@StateDept Notifies Foreign Countries of New Information Sharing Standards Required For U.S. Travel

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Posted: 12:12 pm PT
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President Trump issued E.O. 13780 on March 6 (Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States). It revoked the January 27 order, and reissued the ban for the same six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen, with Iraq excepted (see Trump Revokes Travel Ban EO, Reissues New Executive Order For Six Muslim Countries Minus Iraq).

There’s something else in EO 13780 that did not get as much attention as the travel ban.  Section 2 (a) and (b) of the E.O. requires the review of immigration-related information sharing by foreign governments.

Sec. 2.  Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period.  (a)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.  The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.

(b)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order.  The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.

(d)  Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.

The report required under Section 2(b) has apparently been submitted recently to the President. The report reportedly includes standards that foreign governments are required to meet for sharing information with the United States. We understand that the State Department has now sent a guidance cable to all posts worldwide to help foreign governments understand the requirements and how they can start meeting them. Posts have been told to request a response from their host government counterparts to enable them to respond to the State Department by July 21.

Below is the unclassified “talking points” that posts are asked to deliver to all countries:

  • In accordance with Executive Order 13780, the Department of Homeland Security, in consultation with the Department of State and the Director of National Intelligence, has established a new set of standards regarding the information all foreign governments should share with the U.S. Government in order to allow the U.S. Government to verify the identity of all foreign travelers and immigration applicants and ascertain that they do not pose a threat to U.S. security or public safety. This is the first time that the U.S. Government is setting standards for the information that is required from all countries specifically in support of immigration and traveler vetting. We are asking all countries to look at areas to better enhance our collective security.
  • The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, has established the following standards for identity- related information-sharing by foreign governments whose nationals seek to travel to the United States:

— Countries should issue, or have active plans to issue, electronic passports that conform to ICAO specifications and include a facial biometric image to enable verification of travel documents;

— Countries should regularly report lost and stolen passports, whether issued or blank, to the INTERPOL Stolen and Lost Travel Document Database to maintain the integrity of travel documents; and

— Countries should make available any other identity information at the request of the U.S. including, as appropriate, additional biographic and biometric data and relevant immigration status.

  • The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, has also established the following standards for measuring information-sharing related to terrorism or public safety threats by foreign governments whose nationals seek to travel to the United States:

–Countries should make available information, including biographic and biometric data, on individuals it knows or has reasonable grounds to believe are terrorists, including foreign terrorist fighters, through appropriate bilateral or multilateral channels;

–Countries should make available through appropriate bilateral or multilateral channels criminal history record information, including biographic and biometric data, on its nationals, as well as permanent and temporary residents, who are seeking U.S. visas or border or immigration benefits;

–Countries should provide exemplars of all passports and national identity documents they issue to the U.S. Department of Homeland Security’s Immigration and Customs Enforcement Forensic Laboratory, including applicable date ranges and numbering sequences, as required, in order to improve U.S. Government fraud detection capabilities;

–Countries should not impede the transfer to the U.S. Government of information about passengers and crew traveling to the United States, such as Advance Passenger Information and Passenger Name Records; and

–Countries should not designate individuals for international watchlisting as national security threats or criminals solely based on their political or religious beliefs.

  • The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, also identified three security risk indicators relevant to the USG’s ability to vet a country’s nationals for admissibility to the United States:

–Countries should take measures to ensure that they are not and do not have the potential to become a terrorist safe haven;

–Countries should accept the repatriation of their nationals who are subject to a final order of removal in the United States and provide travel documents to facilitate their removal;

–Visa Waiver Program countries should meet the statutory and policy requirements of the Visa Waiver Program.

  • After 50 days, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, must submit to the President a list of countries recommended for inclusion on a presidential proclamation prohibiting the entry of designated categories of their nationals because those countries do not meet the new standards or have an inadequate plans to do so.
  • These standards build upon our existing partnerships with other countries and multilateral organizations such as ICAO and INTERPOL to increase the reliability of travel documents and the sharing of information about known or suspected terrorists and known criminals. They also reinforce UN Security Council Resolutions 1373, 1624, 2178, and 2322, which call on all member states to cooperate in sharing information on the movements of terrorists and require all states to prevent the movement of terrorists or terrorists groups through effective border controls and controls on the issuance of identity papers and travel documents.

On repatriated nationals, we blogged about this earlier in 2017 (see On Invocation of Visa Sanctions For Countries Unwilling to Accept Their Deported Nationals. We should also note that the Trump Executive Order: Enhancing Public Safety in the Interior of the United States include section 12 on countries who refused to accepted their nationals who are subject to removal by the United States:

Sec. 12.  Recalcitrant Countries.  The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate.  The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.

The clear stick here is countries are formally notified that non-compliance with the new standards could lead to sanction such as “inclusion on a presidential proclamation prohibiting the entry of designated categories of their nationals because those countries do not meet the new standards or have an inadequate plans to do so.”

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