NAFSA Practice Advisory 2004-c

Visa delays due to Security Advisory Opinion requests

The cause of these delays and what you can do

May 21, 2004

Summary

Since 2001, more and more students and scholars have been experiencing lengthy visa delays. In that time, there has been a dramatic increase in the number of name checks and Security Advisory Opinion requests - without a corresponding increase in resources to process those requests in a timely manner. Delays have become even more pronounced now that consular officers are required to wait for a response from Washington before concluding the procedure and issuing or denying a visa. This advisory outlines what advisors can do to facilitate the process and report delays, briefly discusses the Washington Agency name check and Security Advisory Opinion processes, and highlights the points in the process where delays commonly occur.

What can advisers do to facilitate the process when students or scholars are subject to security checks?

Some students or scholars may ask you what they should do or say when they apply for a visa. Explain the security clearance processes to them, and encourage them to be honest and forthright when answering questions posed by consular officers or immigration inspectors at the port of entry. Make sure they understand that visa processing may take longer now, especially if they are subject to a security clearance that requires a response from Washington, DC before the visa is issued.

Visa applicants who believe they might be delayed by the security clearance process should be advised to factor additional time into their entry or travel/reentry plans, and educational institutions should factor that period into their business practices (e.g., how late they can mail an I-20 or DS-2019 to a prospective student or exchange visitor, how soon they can expect a researcher to enter, whether a faculty member who plans to attend a conference abroad can be back in time for the start of the semester, etc.).

The consular officer needs sufficiently detailed information about a visa applicant's field and plan of activities to make a decision on whether a Security Advisory Opinion must be requested. Providing the applicant with this kind of information up front may facilitate the inquiry. Even if a Security Advisory Opinion is necessary, if the consular officer can forward very detailed information to Washington, a decision might be possible on the written record alone, and not require further inquiry, if sufficient detail is provided from the beginning.

What causes delays? Background Information

Inadmissibility or Ineligibility Determinations

Before a U.S. consular officer can issue a visa, he or she is required to determine whether the visa applicant is subject to any of the grounds of inadmissibility or visa ineligibility listed in Section 212 of the Immigration and Nationality Act (I.N.A.). One ground of inadmissibility under I.N.A. § 212 is § 212(a)(3), relating to "Security and Related Grounds." These grounds include activities such as espionage, terrorism, overthrow of the U.S. government and other activities that Congress has determined affect the security of the United States. If a consular officer knows, or has reasonable ground to believe, that an alien seeks to enter the United States to engage "solely, principally, or incidentally," in activities listed in I.N.A. § 212(a)(3), a visa will not be issued.

DOS Security Clearance Procedures

To effectively manage consular inquiries into admissibility under I.N.A. § 212, including I.N.A. § 212(a)(3)(A)(i)(II), D.O.S. has developed standardized "clearance procedures" for consular officers to follow. One of these procedures is a Security Advisory Opinion (SAO) from the Visa Office. Another is a name check, performed by the FBI and other interested agencies at the behest of the consular officer.

Clearance procedures are described in detail in the Foreign Affairs Manual at 9 FAM Part IV Appendix G, 400 and 500.

Washington Agency Name Checks

Washington agency name checks are required for certain visa applicants designated in the "special Clearance and Issuance Procedures" pertaining to the applicant's country of nationality. A country-by-country listing of these special clearance and issuance procedures is also available in the DOS online Reciprocity Tables.

Visas Condor

Certain nonimmigrant visa applicants are also subject to a special name check clearance procedure called Visas Condor. International students and scholars may be subject to a Visas Condor review, particularly if the student or scholar is male, between the ages of 16 and 45, and of a certain national group. This name check clearance involves DOS sending the visa applicant's name to be checked against information in various security, law enforcement, and intelligence databases. DOS must receive a response to their inquiry from these agencies before a visa can be issued.

Instituted in January 2002, Visas Condor checks must be completed before visas for the applicants in question may be issued. Much of the guidance provided to consular officers on Visas Condor remains classified. However, sources indicate that individuals from the following countries may be subject to this additional name check: Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen.

Security Advisory Opinions

In certain cases, a consular officer must (or has the discretion to) request a "security advisory opinion" (SAO) from DOS. SAOs are more substantial than Washington agency name checks; in fact, Washington agency name checks are conducted as part of every case submitted for an SAO.

SAOs are mandatory for the following categories of visa applicants who are 16 years of age or older:

  • Applicants listed in CLASS with a "DPT-00" (Department Opinion Required) entry.
  • Applicants on whom an unfavorable security advisory opinion was previously rendered by DOS which has not been reversed.
  • Applicants who are the subject of a general or specific instruction from the Department requiring a security advisory opinion.
  • Applicants who are nationals, or within specified categories of national, of designated countries which are not recognized by the U.S., with which the U.S. has no diplomatic relations, or on which DOS has imposed an SAO requirement for political, security, or foreign policy reasons. Cases are subject to this requirement only when indicated in the "special clearance and issuance procedures" for the applicant's country of nationality.
  • Applicants who the consular officer knows, or has reason to believe, would be ineligible for a visa under INA § 212(a)(3)(A), for activities related to espionage, sabotage, the prohibited export of sensitive technology, other illegal activities, or efforts to overthrow the U.S. Government.
  • Applicants who the consular office knows, or has reason to believe, may be subject to INA § 212(a)(3)(B) for engaging, or planning to engage, in terrorist activities.
  • Applicants who may be ineligible under INA § 212(a)(3)(C) for foreign policy reasons.
  • Applicants who are possibly inadmissible under INA §212(a)(3)(#) for having engaged in Nazi persecution or genocide.
  • Applicants who the consular officer knows or has reason to believe are on the Economic Defense List (EDL), or who is an owner or responsible executive of a company which is on the EDL. The EDL is an annual Department of Commerce compilation of individuals and firms against whom may exist sanctions denying those U.S. export privileges.
  • There are other categories but the above are the most likely to be encountered in the education context.

Security advisory opinions must be requested in the above cases. Consular officers can also submit security advisory opinion requests at their discretion "whenever the circumstances of an individual case raise concerns about the applicant's possible ineligibility under a security ground, even thought the concerns do not meet the "reason to believe" standard for which an SAO is mandatory."

Visas Mantis

Inquiry and clearance procedures relating to the 212(a)(3)(A)(i)(II) ground of inadmissibility (concerning prohibited export from the United States of goods, technology, or sensitive information) are guided by a DOS policy called Mantis. According to the Department of State,

"The Mantis program was developed due to law enforcement/intelligence community concern that US produced goods and information are vulnerable to theft…The primary program security objectives are:

  • To stem the proliferation of weapons of mass destruction and missile delivery systems;
  • Restrain the development of destabilizing conventional military capabilities in certain regions of the world;
  • Prevent the transfer of arms and sensitive dual-use items to terrorist states; And maintain U.S. advantages in certain militarily critical technologies."

Mantis can trigger either a Washington Agency name Check or a Security Advisory Opinion. In either case, the consular post that requests a Mantis name check or SAO must wait until Washington responds before granting a visa.

Washington Agency Name checks and Security Advisory Opinions are requested by consulates using special cables sent to the Department of State in Washington, D.C. Currently, the consular officer must wait for a response from Washington before concluding the procedure and issuing or denying a visa.

The Department of State has developed policies that guide consular officers in deciding whether to request a name check or Security Advisory Opinion. The following factors are influential:

  • Country of nationality of the visa applicant
  • Field and level of activity
  • Whether the field of activity is on the Technology Alert List (TAL)
  • Whether the applicant bears a passport of or is employed by a state designated as a state sponsor of terrorism
  • Whether the applicant will be participating in a U.S. Government-sponsored program
  • Visa type being requested
  • Age of the visa applicant
  • Place of visa application

A Mantis cable might be requested for a national of any country who may come within the purview of I.N.A. §212(a)(3)(A)(i)(II), and the decision to request a Mantis Washington Name check or SAO is often in the discretion of the consular officer. Certain countries, however, have been tagged by DOS with standing rules regarding when name checks and SAOs must be requested.

Clearance procedures are described in detail in the Foreign Affairs Manual at 9 FAM Part IV Appendix G, 400 and 500.

The clearance procedures for each country vary greatly, and can change. Consult the DOS Reciprocity Tables for country-specific information.

Contributors:
Courtney Klein-Faust
David Fosnocht
Larry Bell