DOS Cable on Creation of S Visa
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
LUANA POUCH
DUSHANBE POUCH
ASMARA POUCH
KIGALI POUCH
KHARTOUM POUCH
BRATISLAVA POUCH
BUJUMBURA POUCH
UNCLAS STATE 261057
VISAS
E.O. 12356: N/A
TAGS: CVIS
SUBJECT: 101 (A) (15) (S)
1. Summary: The Congress passed the "violent crime and control and law enforcement Act (P.L. 103-322) of 1994" and on September 13, 1994 the President signed it into law. This Act, effective immediately, creates a new nonimmigrant visa classification providing for the admission into the United States of certain witnesses and other aliens supplying critical information relating to acts of terrorism and criminal behavior. End Summary
2. The "S" visa: The Congress created yet another nonimmigrant visa classification at INA 101 (A)(15)(S). This visa classification provides for the admission of two classes of aliens. The first class described in (S) (i) involves aliens who possess certain reliable information critical to a federal or a state government investigation and/or prosecution of an individual in a criminal organization or enterprise. The Attorney General determines which alien qualifies for the S-1 visa. There is an annual numerical limitation of 100 for this class. The second class of aliens, falling under the (S) (ii) visa classification involves those possessing critical information sought by certain federal authorities and who might be placed in danger for supplying such information, and who are eligible for the "terrorism information" award. In this case, the Secretary of State and the attorney general would determine which aliens qualify. Again, an annual numerical limitation is imposed in this case 25. This section provides for derivative spouse and children within the discretion of the Attorney General for the S-1 visa and the Attorney General and the Secretary of State for the S-2 visa.
3. Waiver of ineligibility: anticipating that aliens otherwise qualifying for S visa issuance may be ineligible under one of the INA 212 (A) grounds of ineligibility, Congress added 212(D) (1) waiver provisions specifically for the "S" visa classification.
4. Prohibition of change of status: Aliens classified as S-1's or S-2's are prohibited from changing status to another nonimmigrant visa classification. INA 248 is amended accordingly.
5. Adjustment of Status: INA 245 is amended to provide for the Adjustment of Status for aliens in "S" status to permanent resident status under certain circumstances.
6. Procedures: At this nonimmigrant visa classification boasts novel features which appear to require extensive coordination among several units within the Justice and State Departments, specific procedures have not yet been established. When the regulations are prepared, based on these yet to be established procedures, they will be disseminated to the field.
7. Statutory provisions: A future 9 FAM TL will transmit copies of INA 101 (A) (15) (S) and 212 (L). These two sections are provided below for information purposes.
INA 101 (A) (15) (S) reads as follows:
"(S) subject to section 214 (J), an alien- "(i) who has the attorney general determines- "(I) is in possession of critical reliable information concerning a criminal organization or enterprise; "(II) is willing to supply or has supplied such information to federal or state law enforcement authorities or a federal or state court; and "(III) whose presence in the united states the attorney general determines is essential to the success of an authorized criminal investigation or the successful prosecution of an individual involved in the criminal organization enterprise; or "(ii) who the secretary of state and the attorney general jointly determine. "(I) Is in possession of critical reliable information concerning a terrorist organization, enterprise or operation; "(II) is willing to supply or has supplied such information to federal law enforcement authorities or a federal court; "(III) will be or has been placed in danger as a result of providing such information; and "(IV) is eligible to receive a reward under section 36 (A) of the state department basic authorities act of 1956, and, if the attorney general (or with respect to clause (ii), the secretary of state and the attorney general jointly) considers it to be appropriate, the spouse, married and unmarried sons and daughters, and parents of an alien described in clause (i) or (ii) if accompanying, or following to join, the alien."
INA 212 (D) (1) reads as follows:
"(1) The Attorney General shall determine whether a ground for exclusion exists with respect to a nonimmigrant described in section 101 (A) (15) (S). The Attorney General, in the attorney general's discretion, may waive the application of subsection (A) other than paragraph (3) (E) in the case of a nonimmigrant described in section 101 (A) (15) (S). If the attorney general consider it to be in the national interest to do so. Nothing in this section shall be regarded as prohibiting the immigration and naturalization service from instituting deportation proceedings against an alien admitted as a nonimmigrant under section 101 (A) (15) (S) for conduct committed after the alien's admission into the United States, or for conduct or a condition that was not disclosed to the Attorney General prior to the alien's admission as a nonimmigrant under section 101 (A) (15) (S)."