U.S. Secretary of State Rex Tillerson sent four cables to consular officers between Mar. 10 and 17 with preliminary instructions for stricter vetting of U.S. visa applicants. The cables emphasize that “all visa decisions are national security decisions” and that additional screening may “may cause interview appointment backlogs to rise.”

Background

• During the presidential campaign, Donald Trump promised “extreme vetting” of visa applicants to uncover “any hostile attitude towards our country or its principles, or [those] who believe[ ] sharia law should supplant American law…. Those who d[o] not believe in our Constitution or who support bigotry and hatred will not be admitted for immigration into our country.” “In the Cold War,” he said, “we had an ideological screening test. The time is overdue to develop a new screening test for the threats we face today. . . . I call it extreme, extreme vetting.”
• As a candidate, Trump accompanied his calls for “extreme vetting” with xenophobic statements that Mexico is “sending” its “rapists” to America and that a “total and complete shutdown of Muslims entering the United States” is necessary to prevent terrorism.
• After his inauguration, President Trump issued a Jan. 27 executive order (EO) on “Protecting the Nation from Terrorist Attacks.” That EO banned entry of nationals from 7 Muslim-majority countries. It also required the Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the FBI to implement “uniform” standards to vet applicants for all immigration benefits, including visas.
• That EO was re-drafted and re-issued on Mar. 6, after parts were suspended by the courts. The new EO bans entry  of nationals from the same countries, with the exception of Iraq, and repeats the order to more strictly vet applicants for immigration benefits..
• On Mar. 6, the President also issued a memo to the Secretaries of State and Homeland Security and the Attorney General, with more specifics on heightened screening and vetting of applicants for immigration benefits. While new procedures are being put into place, the memo tells agencies to rigorously enforce all existing grounds of ineligibility.

Key Provisions of the Cables

The four State Department cables take “preliminary measures” to implement the President’s Mar. 6 order. These measures apply to applicants for both nonimmigrant (temporary) visas and immigrant (permanent residence) visas. The cables instruct consular officers that they should “not hesitate” to use their power to investigate visa applications and to deny applications where appropriate.

The cables lack the President’s fiery campaign rhetoric. The cables are stated mostly in neutral terms. But what’s missing from the cables is any guidance for consular officers on how to properly exercise their judgment in wielding their enormous powers, such as to decide when to launch a possibly prolonged investigation or deny a visa application. As such, the cables may be interpreted by some as a green light to act on xenophobic tendencies such as those voiced by the President.

Do Not Hesitate to Investigate: Tillerson states, in one cable, that consular officers “should not hesitate to [temporarily] refuse any case presenting security concerns” in order to first investigate “all available local leads” and request security advisory opinions (SAOs) as appropriate. An SAO is an opinion about a case provided by the State Department in Washington, DC, which is prepared by first soliciting opinions from a slew of federal law enforcement, intelligence, and defense agencies about whether a visa applicant presents a security risk. Tillerson encourages investigations by reminding consular officers that “all visa decisions are national security decisions.” (Cable 25814 ¶4). Consular officers do not provide to visa applicants information about what is being investigated or estimates of how long such investigations may take. While some most investigations (referred to in communications with visa applicants as “administrative processing”) are completed within 60 days, some take years.

Develop Risk Profiles: One cable tells consular chiefs at each U.S. Embassy and Consulate to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny.” Consular officers should then consider sending requests for SAOs for applicants that fall within such criteria. (Cable 25814 ¶¶6-7). Amnesty International has written to TiIlerson that such profiles could provide a pretext for barring individuals based on national origin, religion, as well as nonviolent beliefs and expression. Many posts already have such profiles. WikiLeaks published a number of leaked classified profiles in 2010. So Tillerson is really just encouraging more of the same.

Ask Additional Questions: Consular officers are encouraged to ask additional questions, such as:

• The applicant’s travel history over the last 15 years
• The names of any siblings/children/former spouses
• The applicant’s addresses during the last 15 years
• Applicant’s prior passport numbers
• Applicant’s prior occupation(s) and employers (plus a brief description if applicable) looking back 15 years
• All phone numbers used by the applicant in the last five years
• All email addresses and social media handles used by the applicant in the last five years.

(Cable 24324 ¶7). An earlier cable would have made it mandatory to ask such questions to persons who fall within a post’s risk profiles. (Id.) But the most recent cable back tracks, leaving it to officers’ discretion whether to ask such questions, since making the questions mandatory first requires approval from the Office of Management and Budget (OMB). (Cable 25814 ¶8).

Officers Should Deny Applications under Section 214(b) if They “Believe” the Applicant May Fail to Abide by the Terms of the Visa: One cable provides a reminder that “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.”  (Cable 25814 ¶¶4, 7).The most common basis for issuance of a 214(b) denial is that the applicant failed to prove an unabandoned foreign residence or nonimmigrant intent. In other words, such denials are on the basis that the applicant has failed to prove such strong family, economic, and social ties to their home country that it is clear they will return home after temporary travel to the United States. Another common basis for a 214(b) denial is that the applicant has failed to convince the officer that they will abide by the terms of the visa, such as avoiding unauthorized work, departing the U.S. not later than the date required, avoiding crime, and participating in required activities (for example, an F-1 student visa holder must take a full course load at school). Section 214(b) applies to applicants for B1/B2 (visitor for business or pleasure), F-1 (student), and J-1 (exchange visitor) visas, among others. Section 214(b) does not apply to H-1, L-1, or immigrant visa applicants. Section 214(b) places the burden of proof on the applicant, so a consular officer should deny an application unless the officer is persuaded that the applicant has nonimmigrant intent and will abide by the visa’s terms. Notably absent from the cable is any guidance on how a consular officer should exercise their judgment in making 214(b) determinations. An officer’s “belief” without any foundation is an insufficient basis for making a decision. As the State Department has emphasized in the past, “Proper visa adjudication requires you to assess the credibility of the applicant and of the evidence he or she submits in support of the application.” 9 FAM 302.1-2(B)(6). See 9 FAM 401.1-3(E). Adjudication must be based on more than “mere conjecture or speculation.” 9 FAM 102.3-1.

Impact of the Cables on Visa Applicants

Chodorow Law Offices is analyzing the newly-released State Department cables and related developments. We will communicate directly with affected clients. Generally, visa applicants should be alerted to:

Expect delays in scheduling consular appointments. The cables encourage more thorough questioning of visa applicants. Tillerson further states that “In order 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. Please [note] that limiting scheduling may cause interview appointment backlogs to rise.” (Cable 25814 ¶13). So applicants should plan as early as possible for U.S. travel.

Expect additional questions such as those listed above. It’s too early to tell which applicants may be asked such questions. They may be reserved for persons selected for SAOs because they fit within a  particular profile. A cautious approach may be to attend the appointment interview with written answers prepared in advance.

Expect more SAOs. The cables encourage consular officers not to hesitate to request SAOs, including under the new risk profiles that Secretary Tillerson is asking consular posts to develop. We expect that SAOs will be requested in a higher percentage of cases. Some SAOs will be requested based on how an applicant fits a profile, such as based on their hometown, profession, ethnicity, and/or religion.

Expect SAOs to take longer. Currently, officers typically request an SAO, if necessary, at the conclusion of a consular appointment. Currently, most SAOs are completed in about 30-60 days, although some take years. With more SAOs, the State Department or other agencies whose opinions are solicited during an SAO may develop greater backlogs. SAO times may increase, thereby delaying visa issuance.

Expect more 214(b) denials. Expect the 214(b) refusal rate to rise as some consular officers interpret Secretary Tillerson’s cables to allow denials based on “beliefs” lacking any foundation, without regard to traditional State Department focus on evaluating the evidence and assessing the credibility of the applicant.