New Developments Regarding Consular Processing and Security Clearances for Third Country Nationals at Border Posts in Mexico/Canada

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1 Immigration Section Newsletter Fall 2003, Vol. 5 New Developments Regarding Consular Processing and Security Clearances for Third Country Nationals at Border Posts in Mexico/Canada Consider the following common scenarios: by Avi Friedman & Bernard P. Wolfsdorf A) 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. B) 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. C) 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. D) 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. E) Tom Maddox, 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. Each of these cases involve security clearance issues: Mr. Blair is subject to a Security Advisory Opinion (SAO) because his occupation (biochemist) is on the Technology Alert List (TAL) and it could take 3-6 months before the post receives clearance. If he was applying for an extension of his H-1B visa, did he apply for the new visa with 60 days remaining on his current visa? If so,

2 he can attempt to re-enter the U.S. with his valid visa (that is, if the consular officer did not incorrectly cancel his visa). His second option is to attempt to re-enter on the visa waiver program. Mr. Patel and Mr. Gonzalez appear to have potential "hits" in the lookout system because of their common names. Apparently, someone else with a matching name and similar date of birth has a record in the system. Based on information recently entered into the National Crime Information Center (NCIC) criminal database, they will be subject to a criminal background check which involves a ten-print fingerprinting process, an $85 fee, and an approximate 4-6 week delay. Mr. Ali may have a double "hit." One is based on his common name, which is in the NCIC criminal database (4-6 week delay), the other hit is because he is a male on the "List of 26" nationals that are subject to additional security clearances (3-4 concurrent week delay). Mr. Maddox has an NCIC hit (4-6 weeks) based on the DUI arrest. He must be very careful when answering questions relating to how much he drinks, as he could be found inadmissible as an alcohol abuser." These are real-life scenarios which have become increasingly common in these post- 9/11 times. The following information may be useful to avoid such situations or in preparing adequately for them. A. NIV Interview Required for Most Applicants - Accompanying Delays As mandated by the Department of State (DOS) 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 PAW s, applicants face significant delays in securing NIV appointments. There are currently 4-6 week delays for interview appointments at many posts in Europe. Consular staff is 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 approval at the interview. Applicants are advised to make travel arrangements months in advance and secure a visa appointment ahead of time. Third Country National (TCN) processing in Mexico/Canada remains a viable alternative to these backlogs as TCN appointments are still readily available. B. Machine Readable Passports Required for Visa Waiver Applicants

3 The requirement that applicants under the Visa Waiver Program must present a machine readable passport was scheduled to take effect on October 1, The DOS granted a one-time, one-year waiver of this requirement, delaying implementation until October 26, 2004 for the following countries: Australia, Austria, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, and the United Kingdom. Citizens from Andorra, Belgium, Brunei, Liechtenstein, Luxembourg, and Slovenia have NOT been granted a postponement and must have machine readable passports to enter the U.S. under the visa waiver program. C. Security Clearance Update - TCN Applicants from List of 26 Countries Cleared in ONE DAY in Canada In our most recent trip to Canada (last week of October), we assisted NIV applicants from Muslim countries with their TCN applications. It resulted in clearances and visa issuance on the same day. On our previous trip in September, clearances were issued in one week. Since the Condor Security Advisory Opinion (SAO) is classified, there has been no official announcement from DOS. However, it appears that a new directive has been issued allowing consular officers to possibly waive or expedite the Condor clearance in certain situations. The consular officers conducted a thorough review of the visa application forms including careful review of the Form DS-157. This may indicate that one of the criteria for waiving or expediting the Condor clearance relates to work activities abroad and/or having been in the U.S. for many years. Our clients had been in the U.S. for several years. In our case, the post requested the applicants to electronically file Form DS-156 in advance of the interview. It is possible that some check was conducted prior to the interview (this is pure conjecture, as the database was also carefully checked in our presence.) Nationals from Ashcroft "List of 26" countries may apply on a case-by-case basis, 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, in order to avoid delays. The applicant must specifically request the Consular Officer to NOT cancel the valid visa so that the applicant may use the visa to re-enter the U.S. while the security checks are pending. According to the most recent information released by the Department of State, the average processing time for all security checks is 30 days (approximately 80% are processed within 30 days). If you have a case where a Condor check has been pending over 90 days, you should follow up with the post first. If you do not receive a reply, contact the Visa Office at (202) or them at usvisa@state.gov. There is no mechanism to expedite any of the security checks. Often the delays are not with the

4 Department of State, but with other government agencies, which may not have sufficient funding to perform the check and do not treat them as priorities. D. Security Clearance Update for NON List of 26/T-7 The initiation of security checks have 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) and 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 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. They can processes clearances on false hits in the same day, while records for positive hits are often received in two days. Clearances for TAL hits for sensitive technologies (the Mantis clearance for dual use technologies, i.e. technologies that have both civilian and military applications) can take 3-6 months. If a Mantis check is pending over 90 days, you can the SAO Problem Resolution Unit at saoinquiries@state.gov. There has been a substantial revision and guidance regarding TAL which was issued to posts on October 1, Since the cable is classified, it is too early to see the full effects of the cable (although more applicants are being subjected to Mantis clearances and lengthy processing delays). In the near future, all consular posts will implement a biometrics requirement on visa applications, the deadline is October This leads to less PAW and more backlogs as all visa applicants must undergo facial recognition biometrics (a digital photograph) and fingerprint biometrics (electronic fingerprints of the left and right index finger). This requirement has already been implemented at certain posts in Mexico and posts in Canada are gearing up for implementation of this biometrics requirement. With this deadline approaching, expect mandatory interviews for virtually all non-immigrant visa applicants and current delays will lengthen. E. MOU Completion and DHS Officials in Place at Certain Posts Consular posts security procedures are rigorous, especially with the completion of the MOU (Memorandum of Understanding) between the Department of Homeland Security and Department of State. This concerns the transfer of authority to issue visas 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 are not present at the interviewing window but play an advisory role in terms of national security concerns. As mandated by the Homeland Security Act of 2002, DHS officials have already been placed in Saudi Arabia (Riyadh and Jeddah). Most consular posts will soon follow with

5 the placement of DHS officials who will have the authority to direct a consular officer to refuse a visa (both immigrant and non-immigrant) if it is deemed necessary or advisable in the foreign policy or security interests of the U.S. CONCLUSION The recent security changes are heavily affecting consular processing throughout the world. The transition for many posts to require NIV interviews is causing tremendous backlogs and delays. Clearance requests for Condor, Mantis, and NCIC hits are also contributing to the delays. In addition, revalidation of visas through the Visa Office typically takes weeks. Security checks at the posts in Mexico City and Ciudad Juarez for NCIC hits seem to be conducted in a more timely manner due to the pilot program in place. Also, the new possibility for list of 26 NIV applicants to be issued visas within one week or less in Canada is a tremendous advantage. The alternative, applying in their home country, can often result in waiting times of several months. In light of these advantages and the delays experienced at non-border posts, TCN processing in Mexico and Canada continues to be highly desirable, especially since most TCN posts are experienced with NIV applications, appointments are readily available, and visas are generally issued the same day as the interview. Please be advised the information in this advisory is gleaned from a variety of sources of varying reliability. It is not legal advice and even where accurate may be subject to change. Avi Friedman 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 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: afriedman@wolfsdorf.com or visa-law x249. Bernard P. Wolfsdorf 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 Pre-eminent Specialist Directory,

6 and in the International Who's Who of Corporate Immigration Lawyers. He currently serves on AILA's Board of Governors and previously served on several AILA liaison committees, including the AILA/CSC Liaison Committee, AILA INS Enforcement Committee, and the State Department Liaison Committee. With attorneys in New York, Oakland, Portland and Los Angeles, the firm also assists applicants with consular visa interviews. Mr. Wolfsdorf is a frequent lecturer on consular processing and can be contacted at bernard@wolfsdorf.com or 1(800)-visa-law.

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