American Immigration Lawyers Association
918 F Street, N.W. Washington, D.C. 20004  
(202) 216-2400

September 5, 2003

Via email: visaregs@state.gov

The Honorable Maura Harty
Assistant Secretary for Consular Affairs
U.S. 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.

GENERAL COMMENTS

The Visa Interview is Not a Substitute for Good Intelligence, Efficiently Shared

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 device.¹

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 shared.

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 specifically forbidden.⁸

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 implementation.⁹

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.

Specific Recommendations

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 do so.

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 relevant agencies.

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.

CONCLUSION

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 breeds fear. 

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 workload.”

Thank you for the opportunity to submit these comments.

Respectfully submitted,
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. 6.
³   Id.
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. 16.
⁶   Id. at p. 19.
⁷   DOS cable No. 136100, supra note 1.
⁸   Id.
⁹   Inspector General’s Report, supra note 2, at p. 7.
¹⁰ Interim Rule, 68 Fed. Reg. 40127 (July 7, 2003).
¹¹ Id. at p. 40128.