Cite as "AILA InfoNet Doc. No. 03090843 (posted Sep. 8, 2003)"
American Immigration Lawyers Association
918 F Street,
N.W. Washington, D.C. 20004
September 5, 2003
Via email: firstname.lastname@example.org
The Honorable Maura Harty
Assistant Secretary for Consular Affairs
Department of State
2401 E Street, N.W.
Washington, D.C. 20522-0106
Re: Comments to Interim Rule “Documentation of Nonimmigrants Under the
Immigration and Nationality Act, as Amended; Personal Appearance” Public Notice
4393 (68 Fed. Reg. 40127 (July 7, 2003))
Dear Ms. Harty:
The American Immigration Lawyers Association (AILA) submits the following
comments on interim regulations published in the Federal Register on July 7,
2003, that codified changes made to the Department’s policy regarding the waiver
of nonimmigrant visa applicant interviews.
Founded in 1946, AILA is the national association of over 8,000 attorneys and
law professors who practice and teach immigration law. AILA Member attorneys
represent tens of thousands of U.S. families who have applied for permanent
residence for their spouses, children, and other close relatives to lawfully
enter and reside in the United States. AILA Members also represent thousands of
U.S. businesses and industries who sponsor highly skilled foreign workers
seeking to enter the United States on a temporary or permanent basis. AILA
Members also represent foreign students, entertainers, athletes, and asylum
seekers, often on a pro bono basis.
A critical aspect of AILA’s educational and informational efforts on behalf
of its members is its ongoing liaison with relevant U.S. government agencies and
personnel. Suffice it to say that we sincerely appreciate our long and
productive professional liaison relationship with the Visa Office and offer
these comments in that spirit and with the utmost respect.
The Visa Interview is Not a Substitute for Good Intelligence, Efficiently
The new personal appearance waiver (PAW) policy codified in the interim rule
significantly reduces the number and kinds of situations in which consular
officers may waive the requirement that an applicant for a nonimmigrant visa
appear for an interview. The intended consequence of the new policy is the
promotion of the visa interview as “a crucial tool—in many cases the key tool”
for strengthening the visa process as an antiterrorism
We do not gainsay that, in certain situations, interviews can provide
consular officers with information useful in adjudicating visa
applications. Even so, the collective gut reactions to
encounters with strangers in foreign lands and cultures of even the most
experienced consular officers equipped with adequate resources are no substitute
for the most effective antiterrorism device of all: good intellence, efficiently
Unfortunately, most interviews do not occur in such ideal circumstances.
Based on the experience of AILA members, as well as the consistent experience
of their clients, it is a rare visa interview that lasts much longer than two
minutes. AILA wonders how much even highly trained, senior officers, of
the kind who rarely conduct visa interviews, asking all the right questions, can
accomplish in the space of two minutes, or three, or five. With the new
PAW policy in effect, it is inconceivable that interviews will last longer, and
likely that they will become even shorter, on average.
A policy that significantly increases the number of visa interviews, by
itself, does not necessarily result in the issuance of fewer visas to those who
would do us harm. As the Department’s Inspector General noted late last
year: “Because of the limitation on the NIV interview, even with better training
for the interviewers and more time for thorough questioning, there is no
guarantee that terrorists will be identified. The visa interview is not a
substitute for good intelligence information available to visa adjudicators
through CLASS.”2 The bottom line, according to the
the Inspector General: “committed and trained terrorists will probably be able
to defeat interview procedures.”3
The Interim Rule Increases Substantially the Consular Posts’ Interview
Workload Without a Concomitant Increase in Resources
In fiscal year (FY) 2002, 843 consular officers processed 8.3 million
nonimmigrant visa applications. It is thought that in some posts as few as 20
percent of applicants were interviewed. The new PAW policy will mean that
about 90 percent of visa applicants will now be interviewed (thus generating, in
some posts, an increase in visa workload of up to 70 percent)—without an
attendant increase in the number of consular interviewers or other resources.
The expected surge in the number of visa interviews, without a concomitant
increase in resources to meet these new work demands, has led the Department to
warn of processing backlogs at many posts “for the indefinite
future.”4 Significant backlogs already have
developed at the posts of some of our most important trading partners, such as
London and Frankfurt, and already-serious delays are growing. The effect
of these delays will be the further discouragement of travel to the United
States—which already has seen a precipitous decline (reflected in a decrease of
20 percent in visa applications in 2002)—which in turn will damage numerous
sectors of the economy.
The new mass interviewing policy also places an unfair burden on the consular
officers whose job it is to carry out these interviews. The experience of
the U.S. Embassy in Cairo, Egypt may prove instructive. According to an
October 2002 report from the U.S. General Accounting Office (GAO), Cairo
experienced a 45 percent increase in visa workload in FY
2001.5 The significant increase in hours devoted
by consular officers to visa interviews led to “staff burnout.” In
addition, the increased workloads left very limited time for consular training,
since officers were needed to work at the interview windows for most, if not all
of the day.6
The Cairo experience might be avoided if the significant increase in workload
generated by the new PAW policy were matched by a parallel increase in human and
other consular resources. But this is not to be. A May 21, 2003,
Department of State cable to consular officers warned that “…posts must
implement the new interview guidelines using existing
resources.”7 Moreover, the use of overtime pay as
a means of motivating consular officers to take on the additional workload is
Given the Cairo experience, AILA finds it difficult to understand how the new
PAW policy promotes the kind of careful attention needed for performance of one
of the most demanding jobs of the consular officer. We are concerned that
a significant increase in workload without a parallel increase in human and
other consular resources will mean that visa interviews may be conducted by
“burned out,” oftentimes junior consular officers with insufficient training and
waning motivation to perform this most critical of tasks.
The Inspector General’s Recommendation Regarding the Development of PAW
Policy Should be Followed
The Department’s Inspector General shares our concerns. In reviewing
nonimmigrant visa issuance policy and procedure late last year, the Office of
the Inspector General (OIG) recommended that the Consular Affairs Bureau:
[d]evelop and implement a policy requiring each mission to create a personal
appearance waiver program that is based on local conditions and approved by the
chief of mission….Each mission program should be reviewed and approved by the
Office of Visa Services and the appropriate regional bureau before
Importantly, the Inspector General did not suggest eliminating the
long-standing deference to local consular discretion, meant to promote the best
interests of post visa operations, on the basis of experience with local
applicant pools. Instead, the Inspector General sought to ensure that such
discretion was considered and approved by a chain of entities within the State
Department that are versed in national security issues. In so doing, the
Inspector General’s recommendation strikes a reasonable balance between the need
for efficient consular operations and the imperative for national security.
The new PAW policy upsets this balance. In lieu of the historical
deference to local PAW policy based on conditions specific to the consular post
and the host country, the Department has opted to express its “authority to set
interview policies centrally.”10 In the end,
crushing consular discretion will exact a heavy toll: it will exacerbate
operational inefficiencies, lower consular morale, and humiliate law-abiding
foreign nationals who have the potential to contribute to this nation.
The best course of action would be for the Department to halt implementation
of the new PAW policy if unable to increase resources immediately to meet these
new work demands. However, if the Department chooses to proceed with the
policy, we believe that some of the harsher consequences arising from its
implementation could be ameliorated by amending the interim rule to adopt the
following specific suggestions:
The interim regulations, while significantly reducing the number and kinds of
situations in which consular officers may waive the nonimmigrant visa interview
requirement, does provide for such discretion in the case of applicants who seek
reissuance of a nonimmigrant visa within 12 months of the expiration of a
previously issued visa of the same type (with certain other restrictions
applying). Since the premise of the PAW policy is that nonimmigrant visa
interviews are required, not to determine normal eligibility more closely but,
rather, to root out terrorists, the rule should be amended to allow consular
officers the additional discretion to waive interviews in the case of
individuals who are applying for a visa other than their current type of
visa, as long as they were interviewed within the previous 12 months. For
example, based on local security conditions, the consuls in Saudi Arabia may
choose not to waive such interviews but those in Germany or France may wish to
Clarify that if one must apply for reissuance at the “post of the applicant’s
usual residence,” it is acceptable that the initial visa was issued at a
different post. Moreover, the rule should define what the phrase “post of
applicant’s usual residence” means, as most of the individuals applying under
this exception will have a “usual residence” in the United States, if residence
is equated to actual dwelling place without regard to future intent, as it is
under the INA.
Clarify that a waiver of interview is proper when the applicant has had an
intervening status in the United States. For example, is someone applied
for a short-term H-1B visa in January, then applied for an F-1 in May to attend
summer school, he or she should nonetheless be eligible for the waiver in
December when seeking a new H-1B.
Provide an automatic waiver for those employed in defense or security
occupations (public and private sectors) who already have been cleared by the
Institute a “frequent flyer” program of some type, to enable applicants who
repeatedly come to the U.S., particularly in petition-based classifications, to
avoid having to be re-interviewed each year.
Waive, or at least prioritize, interviews in cases involving fixed deadlines
(such as school years or performances) and documented emergencies.
Perform base-line security checks prior to interview.
This Rule Will Have a Significant Economic Impact
AILA strongly questions the conclusions in the rulemaking that the new PAW
policy “is not expected to have a significant economic impact on a substantial
number of small entities,” under the Regulatory Flexibility Act, and we question
the conclusion that the rule “will not result in an annual effect on the economy
of $100 million or more…or [sic.] significant adverse effects on
competition, employment, investment, productivity, innovation, or on the ability
of United States-based companies to compete with foreign-based companies in
domestic and export markets.”11
How did the Department reach these conclusions? Did it cumulate and
analyze data for this purpose? The inevitable decrease in visa
applications, and in the ability of people to obtain visas in time to begin
school, join a tour, seek medical attention, attend a conference, pursue a
business deal, or meet a performance obligation, will drive away millions of
dollars in revenues to the scholastic, tourism, medical, business, trade,
scientific, entertainment and athletic sectors. Government income will be
affected as well, in lost tax revenues and in something as simple as the
machine-readable visa (MRV) fee. Lest we forget, the MRV fee alone
for each applicant is $100. The 20 percent reduction in visa applications
in fiscal year 2002 alone meant a loss of roughly $200 million to the
Department’s own MRV fee account. It is not unreasonable to speculate that
making it even more difficult for visa applicants to apply, particularly at $100
per application—win, lose or draw—will cost a multiple of this amount.
AILA recognizes that security concerns are, and must remain, paramount in
protecting both our people and our national interests. However, we believe
the Department will be hard-pressed to conclude that the new PAW policy will
make the visa interview a more meaningful tool in fighting international terror
and promoting national security. The policy imposes significant new
demands on an already taxing consular workload, while refusing to provide
additional human and other resources to assist in meeting the challenge.
Moreover, we believe any new PAW policy should be subject to the same
cost-benefit analysis that the Administration so forcefully argues should govern
all other regulations.
By this standard, the Administration would have to consider the adverse
effects created by the PAW policy, particularly when combined with the equally
corrosive effects from other sources. It is a matter of public record that
various sectors of the U.S. economy are suffering for want of patients
(hospitals) and students (higher education) and artists (entertainment).
It is a fair inference that the notable decline in tourist visa applications
means that far fewer foreign tourists are coming to our shores, with predictable
ill-effects on the hospitality and transportation sectors. It is equally
fair to assume that far fewer aliens with leading-edge or essential skills, and
foreign investors, and executives and managers, wish to come to the U.S.
All these potential immigrants and nonimmigrants will go somewhere else instead,
and we do not doubt that the principal beneficiary will be the European
Community, already viewed as our chief economic competitor.
Ultimately, the question is whether the PAW policy makes us, as a nation,
more secure or less secure. We may have fleeting discourse with more visa
applicants but, in doing so, we will be further isolating ourselves from the
world community. Isolation breeds misunderstanding. Misunderstanding
To its credit, the Department of State has made extensive efforts post-9/11
in the fight against terrorism. But visa interviews are not a panacea in
this fight—they are, together with documentation review and security checks, one
of several tools available to consular officers in strengthening the visa
process as a firewall in the fight against terrorism. The new mass
interviews will certainly prove the point of AILA President Palma Yanni, who, in
her recent congressional testimony, said “at no time in memory have the delays
in visa issuance been so acute, nor the impact so profound.”
In light of the above, we respectfully urge the Department to either: (1)
halt implementation of the new PAW policy if unable to increase resources
immediately to meet these new work demands; (2) ameliorate the harshest
consequences arising from implementation of the new policy by adopting the
specific suggestions, outlined above; or (3) recreate local PAW discretion with
appropriate checks and balances, thus meeting the OIG’s and GAO’s call for a
balance to be struck between national security concerns and “the desire to
facilitate legitimate travel, provide timely customer service and manage visa
Thank you for the opportunity to submit these comments.
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
1 See Dep’t of State (DOS) cable No. 136100,
dated May 21, 2003.
2 U.S. Dep’t of State,
Office of the Inspector General, Memorandum Report ISP-I-03-26, “Review of
Nonimmigrant Visa Issuance Policy and Procedures,” Dec. 2002, at p.
4 DOS cable No.
136100, supra note 1.
5 U.S. General Accounting
Office (GAO), Report to Congress, “Border Security: Visa Process Should be
Strengthened as an Antiterrorism Tool,” Oct. 2002, at p.
6 Id. at p.
7 DOS cable No. 136100, supra note
Inspector General’s Report, supra note 2, at p. 7.
Interim Rule, 68 Fed. Reg. 40127 (July 7, 2003).
11 Id. at