In recent months, a Presidential Memorandum, leaked Department of State cables, and a Federal Register notice have detailed the Trump Administration’s plans to implement “Extreme Vetting” of individuals determined by consular officers to warrant additional scrutiny in connection with terrorism or other national security-related ineligibilities. Although it is impossible to know what the exact implementation mechanism and full impact of “Extreme Vetting” will be on individuals seeking U.S. visas at this early stage in the process, it may useful to apply the lessons of the VISAS MANTIS program, which was established in 1998 to apply increased scrutiny in connection with illicit technology transfer. The parallels between VISAS MANTIS and “Extreme Vetting” are striking in that they require of consular officers a similar type of factual analysis and data collection, as well as a lengthy interagency Security Advisory Opinion (“SAO”) clearance process.
VISAS MANTIS
VISAS MANTIS procedures are detailed in the nearly completely publicly unavailable 9 FAM 304.2-5. The only available reference is at 9 FAM 304.2-5(B)(1)(a) in relation to the publicly unavailable Technology Alert List (“TAL”), which is the primary document used by consular officers to determine whether an applicant will require a MANTIS SAO. See below:
9 FAM 304.2-5(B)(1) (U) The Technology Alert List
The revised Technology Alert List (TAL) consists of four parts: Tab A, “Critical Fields List” (CFL) of major fields of controlled goods and technologies of tech transfer concern, including those subject to export controls for nonproliferation reasons; Tab B, the Department’s list of designated state sponsors of terrorism, Tab C, “Other Countries of Proliferation Concern”, and Tab D, “FAQs and Guidance”. While restrictions on the export of goods and technologies apply to nationals of all countries, applicants from countries on the list of state sponsors of terrorism seeking to engage in a commercial exchange or academic pursuit involving one of the critical fields warrant special scrutiny. Officers are not expected to be versed in all the fields on the list. Rather, you should shoot for familiarization and listen for key words or phrases from the list in applicants’ answers to interview questions.
Additional guidance can be found in the Legacy 9 FAM 40.31 N5.1-4 (although it may be outdated), which states that when applying the TAL, a consular officer should:
(1) Determine whether the applicant proposes to engage in one of the scientific/technical fields listed in the Critical Fields List;
(2) If the applicant’s planned activities raise questions of possible inadmissibility under INA 212(a)(3)(A)(i)(II), submit an SAO in the form of VISAS MANTIS. An SAO is mandatory in all cases of applicants bearing passports of or employed by states designated as state sponsors of terrorism who seek to engage in a commercial exchange or academic pursuit involving one of the critical fields.
(3) When a VISAS MANTIS SAO is submitted in a TAL case, you should gather and report as much information as possible about the applicant’s background, proposed activities, and travel plans. The effectiveness of the name check (and the turnaround time) is directly related to the completeness of the information in the SAO. For example: what branch of physics does the applicant study, Quantum or Nuclear? What is his current position and where does he or she work? What is the address and phone number of the company(ies) he or she intends to visit? Who is the applicant point of contact? Who is funding the travel or education? Will he or she be returning to work in a country which sponsors terrorism or is under sanctions? How does the applicant plan to use the goods or knowledge acquired? Will he or she be “exporting” this new knowledge to a hostile nation?
Critically, 9 FAM 40.31 N5.1-5, also alludes to a very high legal threshold a consular officer must apply in deciding whether to forgo a MANTIS SAO based on the applicant seeking to engage in one of the critical TAL fields:
a. With the exception of applicants who are nationals or employees of states sponsoring terrorism, VISAS MANTIS SAOs are not mandatory for all scientific and technical visitors seeking to engage in one of the critical fields. However, you should use caution in adjudicating all such cases. Only when you believe INA 212(a)(3)(A) clearly does not apply should the case be processed to conclusion without seeking the Department’s opinion.
Trump’s “Extreme Vetting”
On March 6th, 2017, President Trump issued a memorandum directing the Secretary of State to implement additional protocols and procedures focused on “ensuring the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits.” In response, the DOS issued a series of cables between March 15th and March 17th, 2017 to overseas consular posts, providing guidance on the implementation of “Extreme Vetting” procedures. Those cables were subsequently leaked to the media. On May 4th, 2017, the DOS submitted a notice in the Federal Register seeking emergency approval for a set of proposed questions consular officers must ask visa applicants subject to “Extreme Vetting.”
“Extreme Vetting” Criteria
The full criteria for determining who is subject to “Extreme Vetting” will vary by consular post, and will be based on determinations reached by a working group led by the consular chief and comprised of law enforcement and intelligence community partners, as well as other relevant stakeholders. Additionally, any Iraqi national determined to have been present in a territory at the time it was controlled by ISIS will be subject to “Extreme Vetting,” with the exception of A/G/C-2/C-3/NATO applicants.
Initial DOS guidance also mandated “Extreme Vetting” for all visa applicants between 16 and 65 years old applying with passports from Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Although this guidance was subsequently withdrawn when the U.S. District Court in Hawaii enjoined the implementation of Executive Order 13780, it may be instructive in understanding the selection criteria decisions made by individual consular posts.
Finally, any applicant determined to have been present in a territory at the time it was controlled by ISIS is subject to a mandatory social media check conducted by the consular post’s Fraud Prevention Unit.
Information Collection and SAO process
Once a consular officer determines that an individual applicant is subject to “Extreme Vetting” based on the consular post’s established criteria, it appears that the following information will be collected from the applicant for inclusion in a new Form DS-5535:
• Travel history during the last fifteen years, including source of funding for travel;
• Address history during the last fifteen years;
• Employment history during the last fifteen years;
• All passport numbers and country of issuance held by the applicant;
• Names and dates of birth for all siblings;
• Name and dates of birth for all children;
• Names and dates of birth for all current and former spouses, or civil or domestic partners;
• Social media platforms and identifiers, also known as handles, used during the last five years; and
• Phone numbers and email addresses used during the last five years.
Once the information is compiled, the consular officer is instructed to send a SAO cable in accordance with guidance detailed in the publicly unavailable 9 FAM 304.2 and 304.5. Similar publicly available guidance can be found at Legacy 9 FAM 40.31 N5, although it may be outdated.
Analysis
The consular officer’s primary discretionary role in both the VISAS MANTIS and “Extreme Vetting” processes is determining whether an applicant fits within the established criteria requiring increased scrutiny. As we saw with MANTIS, that threshold is very high, allowing the consular officer to forgo an SAO only when the applicant’s activities are clearly not related to a relevant TAL critical field. Additionally, for a wide variety of other reasons consular officers tend to be risk averse, and will therefore opt for the SAO when faced with such a choice. This is why some applicants with software engineering backgrounds will unexpectedly be subject to a MANTIS SAO even if their work has nothing to do with sensitive technologies.
We expect consular officers to apply the same risk-averse approach to determining whether applicants fit the established criteria for “Extreme Vetting,” which will likely result in a high volume of additional SAOs on top of the current backlog, and increased wait times for all clearances. Unfortunately, such increased wait times for a potentially wide swath of a population could have the effect of deterring travel to the United States of otherwise eligible applicants.
For more information, or to speak to one of the u.s. immigration and nationality lawyers or attorneys at the Nachman, Phulwani Zimovcak (NPZ) Law Group, P.C., please feel free to e-mail us at info@visaserve.com or to call us at 201-670-0006 (x107).