State Department guidance to consular posts on heightened screening and vetting of visa applicants worldwide: "all visa decisions are national security decisions"

News Release from Jewell Stewart & Pratt – March 27, 2017 Following the issuance of Executive Order 13780 by President Trump on March 6, 2017 (banning visa issuance to nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen) and the associated presidential memo to the Secretaries of State, Justice, and Homeland Security directing their agencies to implement protocols and procedures on screening and vetting of visa applicants, Secretary of State Rex Tillerson issued a series of four cables to U.S. consular posts abroad. The cables, which were made public on March 23, were dated between March 10 and March 17. The March 10 cable directed consular posts to prepare to implement Executive Order 13780 by its effective date of March 16, but to await a further cable before actual implementation because of litigation over the provisions of the Executive Order (EO). The second cable, dated March 15, outlined full screening and vetting processes applicable to visa applicants at U.S. Consular posts abroad under the EO, including special processes arising from the EO's ban on visa issuance to nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, and special processes for nationals of Iraq who have spent time in ISIS-controlled territories; however, because of the U.S. District Court in Honolulu, Hawaii's order of March 15 barring enforcement of parts of the EO that single out specific nationalities, a third State Department cable, dated March 16, advised U.S. consular posts that the suspension of visa issuance pursuant to the barred nationality-specific sections of the EO must not be implemented, but other vetting provisions set forth in the March 15 cable could proceed. This was followed by the fourth cable, sent on March 17, in which Secretary Tillerson provided immediately effective guidance to all U.S. diplomatic and consular posts regarding the screening and vetting of visa applications.

The March 17 cable is applicable worldwide to the processing of visa applications by citizens of all countries, and it appears to presage visa denials and delays, stating that “[c]onsular officers should not hesitate to refuse any case presenting security concerns under §221(g) of the Immigration and Nationality Act (INA) in order to explore all available local leads and pending the outcome of [a security check] as appropriate, or issue any other refusals or take other precautionary actions pursuant to any applicable ground of inadmissibility under the INA. All officers should remember that all visa decisions are national security decisions. A consular officer should refuse under §214(b) of the INA any nonimmigrant visa applicant whom the consular officer believes may fail to abide by the requirements of the visa category in question.”

The cable also calls for profiling of visa applicants: consular posts are directed to create working groups to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny.” Once those applicant populations have been identified, consular officers are directed to “identify individual applicants that fall within the population set during the course of a consular visa interview” and if an individual applicant is otherwise eligible for a visa, the officer should consider requesting a Security Advisory Opinion (SAO). The cable also contemplates additional security-related questions being asked at interviews, once those questions are approved by the Office of Management and Budget. Consular Officers are also reminded in the cable to conduct the full range of background and security checks available under all pre-existing visa guidance, as well as “[m]andatory social media check for applicants present in a territory at the time it was controlled by ISIS.” The cable's guidance with respect to visa applications from applicants with prior presence in a territory at the time it was controlled by ISIS applies to applicants of all nationalities, and apparently goes beyond applicants present in certain territories within the six countries named in the EO's visa ban (Iran, Libya, Somalia, Sudan, Syria, and Yemen), because ISIS' territorial claims, while not named in the cable, have also included parts of Algeria, Afghanistan, Egypt, Iraq, Nigeria, Pakistan, and Saudi Arabia. The cable states that while the EO exempted nationals of Iraq from the visa suspension, the EO and presidential memorandum “contemplate[d] additional screening for Iraqi nationals in addition to the robust vetting already in place.” As such “[e]ffective immediately and until further notice, when adjudicating an application from an Iraqi national applying with an Iraqi passport, consular officers must consider whether the applicant was ever present in a territory at the time it was controlled by ISIS. If so, [the] post must submit a [security check].”

In recent years, when a visa application has entailed an SAO, the attendant visa delay, in which the visa applicant waits outside the United States for a decision on their visa application, has generally not exceeded two months. If the March 17 cable leads U.S. consular officers to request SAOs in more cases, SAO-related delays in visa issuance may grow longer. The cable also cautions of delays on the front end of visa application processes: posts are instructed that “to ensure that proper focus is given to each application, posts should generally not schedule more than 120 visa interviews per consular adjudicator per day . . .” and that “limiting scheduling may cause interview appointment backlogs to rise.”

Although the nationality-specific provisions of the EO's visa ban, currently barred by court action, were to be for a period of 90 days from March 16, 2017, the non-nationality-specific heightened screening and vetting processes set forth in the State Department cable of March 17 appear to be of indefinite duration.

© Jewell Stewart & Pratt PC 2017