- Provisions Taking Effect Immediately
On March 23, 2017, Reuters obtained four Department of State (DOS) cables relating to the implementation of visa interview procedures stemming from President Donald Trump's March 6 Executive Order 13780 titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“Travel Order”) [PDF version], and an associated Presidential Memorandum [PDF version] [link].1 The first two Cables related in part to sections 2 (suspension of entry of nationals of six countries) and 6 (suspension of refugee travel) of the Travel Order, both of which sections are currently blocked by the United States District Court for the District of Hawaii [see article]. Accordingly, Secretary of State Rex Tillerson directed DOS officers to not implement the portions of the first two cables relating to the implementation of the suspended provisions of the Travel Order [see 17 STATE 24800 (Mar. 17, 2017)]. However, other provisions of the DOS Cables are unaffected by the District Court temporary restraining order (TRO) against sections 2 and 6 of the Travel Order, and will therefore take effect immediately. In this article, we will examine the changes detailed in the DOS cables that will take effect immediately.
Please see our full articles on the Travel Order to learn about its provisions, including those provisions which are currently blocked from taking effect due to the ongoing litigation:
- Suspension of Entry [see article];
- Suspension of Refugee Travel [see article];
- Suspension of Visa Interview Waiver Program [see article];
- Differences Between March 6 and February 27 Travel Orders [see article]; and
- Other Provisions [see article].
On March 17, 2017, after issuing the Cable regarding the court order against sections 2 and 6 of the Travel Order, Secretary Tillerson issued a Cable detailing the changes to visa interview and vetting procedures that will nevertheless take effect immediately [see 17 STATE 25814 (Mar. 17, 2017)]. It is important to note that this guidance will not affect those who may avail themselves to the Visa Waiver Program (VWP).
Secretary Tillerson states in the March 17, 2017 Cable that “[t]he [Executive Order] and Presidential Memorandum highlight the critical importance of maintaining extra vigilance in the conduct of our work and continuing to increase scrutiny of visa applicants for potential security and non-security related intangibles.”
In accordance with this policy, Secretary Tillerson instructed that consular officers “should not hesitate to refuse any case presenting security concerns under [section] 221(g) of the Immigration and Nationality Act (INA).” Additionally, Secretary Tillerson reminded consular officers “that all visa decisions are national security decisions.” These instructions are not new policies but instead reiterations of Department priorities. Please see our full article to learn more about visa refusals under section 221(g) [see article]. Additionally, Secretary Tillerson advised that consular officers should refuse to issue a visa under section 214(b) if there is reason to believe that a nonimmigrant visa applicant “may fail to abide by the requirements of the visa category in question.”
After setting forth the top priorities for DOS officers, Secretary Tillerson introduced “preliminary measures” for increasing vetting of visa applicants. He added that “[a]dditional screening measures will be introduced based on the conclusions of the interagency working groups mandated by the [Executive Order], acting in accordance with applicable court orders.”
First, Secretary Tillerson reissued guidance from the second of the four Cables pertaining to the Travel Order [see 17 STATE 24324 (Mar. 15, 2017)]. The instant Cable supersedes the March 15 Cable. Secretary Tillerson instructed Consular Chiefs to convene their posts' “law enforcement and intelligence community partners under the auspices of existing Visa Viper or Law Enforcement Working Groups, as appropriate.” The purpose of such groups will be to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny.” In short, this indicates a long-term effort by the DOS to determine specific populations of visa applicants for whom increased scrutiny and vetting is required in consular processing. He further instructed that once such population sets are documented, consular posts “are required to direct adjudicating consular officers to attempt to identify individual applicants that fall within the population set during the course of a consular visa interview.” If an applicant from within such a population set is otherwise eligible for a visa, the Cable advises the interviewing consular officer to “consider sending a discretionary Donkey Security Advisory Opinion (SAO) request.” Such requests forward the case information to DOS headquarters for further investigation.
Next, Secretary Tillerson directs consular officers to disregard the guidance in the March 15 Cable relating to specific questions to ask certain visa applicants. This is because the DOS had not received approval from the Office of Management and Budget (OMB) for those specific questions. The question set forth in the March 15 Cable related to visa applicants from population sets discussed in the previous paragraph. These questions were as follows:
- Applicant's travel history over last 15 years;
- Names of any siblings/children/former spouses not recorded in the DS-160/260 or NIV/IVO case notes;
- Applicant's addresses during last 15 years (if different from current address);
- Applicant's prior passport numbers;
- Applicant's prior occupation(s) and employers (with a brief description if applicable) looking back 15 years;
- All phone numbers used by the applicant in the last five years; and
- All email addresses and social media handles used by the applicant in the last five years.
To reiterate, the March 17 Cable instructs consular officers to disregard guidance relating to these questions unless or until they are notified that the OMB has granted approval. We will update the website if and when further information is known. In the meantime, Secretary Tillerson instructs consular officers to “ask additional questions as necessary to understand the applicant's answers on application forms” and to “pursue any concerns that may arise during the interview.” Additionally, he instructs consular officers to follow all existing guidance in the Foreign Affairs Manual (FAM) at 9 FAM 304.2 (not publicly available).
One of the most noteworthy policies in the March 17 Cable is that Secretary Tillerson now requires that the following visa applicants be referred to the Fraud Prevention Unit for a mandatory social media review:
- Those who may have ties to ISIS;
- Those who may have ties to other terrorist organizations (besides ISIS); and
- Those who were at any time present in an ISIS-controlled territory.
Secretary Tillerson noted that further details on compliance with the social media review requirement will be provided to consular officers.
While Iraq was included in the list of countries for which the entry of nationals thereof was suspended in the original January 27 Travel Order, it was left off the list in the March 6 Travel Order. However, section 4 of the Travel Order sets forth additional screening requirements for Iraqi nationals. This guidance was also included in the Presidential Memorandum. Section 4 of the Travel Order was not blocked or by the U.S. District Court for the District of Hawaii. Therefore, its provisions remain in effect.
In the case of an Iraqi national applying for a visa with an Iraqi passport, Secretary Tillerson instructed consular officers to “consider whether the applicant was ever present in a territory at the time it was controlled by ISIS.” If so, the consular post must submit a Donkey SAO request to DOS headquarters for further consideration of the application. Iraqi nationals applying for a visa in the A/G/C2/C3/NATO visa categories are exempt from this requirement. This guidance went into effect immediately.
Finally, Secretary Tillerson instructs consular posts to ensure that not more than 120 visa interviews are scheduled per consular adjudicator per day. It is unclear whether this limitation will ultimately cause discernable changes for visa applicants. However, Secretary Tillerson acknowledges that “limiting scheduling may cause interview appointment backlogs to rise.” Whether this guidance causes backlogs to rise will likely depend on the number of applicants and adjudicators at a specific post, in addition to the number of cases that may warrant increased scrutiny.
The DOS Cables outline the changes that the DOS is already making to implement the guidance in President Trump's Travel Order. The extent of the changes that we will ultimately see will be unclear until a final resolution is reached in the ongoing litigation regarding sections 2 and 6 of the Travel Order. This is especially the case because both sections 2 and 6 contain provisions related to the vetting of visa applicants. Additionally, due to the unprecedented scrutiny being applied by the United States Court of Appeals for the Ninth Circuit and certain Federal district courts to the President's authority to make national security decisions relating to immigration, it is entirely possible that certain visa denials may receive attention from courts in a manner in which they have not previously.
Those seeking nonimmigrant or immigrant visas through consular processing are well advised to consult with an experienced immigration attorney. This is especially important for applicants from regions who may be scrutinized closely for terrorism and other national security concerns. An attorney will be able to assist an applicant in understanding what he or she may expect in an interview, preemptively addressing certain concerns, and possibly working with the consular post to increase the chances that a visa application is approved.