Increased Scrutiny of Visa Applications and Possible Delays

On March 17, 2017, the Department of State (“DOS”), through the Secretary of State, issued a cable to all US consulates and embassies with guidance on enhanced screening and vetting of applications for US visas and other immigration benefits. The March 17 cable superseded earlier, similar cables in order to comply with the Temporary Restraining Order of the administration’s second “Travel Ban” granted by the US District Court for Hawaii on March 15.

This series of cables is the first action from the DOS following President Trump’s March 6, 2017 executive order and related Memorandum for the Secretary of State, Attorney General and the Secretary of Homeland Security. The President’s Memorandum directed these agencies to “implement protocols and procedures as soon as practicable that in their judgment will enhance the screening and vetting of applications for visas and all other immigration benefits, so as to increase the safety and security of the American people.” The stated goal of this scrutiny is to prevent “the entry into the United States of foreign nationals who may aid, support, or commit violent, criminal, or terrorist acts; and, 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.”

This DOS cable is most relevant for visa applicants because immigrant and nonimmigrant visas are issued abroad at US embassies and consulates. It is DOS that has jurisdiction over any increased scrutiny applied to these applications. The language of the cable is general and utilizes existing security clearances and other tools for this enhanced scrutiny. Outlined below are the key points of this cable, but the cable indicates more detailed screening measures can be expected in the future:

1. Reminds consular officers to refuse any application presenting security concerns under section 221(g) of the Immigration and Nationality Act (“INA”). This is the provision that results in a refusal of the visa application and an “administrative processing” hold on visa issuance until a Security Advisory Opinion (“SAO”) can be obtained from the Visa Office at DOS headquarters in Washington, DC. There had been an increase in these holds even before the Trump administration took office. These usually result in a visa issuance delay of 30 to 60 days.
2. The cable directs consulates to convene law enforcement and intelligence partners to develop a list of criteria warranting additional screening of visa applicant populations.
3. If a visa applicant falls within a population identified for additional screening, the adjudicating consular officer should consider making a discretionary SAO request, even if the applicant is otherwise eligible for a visa.
4. Once approved by the Office of Management and Budget, this type of discretionary SAO will likely require additional questioning of the visa applicant that goes beyond the normal visa application form.
5. Highlighting the government’s concern about social media contents, the cable mandates social media checks for any applicant who has been present in a territory that was controlled by ISIS. This guidance also applies to an applicant using an Iraqi passport.
6. Finally, the cable mandates that no more than 120 visa interviews should be scheduled per day, per consular adjudicator. Because this is likely a smaller number of visa interviews than the number typically scheduled per adjudicator at most posts, the cable acknowledges that the wait time for scheduling visa interviews will increase.

While it has always been the case that US Consulates apply strict scrutiny to every visa applicant, the DOS cables highlight the Trump administration’s intention to apply even greater scrutiny to visa applicants going forward. The emphasis on social media checks and the instructions regarding the maximum number of applicants each consular officer may interview each day presage potentially significant delays in visa processing for the visa applicants who meet the criteria in the above-referenced cables.

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