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Opinion

Cable 99: Working constructively with attorneys

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

February 2024 marks the 25th anniversary of the State Department’s famous cable, 99 State 21138 (“Cable 99”). The subject of Cable 99 is “working constructively with immigration attorneys” and provides guidance and instructions to consular officers on the vital role immigration attorneys play in connection with consular processing. It stresses the importance of consular officers having a positive working relationship with immigration attorneys.

Some of the key points of Cable 99, which benefit visa applicants, are:

• The relationship between consular officers and immigration attorneys can be productive. Consular officers can often learn a great deal from a conscientious attorney, and vice versa. Consular officers can benefit from attorneys’ experience and services on behalf of their clients.

• The use of an attorney is the client’s choice. (It is not a sign of guilt or trying to hide fraud.) Consular officers should not pass judgment on applicants or petitioners 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.

• A person’s employment of a lawyer does not constitute a “red flag” or signal the existence of a problem in the case.

• A visa applicant who has already hired an attorney should not be told that it was “unnecessary.”

• Under no circumstances should a consular officer (or their staff) inquire about the fee being charged for legal services in a specific case. (Many years in the past, I would have clients report to me that some staff members asked how much I had charged and/or tell the client they were wasting their money. Fortunately, we were able to obtain the visas, and the clients were absolutely thrilled.)

• One very important service that attorneys provide to clients is making sure that forms are correctly completed and necessary supporting documentation is presented at the time of the interview.

• The State Department further reminds consular officers that because attorneys are paid to represent their clients to the best of their ability, attorneys may be persistent (makulit) in pursuing the cases. Ignoring attorney inquiries “will not make them go away.” If the case is refused, consular officers should be forthcoming in providing the facts and details behind the refusal, rather than being cryptic or evasive. “The fuller the explanation of a refusal or a 221(G) decision, the more you will help yourself. Explaining all of your concerns about a case the first time will save you from the follow-up inquiries that erode so much of your time.”

• 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. Conversely, if a consular officer can show the attorney where he or she has erred in the interpretation of the law, he or she will learn from the consular officer.

For my part, one of my favorite areas of immigration practice is consular processing. The consuls are professional and knowledgeable. But sometimes we disagree on the facts or the law and, as the embassy knows and reminds me, I can be persistent if I believe I am correct. But I’m glad that Cable 99 is still in effect and that newer consular officers take advantage of the vital role we immigration attorneys play and how we can actually make their lives easier.

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WEBSITE: www.gurfinkel.com

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