As part of the Tesfaye lawsuit ( a suit by Morrison Urena regarding Addis Ababa and Khartoum) the government have filed a motion to dismiss. That doesn’t automaticall mean they will get the case dismissed, the arguments are ongoing.
However, as part of the motion, the government have filed a number of exhibits, and these exhibits are always interesting. They provide detail about how the government “says” they are working. It doesn’t always follow the reality, and there is often some ambiguity and even contradictions in their own statements, but there are some interesting findings in the exhibits. So they are worth paying attention to.
Firstly the motion and exhibits can be found here . Thanks to Curtis for making that available.
Now – let me go through some of the things I have noticed.
Cables (sort of like emails) creating a record of the communications from the government and the embassies.
The cable dated November 20, 2020 sets out the tiered prioritization that put DV visas at the bottom of the list. This prioritization was challenged in the 2021 lawsuits and actually declared “illegal” by Judge Mehta (now appealed). The tiered scheme cannot be applied to DV2021 cases for this reason.
The cable dated September 28, 2021 sets out the removal of the “diplomacy strong” framework, and replaces that with a new way to decide how an embassy could decide to operate due to Covid issues. That is interesting to read their mindset, particularly when local conditions where reported as unaffected by Covid, but the embassy remained closed (KDU embassy was an example of this until March). They spend a lot of energy laying out the conditions that need to exist to operate the embassy. I mention this as important because it makes clear why some embassies were able to remain closed or operate in very limited capacity and the DoS justification for that.
The cable dated November 16, 2021 is very interesting. After the prioritization was blocked, this cable sets out the list of scheduling priorities, which had been announced as being up to the embassy to determine within the limitations of their operating status. So – despite the prioritization being blocked, the government reiterate the priority of special consular services, Immediate replative, K visas, and family reunification cases. It then goes on to say it is the departments policy to issue as many DV visas as possible within the quota, and, interestingly, says embassies should prioritize cases related to lawsuits.
They literally made the list to avoid getting sued. That’s pretty amazing, and shows their mindset.
The declarations are sworn statements by key players within KCC or other roles. Not all the declarations are interesting but I will point out a few important points.
The declaration of Morgan Miles describes how KCC operate. I have read a number of previous declarations from Mr Miles, and found this one to be a little more detailed than previous ones, but also somewhat contradictory to his previous statements. However, there are some interesting nuggets in there, so I am going to spend some time dissecting that for you here.
i) In point 6 of his declaration, Mr Miles describes that cases can only be scheduled after the DS260 is submitted, processed and the case is current. No big shock there, although in previous statements Mr Miles (and others) tried to suggest that no post submission processing was needed after the December 9th pilot program was introduced. As I have stated before, it is obvious that they do perform at least some level of processing, even now.
ii) In point 6 of his declaration, Mr Miles also points out that embassy allocation is based on the residence of the selectee. That again, is something I already understood, but it is interesting to see it confirmed.
iii) In point 7 of his declaration, Mr Miles discusses the pilot program which removed the need to submit the documents. The wording is clumsy, so he again re-opens the door to saying no processing is required, but I think that was an inadvertent slip.
iv) In point 8 of his declaration, Mr Miles describes the factors used for deciding whether KCC will reassign a case to another embassy – these are factors I recently described in a post about changing embassies. But again, it’s useful to see their thinking clarified. He also confirms the transfer process, again as I described in the earlier article.
v) In point 10 of his declaration, Mr Miles points out the three things needed to be scheduled. First, that the case is processed (either the old method with documents or the pilot program method without documents). Second that the embassy makes space available, and third that the case is current.
vi) In point 10 of his declaration, Mr Miles points out there is a separate processing queue for each embassy. That is kind of big news that I and others had guessed back around February or so. These embassy specific queues have not always existed, leading to embassies wasting capacity. I think it was probably an improvement they made as part of the pilot program, and is a welcome adjustment that is allowing them to work more efficiently. The process must rely on the process of “opening” each DS260 in submission date order (as Mr Miles has previously described), because the staff would need to add that case to a list with some pertinent info (embassy, case number DS submission date and processing status). The list itself (or an extract of it, at least) is included in the declaration so more discussion of that in a few moments.
vii) In point 10 of his declaration, Mr Miles also discusses the ordering of cases for scheduling. Please understand their is a difference between scheduling and processing, but he is discussing scheduling in this point. He states it is based on case number order. If true, that would be “correct” according to the intention of the rules of the program since case number is supposed to give a priority. Pre December 9th that was applied by processing the documents in CN order (whereas DS260s were taken in DS submission order). However, by maintaining the embassy specific lists they could be applying that CN order. I say “could be” because although I have been aware of the embassy specific lists and the CN order which is seen at some embassies (as noted for some months now), there are some cases and embassies that appear to be applying the “normal” DQ date rule. Furthermore if you continue reading you will also see that a later declaration confirms the DQ date is used as a “tie breaker” – which is exactly what I have been describing for a long time now, so on balance this seems to align almost exactly to what I have understood for a while.. So – I hope KCC are applying the CN date rule BUT that will be a huge blow to high CN cases that were hoping for a benefit from early submission. That benefit has certainly been evident in the past (very recent past) and has even been argues as a justification for ordering anomalies in previous lawsuits. So – the jury is still out on that point, in my view.
viii) In point 11, 12 and 13 of his declaration, Mr Miles declares there are over 15k cases (32k selectees) already DQ and not scheduled. That is a sobering number because in a way that might be considered close to “enough” if they were to stop processing, BUT the earlier comments about CN ordering should not allow them to cease processing. He also states there have been over 15k cases scheduled (31k selectees) which aligns well with the data we have from CEAC. Point 13 lists the progress as of December 9, as if to underline the progress that has been made under the pilot program.
ix) In the declaration there is an excel sheet that lists some cases of the plaintiffs in the Tesfaye case, showing their status, order in the queue and so on. It’s fascinating and somewhat frustrating. I wish they would simply make this information available to all people on a per embassy basis. It would provide transparency to all and perhaps even allow more cases to be scheduled at the quieter embassies. However, it’s also fairly depressing because it lists the case position, and how many cases are assigned and ready for scheduling to the embassy. In Addis there are 452 cases allocated to the embassy (and recent capacity is running at just over 30 cases per month). That does not bode well for high CNs in Addis. In Khartoum it’s a similar sad story. 448 cases allocated, and capacity of 10 to 20 cases per month. There are only three months left.
Here is the list:
The status codes for each case are interesting showing the following codes.
Now, it is not 100% clear whether DOCQ is before DOCC status. Update – I believe DOCC is a later stage than DOCQ, but both are pretty much the point you need to be before you can be scheduled.
RV means DQ but the case is not current, and AV means the case is DQ and current and “allocated”. Again, I have previously described this status, as being when KCC respond the case is “current for interview processing”. It’s an important status because at that point the case cannot be changed (no DS260 changes, no embassy changes). That status is only supposed to last a few days because it would normally be followed quickly by a 2NL, BUT in these times some cases are staying in this allocated status for months waiting for available capacity at the embassy, and that is what I have described as being in “limbo”.
FP is the status when the 2NL has been sent.
The declaration of Rebecca Austin describes how embassy capacity is managed and related to the Visa Bulletin. Now it should be noted that Ms Austin works for the NVC, but her declaration is included because of its relevance to DV cases. This declaration confirms a point I have been explaining for a long time. That, in the case of an embassy capacity being less than cases ready for scheduling, the date that the cases became documentarily complete (DQ) is used for tie breakers (deciding which cases should be pushed to the following month). Now, this is a principal that has been described before and has been observed up to present day. However, it contradicts (to some extent) statements made by Miles Morgan which I will discuss later. However I think there is something in the business processes that can be used to explain this contradiction.
Ms Austin also provides information for capacity at Addis (April – 36 cases and May – 33 cases for April and May) and Khartoum (April – 20 cases and May – 10 cases). Again, this information is something I have been explaining. Embassies make their DV case capacity known and that determines which cases get scheduled in any given month.
So in summary, there is a lot to unpack here and I am sure over the coming days we will reveal more interesting info from this motion and there is another one due from the lawsuits that Jesse Bless has filed. So – interesting learning.
My main take away is that KCC finally did something right. The pilot program adjustments have been successful in scheduling more cases than would otherwise have been possible. I now believe we will see at least 40k visas issued, probably 45k. In that case lawsuits become harder to win, but actually, one could argue that the lawsuits have already won. The lawsuits have no doubt caused procedural changes and KCC have worked on cases just because of the lawsuits.
However, this is a tale of two cities. There are many people disadvantaged at specific embassies that have remained closed or scheduled a tiny number of cases compared to their local demand. That is going to be heartbreaking for some people. So – whilst KCC might claim to have improved the processing and possibly even reinforced the correct ordering, they will unfortunately leave many cases behind, simply by bad luck of being assigned to a stubbornly lazy embassy.
I hope this article was interesting. I look forward to hearing your thoughts!