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Updates on Consular Processing

blog10.jpgFollowing the announcement of President Trump's second travel ban, the Department of State under the direction of Secretary Rex Tillerson issued a memorandum to all consular posts around the world on March 15, 2017. The memorandum was modified two days later, and again after a federal court in Hawaii placed a nationwide stay on implementation of the travel ban. While provisions in the memorandum specifically related to applicants from the six majority-Muslim countries identified in the ban were removed, other "heightened scrutiny" directives regarding global applicants remain in effect.

For reference, the memorandum may be found here.

WHAT IT SAYS

The memorandum indicates that consular posts must focus on both preventing criminals and terrorists from entering the U.S., as well as collecting all information and carefully reviewing all applicants for non-immigrant (NIV) and immigrant visas (IV) for any indication of inadmissibility or denial. The memorandum specifically mentions that: "All visa decisions are national security decisions," and "Any nonimmigrant visa applicant whom the consular officer believes may fail to abide by the requirements of the visa category in question should be refused."

The memorandum then directs consular posts to work more closely with local law enforcement to identify potential issues for NIV/IV applicants, and to request advisory opinions from local law enforcement as necessary. In such cases where a consular officer believes an NIV/IV applicant may be inadmissible or will fail to abide by the visa requirements, they may ask for additional information as it pertains to the following:

  • Travel history for the last 15 years

  • Names of any family members not submitted in applications

  • Addresses from the last 15 years

  • Prior passport numbers

  • Occupations and Employers from the last 15 years

  • All phone numbers from the last 5 years, and

  • All email address and social media handles used in the last five years

Further, for any applicant who is suspected to have ties to ISIS or other terrorist organizations, or who has simply ever been present in an ISIS-controlled territory, their case will be automatically referred to the Fraud Prevention Unit for a mandatory social media review.

Finally, consular posts should not schedule more than 120 interviews per officer per day.

WHAT IT MEANS FOR APPLICANTS AND WHAT THEY SHOULD DO

The overall take-away from this memorandum is that NIV and IV applicants should anticipate much higher scrutiny, invasive questioning, and delayed reviews for their cases. The memorandum gives broad discretion to consular officers to evaluate whether increased questioning is necessary for applicants and directs officers to rely on local law enforcement for opinions on who may be inadmissible/denied.

It is likely that, in the next few months as this memorandum is implemented, there will be significant delays for applicants seeking consular interviews. Between additional questioning and waiting on reports/opinions from local law enforcement, the wait for interviews may increase to months as opposed to weeks or days. To alleviate some of the stress related to these delays, applicants should:

  • Request visas as early as possible, including filing with USCIS at the earliest possible date;

  • When booking travel, purchase travel insurance in case they need to change or cancel flights; and,

  • Make sure that employers and contracts reflect possible delays in obtaining visas and travel.

Additionally, NIV/IV applicants should expect more questioning at interviews including the information above. The consular posts have been directed to deny applications where an applicant may not meet visa requirements, which includes presenting fraudulent information or misrepresenting the intent behind travel to the U.S. Applicants should:

  • If the applicant has ever applied for a visa before, do their best to recall which employer, address, phone number, and email address they listed on previous applications. Inconsistencies with previously submitted documents may be considered fraud and a basis for denial;

  • Understand the purpose and intent behind their visa and what is permitted, including whether they will be permitted to work, have their children in school, or study and for how long;

  • Have a readily available list of all addresses, phone numbers, employers, past passport numbers and visas, and family members which are not asked for on the application for the last fifteen years;

  • Have a readily available list of ties to their home country including bank statements, employer records, property ownership, and family names;

  • Review and edit your social media history as best you can, particularly if you have spent time in the Middle East. This can include any posts which may be interpreted as supporting ISIS or other terrorist groups, or being critical of the U.S. Sadly there is no clear guidance on what types of posts may be interpreted this way; and,

  • Work with an immigration attorney to mitigate any potential pitfalls you may encounter in your interview.

Unfortunately, consular officers are given wide discretion and broad authority when it comes to reviewing NIV/IV applications. With the current political climate, it should be expected that there will be much greater scrutiny and increased denials for consular processing in the next few months, particularly for any applicant who has ties to the Middle East. Additionally, while the President's travel ban may be stayed, Muslim applicants should expect more stringent review than others.

Applicants who are worried should always contact an experienced immigration attorney to help mitigate and prevent as many issues as possible before going to their consular interview.

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