidence relevant to a self-petition filed by a qualified spouse or child of an abusive citizen or lawful permanent resident under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not required to, demonstrate that preferred primary or secondary evidence is unavailable. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of USCIS.

The USCIS Policy Manual devotes a sizeable amount of space to this subject matter also.  See PM-Vol. 1-Part E-Ch. 6, especially the preliminary part and ¶¶ B, D.1, F.1 and F.2. https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-6

IV. SUBJECT MATTER BACKGROUND

There are some misconceptions about this subject matter and a need for clarifications on certain topics or aspects of it. Some places have national standards, some dole out the responsibility to states or provinces and still others delegate to localities such as counties, cities, townships, neighborhood groups, village councils or elders. Wherever the United States has a presence, U.S. Government employees in-country have researched the situation in order to find out what is the best we can get and informs the rest of the government.

Sometimes counsel for an applicant or petitioner will not be aware of USCIS’ expectations.  They sometimes try to find out information on behalf of their clients and are veered off course, become distracted and/or bogged down in minutiae. When I was an adjudicator, I often directed applicants, petitioners, and their representatives to the DOS website to inform them what would be acceptable documentation to submit in response to my request for evidence (RFE).  Depending on the amount of information available for the country involved, it might be best to simply cut and paste it into the RFE. If there are many options available a link to the specific country page would be just enough information to put them on notice of what was expected.

In the next section is an excerpt from an AAO decision and from what I see, the adjudicator below probably did not tailor the RFE to the beneficiary’s country. That oversight seems to have led to a denial of the petition.  Sadly, AAO’s decision might be the first time that the petitioner is getting the benefit of clear direction to the standards employed in evaluating the evidence submitted. If the RFE or even the denial below had provided this simple bit of information, then the case would not have ever reached AAO.

V. PERTINENT NONPRECEDENTIAL AAO DECISION

The following is taken from an AAO nonprecedential decision affirming a denial of an I-129F, Petition for Alien Fiancé(e).

In Re: 21712668  (AUG192022_01D6101.pdf)[1]

The Petitioner, a native of Thailand, is a naturalized citizen of the United States. The Petitioner filed the instant fiance(e) petition on behalf of the Beneficiary, a citizen of Laos, in March 2020. The Director issued a request for additional evidence (RFE) to which the Petitioner filed a timely response. The RFE explained that the Petitioner had not provided sufficient evidence to establish the Beneficiary's legal ability to marry him.

The Petitioner responded to the RFE with a copy of a document, and its English translation, labeled "The Dispute Resolution in Village Notes," dated "05/10/2019." The document purports to show that the Beneficiary and her spouse went before members of their Laotian village [REDACTED] to mediate their marital disputes. After mediating, the document reflects that this village authority issued "results" and determined (among other things) that it was the Beneficiary's responsibility to obtain a divorce certificate. Such language suggests strongly that this document is not a final divorce decree, and the Director denied the petition accordingly.

On appeal, the Petitioner submits a personal statement, and a "divorce certificate" issued by the [REDACTED] District, "District Home Affairs Office." In his statement, the Petitioner asserts that under Laotian law, specifically "paragraph 2 of Article 17 of the Family Registration Law," a voluntary divorce that is agreed to by both parties and which has been disputed and agreed to before village authorities can be registered with government authorities without a court proceeding. We consider the U.S. Department of State's (DOS) "Lao People's Democratic Republic Reciprocity Schedule," as the authority for which documents are acceptable evidence of divorce for immigration purposes, and it does not support the Petitioner's assertion. The reciprocity schedule explains that "[a] divorce decree must be issued by the court in the district where the couple is resident for a divorce to be final. A divorce certificate issued by a village or district official that is not a member of the court is not sufficient." See https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html/LaoPeoplesDemocraticRepublic.html  (last visited Aug. 19, 2022).

We are unable to accept assertions as evidence in these proceedings, and the Petitioner has not provided objective evidence to establish how a divorce certificate issued by the "District Home Affairs Office," is final evidence of divorce according to our guidelines, which require a divorce decree issued by a court. Furthermore, the Petitioner's assertion contradicts DOS guidance as to what documentation constitutes sufficient evidence of divorce. As such, we cannot accept this documentation as final evidence of the Beneficiary's freedom to marry him.

VI. REQUEST FOR EVIDENCE (RFE) OR NOTICE OF INTENT TO DENY (NOID)

8 CFR § 103.2 Submission and adjudication of benefit requests.

(b) Evidence and processing

              (8) Request for Evidence; Notice of Intent to Deny -

(i) Evidence of eligibility or ineligibility. If the evidence submitted with the benefit request establishes eligibility, USCIS will approve the benefit request, except that in any case in which the applicable statute or regulation makes the approval of a benefit request a matter entrusted to USCIS discretion, USCIS will approve the benefit request only if the evidence of record establishes both eligibility and that the petitioner or applicant warrants a favorable exercise of discretion. If the record evidence establishes ineligibility, the benefit request will be denied on that basis.

(ii) Initial evidence. If all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS.

(iii) Other evidence. If all required initial evidence has been submitted but the evidence submitted does not establish eligibility, USCIS may: deny the benefit request for ineligibility; request more information or evidence from the applicant or petitioner, to be submitted within a specified period of time as determined by USCIS; or notify the applicant or petitioner of its intent to deny the benefit request and the basis for the proposed denial, and require that the applicant or petitioner submit a response within a specified period of time as determined by USCIS.

(iv) Process. A request for evidence or notice of intent to deny will be communicated by regular or electronic mail and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twelve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted.

I’ve said it before and I’ll say it again, where clarity of information is your goal, confusion is the enemy. One part of that confusion comes in the form of too little information. Poor quality of information contained in an RFE, or NOID often forebodes an inadequate response and denial for failure to meet the burden of proof.  When that happens, it tells me two things. First, there is an obvious need for improved training.  In the past several years, there was a distinct attitudinal shift away from customer service and into enforcement and to a degree, entrapment, at USCIS. It was a “top-down” phenomenon beginning in the Trump oval office and carried out by his minions. While some steps have taken place to undo some of the damage, more is needed.

VII. NEED FOR IMPROVED GUIDANCE ON BASIC SOURCES OF INFORMATION FOR ADJUDICATORS AND PRACTICIONERS

a. Lack of Information to the Customer Due to Information Overload

I am afraid that there is so much information available that it has become overwhelming to adjudicators. When the USCIS adjudicator is buried in too much information then that burden becomes unbearable and things are forgotten. That means that something has got to give. In my experience, the first thing to go is quality. When quantity of adjudication workload is unduly increased then, the first casualty is the quality of the RFE and/or NOID. When a tailored RFE or NOID is required, it is going to begin with a template. That is OK except when the tailoring is diluted too much or dropped altogether.

b. Inappropriate Denials

When the issue underpinning a denial is the reliability of documentary evidence submitted, it had better have been made clear exactly what was needed. If one asks for a “birth certificate” from a particular country and something extremely specific is expected, then that had better have been clearly stated. Many places around the world use local documents to support a state or national collection of vital statistics. If the Officer wants a certificate from the national source, then they had better have asked for it. If that Officer bases a denial on the fact that a local certificate is presented when they had not told the applicant that that would not be acceptable, then that denial ought not stand up to review.

c. Overturned on Judicial Review

Looking to the AAO nonprecedential decision cited and quoted above, it is unclear whether the RFE was precise about what was needed. I must wonder aloud if the petitioner was directed to the DOS website that was later relied upon to authenticate the document submitted and justify not accepting it. Relying on a document verification source is just fine, but USCIS cannot keep it a secret or leave that information out of its RFEs and NOIDs. That type of behavior could spur a class action lawsuit which the agency would assuredly lose. Such a mess can be easily avoided through improved training and better quality RFE and NOID templates.

VIII. SUGGESTED CHANGES IN PROCEDURE

USCIS needs to do a better job of putting its customers on notice of what it expects from them as it relates to documentary evidence concerning vital statistics. Since USCIS will rely on the information provided by DOS on its website, that specific information should be directly quoted whenever possible. AAO managed to do just that in the example cited and quoted earlier in this brief. However, it was not made clear whether the petitioner had been so informed in the RFE issued during the adjudication of the petition.

The easiest thing for USCIS to do is have refresher training periodically and review its RFE and NOID templates on a regular schedule. Also, when major changes occur at the DOS website, template review and refresher training should be adjusted accordingly.

IX. AMICUS INFORMATION & STATEMENT OF INTEREST

I am a former INS/USCIS Adjudications Officer. I joined INS in 1998, after previous federal service as an archaeologist with the U.S. Forest Service. Between the two, I learned how to navigate complex statutes and their complex implementing regulations. I began my adjudications career at a sensitive time when INS was just getting over the CUSA fiasco at the end of the Clinton administration. NQP was new and I couldn’t touch an A-File as an adjudicator until I got NQP training. 

As a result of the situation, I spent an extra long time reading the INA and 8 CFR, observing others in naturalization interviews, and performing all manner of clerical tasks. When I did start adjudicating, I got very good, very fast. I became a trainer, started an in-house law library of administrative and ninth circuit cases, became the “go-to guy” for my office.

I pioneered the position of Community Based Organization Liaison Officer (the forerunner of today’s Public Engagement and Community Relations Officers etc") and instituted INS’ first e-mail inquiry account. I liaised with other offices, community groups, AILA, other agencies, Congressional Office staffers, and even the Law Library of the Library of Congress (I got them to put together international law resources, beginning with legitimation laws from around the world). I became an acting SDAO and then was selected as an SDAO. I occasionally filed in for the Director of my office.

I went through the San Francisco Bay Area’s Federal Executive Board’s Executive Development Program, I transitioned into being a trainer on many topics. I included in my training materials the non-precedent that would become Matter of Chawathe before it was adopted in January 2006, and before it became Precedent in October 2010. I instigated INS’ first customer service training by suggesting it to then-commissioner Doris Meissner on an inspection to the office where I began. It was a customer service pilot office which is why she visited it. I did a lot of outreaches; from pioneering naturalization workshops with mock interviews, to staffing information booths at ethnic events and even did some recruiting at county fairs.  I officiated at Naturalization Ceremonies and Citizenship Celebrations/Ceremonies (for N-600 cases). I authored numerous RFE and denial templates. I became an Adjudications Analyst at a Service Center as well as the Center NQP Trainer. I critiqued CLAIMS 4 as it was being introduced and pointed out many needed changes. I went to HQ on a variety of details and did beta testing of various computer program updates. They trusted me to figure out how to break it so they could fix it before it was deployed.

When I became a senior adjudications officer (Subject Matter Expert) at HQ in SCOPS, I became the sole Regional Center Adjudicator, I created the Immigrant Investor e-mail and later, wrote unofficial “How to Apply” instructions that 1.) were spammed out on the internet and grew the EB-5 program exponentially, and 2.) later formed the basis for the Form I-924 instructions. My efforts saw the number of active and approved Regional Centers grow from 11 approved but only 6 actives to approximately 80 with another 100 in the processing queue. That was when USCIS, after 17 years, finally decided to create a form and charge a fee. I wrote a Policy Memo for EB-5 about construction jobs and was listed as POC for program filing changes in the Federal Register. I suggested the I-924 filing fee be $12,500 but the agency began it at $6,300 instead, today it is $17,795 and will soon implement up to $20,000 annual participation fee per Regional Center. IPO was not yet created when I left the agency the first time after everything EB-5 was centralized at CSC. I trained the first batch of RC adjudicators. Several years later I returned to the newly opened Potomac Service Center and became a valuable resource for mentoring and training sessions. I worked on the most difficult cases in the office.

During my first break in employment from USCIS, I consulted as a freelance paralegal—no license was required in NY State which is where I was at the time. I have been published in Immigration Daily (an online immigration publication) nearly 300 times since March of 2011 through the present, only taking time off when I returned to USCIS employment.  I responded to both of AAO’s formal Amicus Brief solicitations (in 2011 and 2015) and am glad that they adopted many of my suggestions. I’m probably missing something. 

I developed a keen interest in immigration law while working for the government, and it remains with me. I was pleased by the recent change in EB-5 law and glad that many of the suggestions I’ve made over the years finally made it into the March 2022, EB-5 Reform and Integrity Act.

X. CONCLUSION

It is my sincerest whish to provide useful and constructive criticism along with suggestions for improvements. I only desire to help the agency and its customers. Unfortunately, in the information age, it is too easy to become saturated with too much information. When that happens, the right hand and left hand often start to work at cross-purposes. Let’s fix it!

[1]  https://www.uscis.gov/sites/default/files/err/D6%20-%20Fiancees%20and%20Fiances%20of%20U.S.%20Citizen%20%28K-1%29/Decisions_Issued_in_2022/AUG192022_01D6101.pdf


About The Author


Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.