Update On Recent Consular Processing Changes And Update On Security Clearances For Third Country Nationals At Border Posts In Mexico/Canada
Consider the following real-life and increasingly common scenarios.
- John Blair, a British biochemist, applies for an H-1B visa in Vancouver, B.C. He is refused under section 221(g) and is informed that he will be contacted at the completion of administrative processing.
- Nilesh Patel, a British accountant and Canadian landed-immigrant, applies for an H-1B visa in Vancouver, B.C. He too is refused under section 221(g) and is informed that he will be contacted once administrative processing is complete.
- Muhammad Ali, a Pakistani Canadian landed-immigrant applies for a J-visa in Vancouver, B.C. to complete a U.S. medical residency and is refused under section 221(g). He is advised that he will be contacted once administrative processing is complete.
- Hector Gonzalez, a Spanish CEO, applies for an L-1A visa in Vancouver, B.C. He is refused under section 221(g) and is instructed that he will be contacted once administrative processing is complete.
- Bernie Wolfsdorf, a law student from South Africa, applies for an F-1 student visa in Vancouver, B.C. In his first year at Harvard, he was arrested for drunk driving, but the case was dismissed as the arresting officer failed to show up in court. He is refused under section 221(g) and is informed that he will be contacted once administrative processing is completed.
You are the attorney of record (better still, your competition is the attorney of record!) and this frustrated and angry client calls you. He is expected to return to the U.S. in 5 days and desperately wants to know what the implication of this "standard" section 221(g) refusal letter is. He does not understand why no one will tell him what is going on or how long the administrative process will take, other than "I'm sorry this case is subject to administrative processing -- we will notify you when we have a final decision". Advise Bernie Wolfsdorf that he has an NCIC hit (4-6 weeks) based on the arrest and that he needs to be careful in answering questions relating to how much he drinks, as he could be inadmissible as an alcohol "abuser".
What do you do?
(1) Check out the options for practicing PI/criminal law or (2) advise each of the alien's involved of the following:
Believe it or not, these are real-life scenarios that are increasingly common in these post-9/11 times. The following information may therefore be useful to avoid such situations or prepare adequately for them.
- Tell Mr. Blair that he is subject to a security advisory opinion because his occupation is on the Technology Alert List (TAL) and that it could take 3-6 months before the post receives clearance. See if he can attempt to re-enter on the visa waiver program if he is really lucky. If it was an extension, did he apply for a new visa with 60 days remaining on his current visa so that he could possibly re-enter the U.S. with a valid visa (determination on whether to cancel a visa is made on a case-by-case basis by the Consular Officer - see below)?
- Advise Mssrs. Patel and Gonzalez that they appear to have potential "hits" in the lookout system because of the common nature of their name, which matches someone with a record. Based on information recently entered into the NCIC criminal database, they will be subjected to a criminal background check which involves a full ten-print fingerprinting process and resulting in an approximate 4-6 week delay.
- Advise Mr. Ali that he may have a double "hit" -one based on the commonality of his name which is in the NCIC criminal database (4-6 week delay), and another hit because he is a male on the "List of 26" nationals that are subject to additional security clearances (3-4 concurrent week delay).
Visa Interview Requirement and Accompanying Delays
As mandated by the Department of State and effective as of August 1, 2003, consular posts must now interview most NIV applicants. A personal appearance waiver (PAW) may be granted by a consular officer to applicants who present no national security concern in limited situations: those who are under the age of 16, applicants who are over 60 years of age; diplomats; revalidations of the same visa classifications which are within 12 months of the visa expiration; or if determined a PAW would be in the national interest or because of unusual circumstances.
With the reduction of PAWs, applicants are facing significant delays in securing NIV appointments. There are already 4-6 week delays for interview appointments at many posts in Europe. Consular staff are often overworked. Last year, 843 consular officers interviewed 8.3 million visa applicants. Moreover, the DOS expects that for the indefinite future, many consular posts will face processing backlogs to issue the visa even after the interview. Attorneys should therefore counsel clients to make travel arrangements months in advance and to secure a visa appointment ahead of time. TCN processing in Mexico/Canada remains a viable alternative to these backlogs as TCN appointments are still readily available.
Requirement for Machine Readable Passports for Visa Waiver Applicants
The requirement that applicants under the Visa Waiver Program must present a machine readable passport is scheduled to take effect on October 1, 2003. Posts are expected to experience a significant increase in NIV applications in the next few months and applicants will likely face additional delays to obtain an appointment at an embassy or consulate in their home country.
The State Department is currently working with visa-waiver country governments to review the progress made by these countries on including an acceptable bioidentifier on machine readable passports. The DOS may grant a one-time, one-year waiver of this requirement on a country-by-country basis if certain conditions are met, thus delaying implementation until October 26, 2004. However, this waiver possibility does not extend to Belgium, whose citizens have been required to present machine readable passports since May 15, 2003.
Security Clearance Update - TCN Applicants from "List of 26" Countries Cleared in Several Weeks in Canada
Based on our most recent trip to Canada, List of 26 Applicants' clearances were processed within several weeks of the NIV application. Nationals from Ashcroft "List of 26" countries and "Terrible 7" (T-7) countries may apply on a case-by-case basis (determined by the Consul), at certain posts in Canada. Applicants must be prepared to wait either in Canada or outside of Canada while the security checks are pending and cannot re-enter the U.S. until the clearance is completed and the visa is issued. The applicant must possess the proper visa to enter and remain in Canada or re-enter Canada. In certain situations where an applicant is applying for a visa in the same category as previously issued, applicants should consider applying 60 days prior to the expiration of a valid multiple-entry visa, (if applicable) in order to avoid delays. The applicant must specifically make a request to the Consular Officer not to cancel the valid visa so that the applicant may use the visa to re-enter the U.S. while the security checks are pending. Consular Officers will consider the request on a case-by-case basis.
Security Clearance Update for Non List of 26/T-7
The initiation of security checks have also increased for other NIV applicants as a result of "hits" based on new information in government databases.
False hits are occurring with increased regularity for those with common names (e.g., John Smith or Juan Gonzalez), even without a prior arrest, but can take 6-8 weeks to process. As many as half of the 7 million names recently dumped into the CLASS system are Latino and this is causing extensive false hits and delay for persons with common Latino names. If you have a client with a common name or arrest/conviction, TCN processing in Mexico may be advisable, because posts in Ciudad Juarez and Mexico City have implemented a pilot fingerprint program, which processes clearances on "false" hits in the same day, while records for positive hits are often received in two days.
Clearances for Technology Alert List (TAL) hits for sensitive technologies - the so-called Mantis clearance for "dual" use technologies (technologies that have both civilian and military applications) can take 3-6 months.
In the near future, all consular posts will implement a biometrics requirement on visa applications - again leading to less PAW and more backlogs as all visa applicants must undergo digitally photography and digital fingerprinting. This requirement has already been implemented at certain posts in Mexico, and posts in Canada are gearing up for implementation of this biometrics requirement.
The focus by consular posts on security procedures is rigorous, especially as the November 2003 deadline for the completion of the MOU (Memorandum of Understanding) approaches between the Department of Homeland Security and Department of State concerning the transfer of the visa issuing authority from the DOS to the DHS. In practice, it is anticipated that DOS will continue to issue visas but subject to the control and scrutiny of the DHS.
DHS Officials Already in Place at Certain Posts
As mandated by the Homeland Security Act of 2002, DHS officials have already been placed in Saudi Arabia. Most consular posts will soon follow with the placement of DHS officials who will have the authority to direct a consular officer to refuse a visa if it is deemed necessary or advisable in the foreign policy or security interests of the U.S.
Based on the above-mentioned changes, many European and Asian posts are experiencing significant delays for scheduling of NIV appointments. Meanwhile, revalidation of visas through the Visa Office typically takes 10-12 weeks. In light of these delays, TCN processing in Mexico and Canada continues to be highly desirable - especially since most TCN posts are quite fair, appointments are readily available, and visas are generally issued the same day as the interview.
About The Author
Bernard P. Wolfsdorf, Esq. practices exclusively in the area of immigration and nationality law in Los Angeles. He is a California state bar-certified specialist in immigration and nationality law and is listed in Martindale Hubbell's Preeminent Specialist Directory, and in the International Who's Who of Corporate Immigration Lawyers. He currently serves on AILA's Board of Governors and on the ABA Commission on Immigration. He has previously served on several AILA liaison committees, including the AILA/CSC Liaison Committee and the State Department Liaison Committee. With offices in New York, Torrance and Pacific Palisades, the firm assists applicants with consular visa interviews. Mr. Wolfsdorf is a frequent lecturer on consular processing and can be contacted at email@example.com or 1(800)-visa-law.
Avi Friedman, Esq. is a Senior Attorney with Wolfsdorf Associates in Los Angeles, California, and practices exclusively in the area of immigration and nationality law. He has a B.A. degree in Political Science from the University of California, Los Angeles, and a J.D. degree from Loyola Law School, Los Angeles. Mr. Friedman currently serves as the Consular Affairs Liaison for AILA's Southern California Chapter. He is the author of various immigration related articles, including "U.S. Consulate General in Nogales, Mexico" and "U.S. Consulate in Monterrey, Mexico" for AILA's The Visa Processing Guide 2002-03 Edition. Mr. Friedman was a speaker for the three part teleconference seminar "Latest Developments relating to Consular/Visa Issues & Border Security," a panelist at the AILA Southern California Chapter roundtable on "Satisfying the Gatekeepers at DOS and U.S. Consulates," and a panelist at the NAFSA Region VII Conference "Caught in the Web, the Matrix of New Security Measures Affecting Students and Exchange Visitors." He has extensive experience in consular processing and frequently travels to U.S. consulates in Mexico and Canada to represent clients at visa interviews. Mr. Friedman can be contacted at: firstname.lastname@example.org
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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