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

Posted: 4:15 am EDT
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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.

Screen Shot

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

Posted: 4:27 am EDT
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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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Dear @StateDept, You Need Bond. Michele Bond at the Daily Press Briefing

Posted: 4:08 am EDT
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In case you missed this:

 

We’ve just read the Daily Press Briefing from last week with the press corps asking questions about K-1 visas related to the San Bernardino attack.

Oh, holy mother of goat and her stupid nephews!

It should have been all hands on deck to know absolutely everything about this case.  Instead we have Mark Toner, the deputy spokesperson of the State Department on December 3, either asking to take the question, or guessing his response. “I don’t know “…. “I would presume …”

Then the next day, Elizabeth Trudeau, the Press Office director did the DPB and seriously underwhelmed our video player. She refused to confirm that the K-1 visa was issued in Islamabad, something that Mr. Toner already talked about just the day before. 

Folks, haven’t you learned anything at all?  Anything? It’s not like this case is locked in a file cabinet in the catacombs of Foggy Bottom..  That’s why you have your consular systems.

 

Her name is Bond, Michelle Bond.

The State Department need to put its Consular Affairs Assistant Secretary of State Michele Bond up there at the podium to answer these questions.  Help the journalists understand the K-1 process, and the roles State and DHS play in the systems currently in place.  PA officials who have not done visa work in 15-20 years should not be left on the podium guessing about the process and unable to answer questions about this case.

When the press asks, “Can Americans have confidence in this visa processing system?”, Ms. Bond should be able to say “Absolutely, and here’s why.”  And she should be able to explain clearly the whys.  Hopefully, she’s not going to say because “it’s an adaptable system” or  that “We continue to improve it.” Because people are not really interested whether it’s an adaptable system. They want an assurance that the systems in place work; and if it did not work in the visa issuance process for Tashfeen Malik, they want to know what had been done to update that process.

We were going to suggest that the State Department convene an Accountability Review Board per 12 FAM 030. The ARB Permanent Coordinating Committee, where the Deputy Assistant Secretary for Visa Services sits as one of its seven members, by the way, can make that recommendation to the Secretary:

“The ARB process is a mechanism to foster more effective security of U.S. missions and personnel abroad by ensuring a thorough and independent review of security- related incidents. Through its investigations and recommendations, the Board seeks to determine accountability and promote and encourage improved security programs and practices. In addition, the ARB mechanism enhances the integrity of the visa issuing process by determining accountability in certain instances in which terrorist acts in the United States are committed by aliens.”

Except that current regulations are quite clear that “a Board will be convened with respect to a visa incident only if the following three determinations are made:”

(1)  That the incident involved a terrorist act causing serious injury, loss of life, or significant destruction of property in the United States;

(2)  That there is probable cause to believe that a specifically identified alien was a participant in the terrorist act; and

(3)  That the alien was issued a visa on or after May 1, 1996; at the time of visa issuance, the alien’s name was included in the Department’s Consular Lookout and Support System (CLASS) and that the visa was issued as a result of a failure by the consular officer to adhere to the procedures required to be followed by the inclusion of the name in such visa lookout system.

Since State is confident of its vetting process, it appears right now that subject was not in the CLASS.  Which would make the ARB not a requirement under these regs.

Nonetheless, it would be helpful to know if the State Department has reviewed its internal processes or that it plans to do so. This individual got through  — despite the vetting, the interagency sharing of information, fingerprints, etc, and the face to face interview —  it is not unreasonable to ask how she got in. Maybe there are no cracks, but the public needs to understand the process, which will never with 100% fault-free.

As our consular blog pal told us, “It will never be fault-free because humans aren’t.” People can get away with lying, or can change their minds. Unless the USG has come up with a precognition system similar to Philip K. Dick’s in the Minority Report, there is no way to determine an individual’s action in the future. What do you do with a culprit that has not yet committed a crime? Do you arrest him or her before he/she commits a future crime thereby protecting the public from all prospective harm?  What regulations apply to that?


Daily Press Briefing excerpts:

On December 3, Mr. Toner, the State Department’s deputy spox took a stab at the K-1 questions.  If you want to beat your head against the wall, hard … well, we can understand the feeling, but wear your helmet first, okay?

QUESTION: — of the suspects in the San Bernardino mass shooting that happened yesterday? There are various statements and reports out there about Tashfeen Malik, the alleged female shooter suspect who was killed yesterday. Some are saying that she lived in Saudi Arabia before coming to the U.S. And what I wonder is the extent to which the State Department has been pulled into this investigation. Can you give us some kind of guidance on whether those reports are accurate? And if so, what type of visa was she in the United States on? Is there anything about the citizenship status of her that you can share with us?

MR TONER: Sure. Well, since it’s already been reported out in the press, I can confirm that she did receive or was issued a K-1 so-called fiancee visa, I believe in 2012. Is that correct? 2015 – 2000 – help me here. Okay, we’ll get that number for you. Unfortunately, it’s not in front of me here. But she did receive that from Pakistan. That allowed her to travel here to the United States.
[….]
QUESTION: Does that require an interview?

MR TONER: If that petition is approved, the case is forwarded to the U.S. consulate abroad in order to verify the qualifying relationship and vet the applicant for any derogatory information. I’m virtually sure that, as in any visa – as in any visa processing, that that involves an interview. I don’t know if —

QUESTION: But not a joint interview, right? They don’t have to appear together at the consular office, wherever that is?

MR TONER: Not – that I’ll have to – I’ll have to take that question. I’m not sure. I’m not sure.

[….]

QUESTION: And can you also check on the – that before getting that given visa, where did they meet? Because I’m not sure, but if I’m remembering correctly, there is a clause that they should have met or like – it’s not just on the —

MR TONER: Again, no, that wouldn’t – so that wouldn’t – again, I would refer those kinds of questions to the FBI who’s conducting the investigation into this.

QUESTION: Well, what happens if they don’t get married within 90 days?

MR TONER: I would presume that the – that would invalidate the visa.

QUESTION: And if – okay. And then if they do, does that mean that the visa is extended or they have to apply for something else?

MR TONER: Unclear to me whether that would be – that would be automatically extended. I would somewhat doubt that. There may be – again, I’m – I’d have to get you the full facts on it. I mean, if there’s extenuating circumstances, perhaps. I don’t know in this particular case and can’t really speak to it, but there’s a 90-day window because there’s a 90-day window. So, I mean —

QUESTION: Right. But one doesn’t automatically become a U.S. citizen —

MR TONER: No, not at all.

QUESTION: — simply because one married one. So clearly —

MR TONER: Not at all. So any individual would have to provide for legal residency or a green card after living here, I guess, in – it’s one year, I think.
[…]

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