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

Posted: 6:09 pm EDT
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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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Foreign Affairs Security Training Center (FASTC) Gets Some Love From Congress

Posted: 12:53 am EDT
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A section of the ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes an item on funds available for the contentious Foreign Affairs Security Training Center (FASTC) project.

(E) Funds appropriated under this heading in this Act that are designated for Worldwide Security Protection shall continue to be made available for support of security-related training at sites in existence prior to the enactment of this Act: Provided, That in addition to such funds, up to $99,113,000 of the funds made available under this heading in this Act may be obligated for a Foreign Affairs Security Training Center (FASTC) only after the Secretary of State—

(i) submits to the appropriate congressional committees a comprehensive analysis of a minimum of three different locations for FASTC assessing the feasibility and comparing the costs and benefits of delivering training at each such location; and

(ii) notifies the appropriate congressional committees at least 15 days in advance of such obligation: Provided, That such notification shall also include a justification for any decision made by the Department of State to obligate funds for FASTC.

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

Posted: 3:05 am EDT
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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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Congress Mandates Limits on @StateDept’s Records Management After Hillary Clinton’s Email Flap

Posted: 12:44 am EDT
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In 1976, Henry Kissinger apparently left the State Department with records of his telcons, along with his memcons and office files, at the conclusion of his tenure as the 56th Secretary of State.  The National Security Archive in 2001 filed a legal complaint directed at the State Department and the National Archives “for abdicating their duty under the Federal Records Act to recover the Kissinger documents, which were produced on government time with government resources.” In March 2015, the National Security Archive again filed suit against the State Department under the Freedom of Information Act to force the release of the last 700 transcripts of Kissinger’s telephone calls (telcons). The Archive’s appeal of State’s withholding dates back to 2007. State has apparently claimed they were “pre-decisional” or covered by executive privilege — claims that the Archive says “should long since have expired in the case of 40-year-old records.”

In 2013, 67th did not have to removed her record emails since they were not even in the State Department systems. Meanwhile, the State Department will be tied up in multiple civil litigations related to these damn emails until 2055.

In any case, Congress is on it! No one will be able to do this ever again. No one, that is, until the next secretary of state maybe in 2028 … and it’ll be for something similar to the telephones, or emails, but different; perhaps out of a new technology that is yet to be invented… records retention for lifelogging or mindprinting, anyone?

Well, here is what Congress did for now.  A section of the ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes the following item on Records Management with funding restrictions on the use of email accounts and email servers created outside the .gov domain, a requirement for records management reports from both the State Department and USAID within 30 days, and a provision for  withholding $10,000,000 from the “Capital Investment Fund” until the reports required are submitted to Congress.

(1) LIMITATION AND DIRECTIVES.—

(A) None of the funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II that are made available to the Department of State and USAID may be made available to support the use or establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program in contravention of the Presidential and Federal Records Act Amendments of 2014 (Public Law 113–187).

(B) The Secretary of State and USAID Administrator shall—

(i) update the policies, directives, and oversight necessary to comply with Federal statutes, regulations, and presidential executive orders and memoranda concerning the preservation of all records made or received in the conduct of official business, including record emails, instant messaging, and other online tools;
(ii) use funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II, as appropriate, to improve Federal records management pursuant to the Federal Records Act (44 U.S.C. Chapters 21, 29, 31, and 33) and other applicable Federal records management statutes, regulations, or policies for the Department of State and USAID;
(iii) direct departing employees that all Federal records generated by such employees, including senior officials, belong to the Federal Government; and
(iv) measurably improve the response time for identifying and retrieving Federal records.

(2) REPORT.—Not later than 30 days after enactment of this Act, the Secretary of State and USAID Administrator shall each submit a report to the Committees on Appropriations and to the National Archives and Records Administration detailing, as appropriate and where applicable—
(A) the policy of each agency regarding the use or the establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program;
(B) the extent to which each agency is in compliance with applicable Federal records management statutes, regulations, and policies; and
(C) the steps required, including steps already taken, and the associated costs, to—

(i) comply with paragraph (1)(B) of this subsection;
(ii) ensure that all employees at every level have been instructed in procedures and processes to ensure that the documentation of their official duties is captured, preserved, managed, protected, and accessible in official Government systems of the Department of State and USAID;
(iii) implement the recommendations of the Office of Inspector General, United States Department of State (OIG), in the March 2015 Review of State Messaging and Archive Retrieval Toolset and Record Email (ISP–1–15–15) and any recommendations from the OIG review of the records management practices of the Department of State requested by the Secretary on March 25, 2015, if completed;
(iv) reduce the backlog of Freedom of Information Act and Congressional oversight requests, and measurably improve the response time for answering such requests;
(v) strengthen cyber security measures to mitigate vulnerabilities, including those resulting from the use of personal email accounts or servers outside the .gov domain; and
(vi) codify in the Foreign Affairs Manual and Automated Directives System the updates referenced in paragraph (1)(B) of this subsection, where appropriate.

(3) REPORT ASSESSMENT.—Not later than 180 days after the submission of the reports required by paragraph (2), the Comptroller General of the United States, in consultation with National Archives and Records Administration, as appropriate, shall conduct an assessment of such reports, and shall consult with the Committees on Appropriations on the scope and requirements of such assessment.
(4) FUNDING.—Of funds appropriated by this Act under the heading “Capital Investment Fund” in title I, $10,000,000 shall be withheld from obligation until the Secretary submits the report required by paragraph (2).

You gotta do what you gotta do, now for some laughs via SNL:

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