Written by Lamya Agarwala, a staff attorney in the Legal Services department at IRAP.
Applicants for a Special Immigrant Visa (SIV) have to navigate a number of strict documentary requirements in order to demonstrate that their employment with the United States qualifies for the program. (For guides on navigating the SIV process, use IRAP’s legal information website.) One longstanding requirement is that the applicant submit a letter of recommendation from their supervisor to demonstrate that they provided “faithful and valuable” service. Until recently, and contrary to the terms of the governing law, the State Department required such letters to be signed or co-signed by U.S. citizens.
Last month, in a court filing in the lawsuit Afghan & Iraqi Allies v. Blinken, the State Department confirmed that it has stopped imposing this unduly restrictive requirement on SIV applicants. According to the Director of the State Department’s Afghan Special Immigrant Visa Unit, “[a]s of December 21, 2021, the Department ceased requiring that the letter of recommendation in support of the COM application be submitted by a U.S. citizen supervisor or co-signed by a U.S. citizen.” This means that SIV applicants can submit a letter of recommendation from anyone who supervised them, regardless of the supervisor’s citizenship status.
When it created the SIV program, Congress specified that a person could demonstrate the necessary faithful and valuable service to obtain an SIV by submitting a positive recommendation or evaluation from their supervisor. Congress set no limits on the citizenship or nationality of that supervisor. But for years, the State Department refused to credit letters that were not signed by U.S. citizens.
This State Department policy led to unnecessary delays. For example, the agency regularly made follow-up requests to applicants for information such as the supervisor’s U.S. passport number, or made erroneous assessments of the supervisor’s citizenship that led to unnecessary appeals. In one case for which IRAP provided assistance, the agency contended that the applicant’s supervisor, a naturalized U.S. citizen, could not properly author a recommendation letter because he was not a U.S. citizen at the time he and the applicant were colleagues. This was incorrect as both a legal and factual matter, but delayed the applicant’s case for more than one year.
The State Department’s policy also shut other applicants out of the SIV program altogether. For a variety of reasons, a person may not know or have contact with a U.S. citizen who can write them a letter. For example, people implementing critical U.S. government projects through local companies often did not work directly with U.S. citizens. To take another example, our client in Doe v. United States, No. 21-cv-1697-TSC (D.D.C.), was left in the lurch when his U.S. citizen supervisor was kidnapped by the Taliban-linked Haqqani network. In that lawsuit, we argued, among other things, that the U.S. citizenship requirement was illegal–and the government ended up voluntarily reversing its denial before the issue went before the court.
Given that the State Department has now said it is not requiring letter writers to be U.S. citizens, applicants should no longer have to sue to ensure that the government complies with this aspect of the law.
That said, the State Department’s public-facing guidance remains confusing, as it still (wrongly) tells applicants to get letters from U.S. citizens. As of today, June 13, 2022, the Embassy application guidelines, which were last updated in October 2021, instruct the applicant to “try to obtain the [required] recommendation from a U.S. citizen supervisor.” The State Department’s Foreign Affairs Manual, in a section last updated in November 2021, explains that “[t]he supervisor should normally be the U.S. citizen who directly supervised the employee or supervised the company for which the employee works.” It has now been over five months since December 2021, when the State Department supposedly changed its policy. In a humanitarian pathway for which the government recognizes that “applicants are inherently under threat” and every day matters for the applicant and their family, this delay in clearly publicizing its policy is inexcusable.
We at IRAP are interested in hearing from you if–contrary to its statement–the State Department continues to deny applications based on the citizenship of the applicant’s supervisor or otherwise suggests that it is still applying the U.S. citizenship requirement. If you are a legal practitioner working on an application that is delayed or denied on this basis, you can alert IRAP through the Ask-an-Expert website. If you are an SIV applicant in this situation, you can request assistance through IRAP’s COM denial assistance form or refer to IRAP’s legal information website.