What happens when you contravene the worldwide nonimmigrant visa referral policy? It depends.

Posted: 4:08  am EDT
Updated: 2:29 pm EDT

 

Our State Department friends have a favorite response to most questions. “It depends.”

About 10 years ago, State/OIG conducted a review of the Visa Referral Process in Nonimmigrant Visa Adjudication.

By law neither an ambassador nor a DCM can direct a consular officer to issue a particular visa. Even the Secretary of State has no authority to override a consular officer’s deci­ sion, pursuant to the Immigration and Nationality Act, 8 USC 1104. Recognizing the importance of the visa process both as a bilateral diplomatic issue and as a legitimate diplomatic tool for achieving U.S. aims, and considering the importance of providing as much information as possible to consular officers, the Department has long understood the need for a policy and system to allow all elements of the mission to benefit from the visa system and to protect consular officers from inappropriate pressure. After September 11, 2001, this system has been signifi­ cantly strengthened.
[…]
Based on the results of the survey, observations in the field, and discussions in Washington, OIG concluded that most ambassadors and DCMs appear to under­ stand the importance of their personal oversight of the referral system and that there are serious repercussions, including removal from post, in the most egregious cases of abuse. While Department oversight of referral systems is important, entrusting chiefs of mission with local supervision and responsibility is still appro­ priate and necessary, just as the Department entrusts chiefs of mission with the lives of all employees and dependents in their missions, the management of top secret information, and the conduct of key bilateral relations with the host country.
[…]
Clearly most missions’ front offices are overseeing the referral system as intended by the Department, sometimes after a little persuasion. For example, an officer at a post that was having problems said, “Our recent OIG inspection was helpful in making the front office realize the impact of their interventions with us and the appearance of undue influence. Despite our education of the front office, they have been incredulous that their good causes may pose us problems under the law.” One of the areas of emphasis for OIG inspection teams is border security readiness, which includes oversight of the referral program.

The survey, however, did reveal some disillusionment with the available recourses in those instances when the front office was itself exerting undue influ­ence. One officer at a post in the Near East said, “In general the consular section feels pressure to act simply as a rubber stamp to visa referrals by chiefs of section and above.” Another stated,“The front office is the only section that has ever tried to influence decisions in referral cases. If I were to refuse the case, then I would be hurt in the employee evaluation report (EER) process as my rater is the DCM and the Ambassador is the reviewing officer.”

It’s an instructive read from 2005, see in full here (PDF).

Let’s fast forward to two cases in 2015 specifically mentioned by State/OIG. The following is from the State/OIG inspection report of the U.S. Embassy in Tajikistan (PDF). The IG report lists Susan M. Elliott as COM, and Robert G. Burgess as DCM.

The Offices of Visa Services and Fraud Prevention Programs, the Consular Integrity Division, and the front office of the Bureau of Consular Affairs all expressed concern about the embassy’s contravention of the worldwide visa referral policy. In the latter half of 2013, the Ambassador in seven cases and the DCM in two cases contravened the worldwide nonimmigrant visa referral policy by submitting noncompliant referrals and improperly advocating for issuance.

Complications arising from noncompliance with the policy led to deteriorating relations between the consular officer and other embassy offices, perceptions of intimidation and isolation, and increased involvement of and intervention by various offices in the Bureau of Consular Affairs. In response to revised guidance from the Bureau of Consular Affairs on referral policy, dated January 13, 2014, Embassy Dushanbe issued a management notice on January 17, 2014. On October 15 and 17, 2014, the embassy conducted briefings for referring officers and obtained current compliance agreements reflecting the revised policy guidance. The OIG team met with the front office and the consular officer, and they confirm that they understand and are committed to continuing to comply with the policy going forward.

How is it that this consular officer did not get the Barbara Watson Award for demonstrating courage?

C’mon!

The “Worldwide Visa Referral Policy Problems” below is from the State/OIG report of the U.S. Embassy in Armenia (see PDF). According to the IG report, the ambassador at that time was John Heffern:

In at least 15 documented cases, the Ambassador contravened the worldwide nonimmigrant visa referral policy (9 FAM Appendix K, Exhibit I) by contacting the consular chief to communicate information about visa applicants instead of providing referral forms for the applicants. The referral policy states, “Referrals are the only allowed mechanism to advocate for or assist visa applicants prior to visa adjudication.” Some of the cases involved previously refused applicants. Referral policy permits requesting assistance via referral on behalf of previously refused applicants only in extremely limited circumstances. Few, if any, of the violations involved applicants who would have been eligible for visa referrals. The consular chief did not take adequate steps to stop the Ambassador’s inappropriate communications or to report them to the Department, as required by Department referral polices.
[…]
The embassy provides no formal, detailed briefing (“referral school”) as recommended in the worldwide policy. The consular chief gives informal referral briefings on an individual basis to new arrivals at the embassy. Lack of a formal understanding of the referral policy and process can cause misunderstanding or abuse.

Wow! And the consular section chief got harshly treated by the … the um alphabet, which did not quite line up to say he/she was at fault but you get the idea.

It is not clear what kind of repercussions are suffered by chiefs of mission who contraven the worldwide nonimmigrant visa referral policy.   According to a FAM update last November 2015, Consular Affairs has now added a NIV Referral Program Ombudsman (see 9 FAM 601.8-8(C).

Oh, wait, there’s more.

There’s an FSGB case where an FP-03 Diplomatic Security (DS) Special Agent (SA) with the Department of State (Department) was warned that there were strict prohibitions against anyone attempting to influence the visa process. The State Department later proposed to suspend him for four days on a charge of Misuse of Position. The proposal was sustained by the Grievance Board on March 3, 2015.

On October 5, 2010, a family friend of his (REDACTED), a (REDACTED) national, applied for a B1/B2 non-immigrant visa at the U.S. Embassy in REDACTED. His stated purpose for the visa request was to visit with grievant in the U.S.  When the application was denied, grievant sent an email on that same date from his State Department account to REDACTED, the Deputy Consular Section Chief in REDACTED voicing his disappointment that his friend’s visa application had been turned down. In the email, grievant asked for assistance, provided additional information on behalf of his friend and cited his own experience as a DS officer who had collaborated with consular officials investigating fraud cases. All of grievant’s emails contained his electronic signature and identified him as “Special Agent, REDACTED, U.S. Department of State, Bureau of Diplomatic Security.” In response to this email, re-interviewed and approved his visa application. REDACTED subsequently visited grievant in the US.

To make the long story short, grievant was investigated (PDF) by DS for his efforts to procure visa approvals for his friend.

The Department reviewed the DS report of investigation (ROI) and determined that between 2010 and 2012, grievant used official communication channels to contact consular officials in the U.S. Embassy in and identified himself as a DS Special Agent in order to influence favorable decisions on visa applications submitted by his friend. On December 2, 2014, grievant received notice of the Department’s proposal to suspend him for four days on a charge of Misuse of Position. The proposal was sustained on March 3, 2015.

So. Right.

It depends.

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Visa Fraudster With 25 Fraudulent H-1B Visa Petitions Gets 3 Years Probation and $400,000 Forfeiture

Posted: 12:01 am EDT

 

Via state.gov/ds:

OAKLAND, Calif. – A federal judge has sentenced a British man to three years of probation and the forfeiture of $400,000 for his role in a visa-fraud scheme, announced Special Agent In-Charge David Zebley of the U.S. Department of State’s Diplomatic Security Service (DSS) San Francisco Field Office.

Madhu Santhanam, 41, was sentenced on January 7, 2016, by U.S. District Judge Yvonne Gonzalez Rogers in the Northern District of California following Santhanam’s guilty plea to a count of conspiracy to commit visa fraud.

In his December 10, 2014, plea agreement, Santhanam, owner of Maan Systems of Union City, California, admitted that he had submitted at least 25 fraudulent I-129 petitions between September 2009 and June 2013. Employers must submit these documents to obtain H-1B visas for highly skilled immigrant applicants seeking to work in the United States.

In many of his fraudulent I-129 applications, Santhanam falsely indicated that the applicants would be working at his company or placed at Fortune 500 companies, but instead he placed the workers at unapproved worksites. As part of his plea agreement, Santhanam paid a forfeiture judgment totaling $400,000.

The successful prosecution was the result of an investigation led by the DSS special agent assigned to the Document and Benefit Fraud Task Force (DBFTF), an interagency investigative body overseen by the Homeland Security Investigations Directorate of the U.S. Department of Homeland Security’s Immigration and Customs Enforcement.

So no jail time, only probation, and he forfeited $400K to USG, which is about $16K per fraudulent H1-B visa petition. A high risk, high return enterprise.

When the guilty plea was announced in December 2014, DOJ says that the maximum statutory penalty for conspiracy to commit visa fraud, in violation of 18 U.S.C. §§ 371 and 1546, is a maximum term of 5 years in prison, a fine of $250,000, and 3 years of supervised release.

Wow! All that work for the feds, and over 12 months after the guilty plea, and not a single day in jail. What does it take before fraud like this gets taken seriously enough that we actually put people in jail?

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US Implements Visa Waiver Restrictions For Dual Nationals From Iran, Iraq, Sudan, and Syria

Posted: 6:09 pm EDT

 

The ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes a provision for “terrorist travel prevention and visa waiver program” officially called the ‘‘Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015’’.  The new law which affects dual nationals from WVP countries and Iran, Iraq, Sudan and Syria includes a waiver to be be exercised by the DHS secretary.  The new law also requires the Secretary of Homeland Security to submit to the Committee on Homeland Security, the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on the Judiciary of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, the Select Committee on Intelligence, and the Committee on the Judiciary of the Senate a report on each instance in which the Secretary exercised the waiver authority during the previous year.

On January 21, the State Department announced the implementation of the changes to the Visa Waiver Program. Below is the announcement:

The United States today began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). U.S. Customs and Border Protection (CBP) welcomes more than a million passengers arriving to the United States every day and is committed to facilitating legitimate travel while maintaining the highest standards of security and border protection. Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

These individuals will still be able to apply for a visa using the regular immigration process at our embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis.

Beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked.

Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

Again, whether ESTA applicants will receive a waiver will be determined on a case-by-case basis, consistent with the terms of the law. In addition, we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.

Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a valid nonimmigrant visa issued by a U.S. embassy or consulate. Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States.

The new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation.

An updated ESTA application with additional questions is scheduled to be released in late February 2016 to address exceptions for diplomatic- and military-related travel provided for in the Act.

Information on visa applications can be found at travel.state.gov.

Current ESTA holders are encouraged to check their ESTA status prior to travel on CBP’s website at esta.cbp.dhs.gov.

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A couple days ago ….

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Snapshot: Number of “T” Visa Applications, FY2005-2014

Posted: 12:24 am EDT

 

Via DHS/OIG:

Congress passed the Victims of Trafficking and Violence Protection Act (VTVPA) of 2000 (Pub. L. 106-386). Among other provisions, the Act created the T nonimmigrant status (T visa) to provide temporary immigration benefits to foreign nationals and aliens who are victims of severe forms of trafficking in persons.  To be eligible for a T visa, victims must (a) be in the United States on account of trafficking; (b) face extreme hardship involving unusual and severe harm if removed; and (c) with two exceptions, comply with reasonable requests for assistance from law enforcement in the investigation or prosecution of the acts of trafficking.

USCIS data on trafficking victims were limited to foreign national victims who had applied for T or U nonimmigrant status. This included individuals who had entered the United States legally as visitors, temporary workers, or others without lawful status.8 According to USCIS data, fewer than 1,000 foreign national victims applied for T visas each year from 2005 to 2014. Figure 3 shows a steady increase in T visa applications for this timeframe. However, this number remains small in comparison with the estimated hundreds of thousands of human trafficking victims in the United States, and is far below the 5,000 T visas that Congress sets aside for human trafficking victims every year.

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As depicted in table 1, our analysis of USCIS data from October 1, 2005, through September 2, 2014, showed that 3 percent of T visa applicants were minors while 61 percent were between 30 and 49 years old. T visa applicants were evenly divided by marital status and almost equally divided in terms of gender. Further, 41 percent of T visa applicants were from three Asian countries. The Philippines had the highest number of applicants (20 percent), followed by Mexico with 16 percent. Most T visa applicants did not report the method by which they entered the United States, although 10 percent self- reported they had no lawful status at the time of application. While the information pertains only to those victims who applied for T visa status, it does shed some light on the characteristics of foreign national victims and their origins, and could be useful in identifying human trafficking activity.

 

Congress Authorizes Petition Fee Increases For Certain L-1 and H1B Visas Until Sept 30, 2025

Posted: 3:05 am EDT

 

A section of the ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes an item on the temporary increase of “visa fee” for L-1 and H1B, as well as extensions.  The processing fee for petition based visa categories like L (Intracompany Transferees) and H (Temporary Workers/Employment or Trainees) visas is currently posted on travel.state.gov at $190.00. It looks like the bump in fees is really for the L-1 and H1B visa petition fees (with DHS) and not for the visa processing fees collected by the State Department.

The new law talks about the “combined filing fee and fraud prevention and detection fee” which are fees already collected by DHS.  Under Pub. L. 111-230, DHS/CIS charges $2,000  for H-1B petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the United States in H-1B, L-1A or L-1B nonimmigrant status. Under the same law, L1 petitioners are also charged $2250. Both provisions ended on October 1, 2014, but were extended through September 30, 2015 by Pub. L. 111-347. The temporary bump in the L1 and H1B petition fees under Public Law No: 114-113 that just passed will be good until September 30, 2025.

‘‘SEC. 411. 9-11 RESPONSE AND BIOMETRIC ENTRY-EXIT FEE.

‘‘(a) TEMPORARY L-1 VISA FEE INCREASE.—Notwithstanding section 281 of the Immigration and Nationality Act (8 U.S.C. 1351) or any other provision of law, during the period beginning on the date of the enactment of this section and ending on September 30, 2025, the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)), including an application for an extension of such status, shall be increased by $4,500 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are nonimmigrants admitted pursuant to subparagraph (H)(i)(b) or (L) of section 101(a)(15) of such Act.

‘‘(b) TEMPORARY H-1B VISA FEE INCREASE.—Notwithstanding section 281 of the Immigration and Nationality Act (8 U.S.C. 1351) or any other provision of law, during the period beginning on the date of the enactment of this section and ending on September 30, 2025, the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)), including an application for an extension of such status, shall be increased by $4,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act.

‘‘(c) 9-11 RESPONSE AND BIOMETRIC EXIT ACCOUNT.—‘‘(1) ESTABLISHMENT.—There is established in the general fund of the Treasury a separate account, which shall be known as the ‘9–11 Response and Biometric Exit Account’.

‘‘(2) DEPOSITS.—

‘‘(A) IN GENERAL.—Subject to subparagraph  (B), of the amounts collected pursuant to the fee increases authorized under subsections (a) and (b)—

‘‘(i) 50 percent shall be deposited in the general fund of the Treasury; and

‘‘(ii) 50 percent shall be deposited as offsetting receipts into the 9–11 Response and Biometric Exit Account, and shall remain available until expended.

‘‘(B) TERMINATION OF DEPOSITS IN ACCOUNT.—After a total of $1,000,000,000 is deposited into the 9–11 Response and Biometric Exit Account under subparagraph (A)(ii), all amounts collected pursuant to the fee increases authorized under subsections (a) and (b) shall be deposited authorized under subsections (a) and (b) shall be deposited in the general fund of the Treasury.

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House Judiciary Committee Unable to Make a Distinction Between a Fiance(e) Petition and a Fiance(e) Visa

Posted: 4:15 am EDT

 

House Judiciary Committee Chairman Bob Goodlatte said in December that immigration officials did a poor job reviewing the financée visa application of Tashfeen Malik, one of the shooters in the San Bernardino, Calif., rampage that left 14 dead.  Goodlatte said he reviewed the application and found there was insufficient evidence to prove Malik and U.S. citizen Syed Rizwan Farook, had met in person — a requirement for a foreign national seeking a K-1 financée visa before being allowed entry into the U.S.

Let’s say that the couple did not meet, 8 U.S. Code § 1184 – admission of nonimmigrants provides for that exception. Below is the relevant section of the immigration law that our U.S. Congress passed:

(d) Issuance of visa to fiancée or fiancé of citizen

A visa shall not be issued under the provisions of section 1101(a)(15)(K)(i) of this title until the consular officer has received a petition filed in the United States by the fiancée and fiancé of the applying alien and approved by the Secretary of Homeland Security. The petition shall be in such form and contain such information as the Secretary of Homeland Security shall, by regulation, prescribe. Such information shall include information on any criminal convictions of the petitioner for any specified crime described in paragraph (3)(B) and information on any permanent protection or restraining order issued against the petitioner related to any specified crime described in paragraph (3)(B)(i). It shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within 2 years before the date of filing the petition, have a bona fide intention to marry, and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien’s arrival, except that the Secretary of Homeland Security in his discretion may waive the requirement that the parties have previously met in person. In the event the marriage with the petitioner does not occur within three months after the admission of the said alien and minor children, they shall be required to depart from the United States and upon failure to do so shall be removed in accordance with sections 1229a and 1231 of this title.

 

The American citizen petitioner is asked to submit evidence that he/she or his/her fiancé(e) have met in person during the 2 years preceding the filing of the I-129F petition. Such evidence may include a written statement from the petitioner and/or the beneficiary stating the exact date(s) on which the parties have met in person, copy of airline tickets, passport pages, or other evidence showing the U.S. citizen petitioner and the beneficiary have met in person during the requisite time period.

There are two exceptions to the “meet in person within 2 years before filing a fiance(e) petition” that DHS allows. The applicants must establish (PDF) that:

(1) The requirement to meet the fiancé(e) in person would violate strict and long-established customs of the the petitioner or fiancé(e)’s foreign culture or social practice; or

(2) The requirement to meet the fiancé(e) in person would result in extreme hardship to the American citizen petitioner.

In any case, it doesn’t look like the petitioner requested an exemption to the personal meeting requirement.  On December 19, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) released a copy of of what he says is “Malik’s K-1 Visa application” (see pdf).  What Mr. Goodlatte actually released is not/not a copy of  Malik’s K-1 visa application but U.S. citizen Farook’s Fiancee Visa Petition (I-129F) on behalf of Pakistani national, Tashfeen Malik.

It looks from the petition that Farook made an Intention to Marry Statement indicating that they were both in Saudi Arabia in October 2013.  If there is a question here, it might possibly be that the Farook submitted copies of passport pages that show the ID pages and admission stamps without the English translation. The I-129F notes that “The petitioner must submit the English translation of the admission/exit stamps.” We don’t know if he ever did, but the petition was presumably approved, or she would not have been issued a visa.

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But man, oh, man, the congressional folks looking into this could not even make the distinction between a petition and a visa?

The U.S. citizen petitioner, in this case, Syed Farook submitted the I-129F Fiance(e) Visa petition to DHS. That’s the document that Mr. Goodlatte released online. The alien beneficiary of the petition, in this case, Tashfeen Malik, then applied for a fiancee visa at a consular post overseas. According to the State Department’s deputy spox, she did that at the U.S. Embassy in Islamabad. She would have been required, among other things, to fill out a DS-160 form, an Online Nonimmigrant Visa Application form,  for temporary travel to the United States, and for K (fiancé(e)) visas. Form DS-160 is submitted electronically to the Department of State website via the Internet. Consular Officers use the information entered on the DS-160 to process the visa application and, combined with a personal interview, determine an applicant’s eligibility for a nonimmigrant visa.

The DS-160 form is not available to fill out as a PDF but information asked in that form is available in an unofficial sample form here (PDF).

There’s a notion that if only the K visa was not issued to Malik or if only she were “fully” vetted, perhaps San Bernardino would not have happened. But the other half of the shooters was one of our fellow citizens! Yes, maybe Farook wouldn’t have done it without her. Or maybe Farook would have found someone else and still kill all those people.  We don’t effing know. All we know right now is it happened.  Sure, we can focus on whether there was enough evidence of a personal meeting or not, but is that going to help us understand the whys and hows behind this attack.

Beyond the question of whether these two have personally meet or not prior to coming to the United States, the larger issue seems to be: how do you determine the intent of a person coming to the United States if he/she has a clean record? The fact is anyone can change one’s intent between the time a visa is issued/entry is allowed into our borders and when action occurs at some later date. It need not have to be a K-1 visa; it can be any kind of visa. It need not have to be a one entry, 90-day visa, it can be a multiple entry, 60 months visa. And it can be a U.S.  citizen born, raised, radicalized within our borders, coming back to this country, or already living here.  Absent a glass ball, or a pre-cognition system, there is no “full vetting” able to predict a hundred percent an individual’s intent or behavior into future.

And then there’s this: researchers at the Center on National Security at Fordham Law (CNS) analyzed 59 individuals in their ISIS Cases in the United States study (PDF) in 2015.  Of the 59 individuals, 17 are domestic plotters, and 100% U.S. citizens. The study notes that “overall, the accused are diverse and difficult to profile, racially or ethnically. They belong to a wide swath of ethnic backgrounds including African, African American, Caucasian, Asian, Eastern European, and South Asian.  Few are of Middle Eastern Arab descent.” 

Among the characteristics of the foreign fighter and domestic plotter groups in that study?  The vast majority, 81% are U.S. citizens, their median age is 24 years.  At least one third are converts to Islam and 14% have previous felony convictions. Some food for thought for folks who bother to think this through.

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Snapshot: Classes of Nonimmigrants Issued Visas, FY2010-2014

Posted: 1:53 am EDT

 

via travel.state.gov

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Nonimmigrant visa application processing fees are tiered based on the visa category and are non-refundable whether the application is approved or refused. Note that the fee is for a “processing fee” and not an issuance fee (subject to reciprocity). Nonimmigrant visa applicants from certain countries/areas of authority may be required to pay a visa issuance fee after their application is approved. These fees are based on the principle of  reciprocity:  when a foreign government imposes fees on U.S. citizens for certain types of visas, the United States will impose a reciprocal fee on citizens of that country/area of authority for similar types of visas.

The visa processing fees range from “No Fee” for applicants for A, G, C-2, C-3, NATO, and diplomatic visas, to non-petition-based nonimmigrant visa (except E) at $160.00 and petition based visa categories at $190.00.

E  visas or Treaty Trader/Investor, Australian Professional Specialty category visa is currently $205.00

K visas for Fiancé(e) or Spouse of U.S. citizen category visa is $265.00

It looks like the most expensive is the L visa fraud prevention and detection fee – for visa applicant included in L blanket petition   where the principal applicant is charged $500.00.

In any case, if we just calculate the consular revenue from 6,276,997 visitor visa applicants in FY2014 at $160 per applicant, that’s $1,004,319,520 or real serious money.

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Snapshot: Top Fiancé(e) Visa Issuance Posts (By Country) — FY2014

Posted: 2:01 am EDT

 

We put together a list of top K visa issuance posts by country, and region extracted from the travel.state.gov data page.  Applicants in Asia includes visa applicants from Oceania and what would typically be Near East Asia, East Asia Pacific and South Central Asia.  Applicants that we would typically put under WHA are broken down into North and South America. It would be an improvement to Consular Affair’s annual statistics if they can break down issuances/refusals based on the State Department’s geographic bureaus. Right now, the visa numbers are broken down by region that do not remotely correspond to any of the department’s geographic division.

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Notes:  K-1, K-2: Immigration laws passed by Congress allow an alien fiance(e) of a U.S. citizen and his/her minor child under 21 years old (and unmarried) to be admitted to the United States for 90 days so that a marriage ceremony can take place in the United States. More here.

K-3, K-4: Immigration laws passed by Congress allow the alien spouse of a U.S. citizen and his or her minor children to be admitted to the United States as nonimmigrants while they are awaiting the adjudication of a Form I-130 Petition for Alien Relative. More here.

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Three Senior Administration Officials Conduct Briefing on K-1 Visa Screening Process

Posted: 4:27 am EDT

 

We previously blogged about the State Department’s inadequate public response to inquiries about the K-1 visa process (see @StateDept Spox Talks About K-Visas Again … C’mon Folks, This Is Not Fun to WatchDear @StateDept, You Need Bond. Michele Bond at the Daily Press Briefing). On December 17, the State Department conducted an on-background overview of the current K-1 visa screening process and security screening process for U.S. visas. The special briefing via teleconference preceded President Obama’s remarks at the National Counterterrorism Center today. The briefing did not get into the specifics of the San Bernardino attackers and the senior officials only answered four questions from three reporters from the AP, CBS News and the Christian Science Monitor.

So here’s the K-1 process and vetting described by the senior administration officials:

US Citizen file the K1 petition (DHS/USCIS) – SAO #1

I thought it would be helpful to sort of tee off this call by sort of giving the – sort of the overarching view of how a K-1 visa application sort of moves through the process. And the first step is with U.S. Citizenship and Immigration Services, where a U.S. citizen spouse will petition USCIS – it’s a I-129F petition, which is a petition to permit a foreign national fiance(e) who is living overseas to potentially come to the United States and get married to a U.S. citizen here.

So the process is that the U.S. citizen spouse files a petition with USCIS, and USCIS does some background checks with systems within the Department of Homeland Security, as well as some interagency systems, and then evaluates whether or not a – this petition should be granted. And when the petition is granted, then the next step in the process – so there’s one sort of initial set of background checks, at least the watch list checks, et cetera.

Foreign fiance(e) apply for a visa (State/NVC/Embassy) – SAO #2

Once the I-129F petition is approved by the Department of Homeland Security, the package of the appropriate information is forwarded to our National Visa Center in Portsmouth, New Hampshire and sent out to the post at which the fiance(e)s have determined that they would like to have their visa interviews and clearance conducted. And so once the scheduling is done and the interview date is decided, at that time we conduct our first – our interview with the visa applicants as well as our suite of clearance procedures that we follow.

And the first point I want to make about this – these clearances and security clearances that we do is that they apply, obviously, to the K-1 visa application category, but they apply as well across the board to all immigrant and non-immigrant visa categories. We strive to have the most rigorous security and background vetting for all people who apply for visas to enter the United States.

And so as stated a second ago, the first thing that we do is a interview. Nearly all visa applicants, non-immigrant and immigrant visa applicants, are interviewed by a consular officer. And all immigrants and fiance(e) visa petitioners are interviewed by a consular officer. We also conduct a series of background checks. As a matter of standard procedure, all visa applicants’ data are reviewed through our online database, which contains nearly 36 million records of persons found ineligible for visas in the past or against whom potentially derogatory information exists. And these records in our database are drawn from sources and records throughout the U.S. Government.

We also run all visa applicants’ information against our online visa record system called the Consular Consolidated Database to detect and to respond to any derogatory information regarding visa applicants as well as current visa holders. And this database contains more than 181 million immigrant and non-immigrant visa records. We collect 10 fingerprints from nearly all visa applicants – and again, including all immigrant and fiance(e) visa applicants. And these fingerprints are screened against two key databases. The first of those is the Department of Homeland Security’s IDENT database, which contains a watch list of available fingerprints of known or suspected terrorists, wanted persons, and immigration law violators. We also run these 10 prints against the FBI’s Next Generation Identification System, which contains, among other records, more than 75.5 million criminal history records.

All visa applicants are screened against a watch list of photos of known or suspected terrorists, which we have obtained the FBI’s Terrorist Screening Center, as well as the entire gallery of visa applicant photos that are contained in our database systems.

In 2013, the State Department, in coordination with multiple interagency partners, launched the Kingfisher Expansion counterterrorism visa vetting system, which supports a complicated – I’m sorry, a sophisticated comparison of multiple fields of information drawn from applicants’ visa applications. And we run them against information in U.S. Government terrorist identity holdings. I will let the third Administration official describe that system in more detail.

And finally, we also coordinate with the Department of Homeland Security’s PATRIOT and Visa Security Program. This program is active currently at more than 20 of the identified high-threat posts around the world. The PATRIOT is a pre-adjudication screening system and vetting initiative that employs resources from both DHS/ICE, as well as Customs and Border Protection. It was established to identify national security, public safety, and other eligibility concerns relating to visa applicants prior to visa issuances. And finally, PATRIOT works in concert with the Visa Security Program – again, located at over 20 high-threat posts. ICE special agents assigned to these Visa Security Program posts provide on-site vetting of visa applications as well as other law enforcement support to our consular officers abroad.

And finally, I’ll just close by letting everybody know that our security vetting of visa applicants is not a one-time look at these people. Once we have these records and other information available from other databases, we constantly review and look at the records of these individuals as new information is made aware of us. And if information becomes available, that would perhaps support the revocation of that visa, the appropriate messages are sent to the State Department, and we will consider visas for revocation due to derogatory information. Since 9/11 we have revoked over 122,000 visas, including 9,500 visas for potential ties for terrorist activity.

Foreign fiance(e) with a visa apply to enter the United States (DHS/CBP) – SAO #1

Because CBP has independent authority whether or not to allow somebody to come into the United States and determine whether somebody is admissible or inadmissible, and those checks include interagency watch list checks. But also the National Targeting Center that’s run by U.S. Customs and Border Protection also does screening of individuals and runs not only against watch lists, but also data analytics on, say, airline data that – data that we get from the airlines: advanced passenger information as well as passenger name record information to determine and to guide the decision making by U.S. CBP officers at ports of entry as well as some overseas, depending on when they – where they’re coming in through, determine whether or not this person could present a threat to the United States or is inadmissible for any other reason.

After marriage, foreign fiance(e) now spouse adjust status in the United States to become a Permanent Resident (DHS/CIS) – SAO #1

Then – so once the person then comes into the United States, then within 90 days, under the K-1 visa or under the I-129 petition – the I-129F petition, they have 90 days to get married. And then the next step would be an adjustment of status for the fiance(e), or now the married partner, to get LPR status, so a green card status. And at that point, USCIS – there’s another round of checks to determine whether or not somebody should be adjusted of status and become a green card holder, and at that point there are background checks. There are interagency watch list checks. And then also importantly, there is an interview at that point of both the fiance(e) – or both partners, both the husband and wife or the married partners – to determine whether or not LPR status should also be granted. And that’s obviously looking at not only for national security reasons, but also for fraud reasons, to make sure that this is not a sham marriage and – or any of – other circumstances where LPR status would not be granted.

Note: Foreign spouse actually gets a Conditional Permanent Status issued by DHS/CIS valid for two years. In order to remain a permanent resident, a conditional permanent resident must then file a petition to remove the condition during the 90 days before the card expires if he/she is still married to the same U.S. citizen after two years. Spouses of U.S. citizens may apply for naturalization if a permanent resident for at least 3 years and meet all other eligibility requirements.

Vetting Process via Kingfisher Expansion – SAO #3

I will describe the visa vetting process that takes place through the Kingfisher Expansion tool. The Kingfisher Expansion is a system for conducting interagency counterterrorism screening for all visa applicants, which includes the K-1 visa applicants. As previously stated, the Department of State launched the KFE system in 2013 in partnership with the National Counterterrorism Center, and DHS, FBI, and the Terrorist Screening Center.

KFE checks are initiated when a U.S. embassy or consulate submits a vetting package, which consists of all visa applicant information as well as any additional information from post. And that is submitted to NCTC. In an automated process, NCTC compares the applicant data against its holdings. The automated review process takes place in a highly classified environment and responds to post within minutes with a red light or green light response. Any KFE red light response triggers a Washington-based interagency review of the case in which NCTC analysts along with FBI, DHS/ICE, and the Terrorist Screening Center review the application. All visa cases are continuously screened at NCTC during the validity period of the visa to identify any new derogatory CT information that arises on an applicant post issuance. NCTC alerts State, DHS, FBI, and TSC of any applicants who match the new terrorism information.  And with that, that is our NCTC screening process.

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Nonimmigrant Visas: 2014 Data Kills 2020 NIV Application Projections Made in 2005

Posted: 3:05 am EDT

 

Via GAO:

According to State’s projections, NIV [nonimmigrant visa] applications from the East Asia and Pacific region and the South and Central Asia region, will increase by about 98 and 91 percent, respectively, from fiscal year 2014 to fiscal year 2019. The Western Hemisphere region is expected to receive approximately 6.9 million applicants by fiscal year 2019, an increase of approximately 30 percent from fiscal year 2014.

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State has underestimated growth in NIV demand in past projections. In 2005, State contracted with an independent consulting firm to project growth in NIV applicant volume through 2020. As of 2014, 13 of the 18 countries included in this study had exceeded their 2014 NIV demand projections. The study also underestimated the sharp escalation of NIV demand in Brazil and China. By 2014, Brazil’s demand had already exceeded the study’s projection for NIV applicants in 2020 by over 104 percent, and in the same year, China’s demand was over 57 percent higher than the study’s 2020 projection for it. These increases in demand resulted in longer NIV interview wait times between 2006 and 2011 in Brazil and China. As we have previously reported, increases in NIV demand have historically impacted State’s ability to efficiently process visas.

Expected increases in NIV demand are further complicated by State’s current NIV process, including proposed staffing levels that are not anticipated to rise significantly through fiscal year 2016. Consular officers in 8 of the 11 focus groups and consular management officials at posts in Beijing, Mexico City, and New Delhi told us that current efforts to reduce NIV interview wait times are not sustainable if demand for NIVs continues to increase at expected rates. A consular management official at one post noted that efforts such as staff increases have been a “temporary fix” but are not a long-term solution to their high volume of NIV applicants. Staffing levels cannot be increased indefinitely due to factors such as hiring restrictions, staffing limitations established by host governments, and physical workspace constraints. For example, according to State officials, State is currently hiring to meet vacancies caused by attrition and is expected to increase the number of consular officers by only 57 in fiscal year 2015, a 3 percent increase, and not increase consular officers in fiscal year 2016. State officials told us that they do not expect significant increases in staffing levels beyond 2016. According to State officials, staffing limitations established by host governments are also a barrier to State’s Bureau of Consular Affairs’ staffing efforts. For example, the Indian government has currently restricted the number of staff the United States can employ at consulates and embassies. Physical capacity limitations, such as insufficient interview windows for visa adjudication, are also a concern for efforts to increase staffing.