Federal Agencies, Agency Memos & Announcements

DOS Cable on Iran Sanctions and Residency

1/13/98 AILA Doc. No. 98011359. Consular Processing

R 090145Z JAN 98
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BUJUMBURA
AMEMBASSY SARAJEVO

UNCLAS STATE 003774

VISAS

E.O. 12958: N/A
TAGS: CVIS

Subject: Iran Sanctions: Iran Residency

Ref: (A) 97 State 17598 (B) 97 Vienna 8886 (Notal) (C) Newcomb (OFAC) - Hamilton Letter of 7/29/97
(D) Executive Order 12959 of May 6, 1995
(E) Executive Order 12613 of October 29, 1987

1. Reftel A informed posts that the Director of the Office of Foreign Assets Control (OFAC), Department of the Treasury, in consultation with the Secretary of State, had determined it is unlawful under Iran sanctions for a U.S. employer to issue an offer of employment to an Iranian national resident in Iran. Posts were requested to refuse employment based visas for Iranian nationals resident in Iran under INA 221(g), until INS makes a judgment on whether OFAC’s determination formed a basis to deny/revoke employment based petitions for Iranian nationals living in Iran. INS has not yet informed the Department of a decision on this issue.

2. Reftel B was one of several inquiries asking what constitutes residence in Iran. OFAC’s letter to the Department touched on this issue only as it relates to an exception to the sanctions: that it is not unlawful to offer employment to Iranian nationals "resident in the United States." In that context, OFAC has determined that "resident" includes "any Iranian national living in the U.S., irrespective of whether the Iranian national is a U.S. permanent resident alien or a temporary resident."

3. VO has interpreted this statement to mean that a U.S. employer is not violating sanctions by hiring or offering employment to Iranian nationals already in the United States as permanent residents. However, it would be a violation for a U.S. employer to offer employment to an Iranian national in valid nonimmigrant status in the U.S. who, by definition of his or her immigration status, must have an unabandoned residence abroad (B, F, I, H, M). Hence, Iranians who were recently in the U.S. in one of these valid nonimmigrant categories cannot be considered resident in the U.S. This does not include those Iranians already in the U.S. in a nonimmigrant category that does not require an unabandoned residence abroad by definition (H-1, L-1, C, D, E, G, R, S NIV Immigration status or parole).

4. OFAC has not defined residence or Iranian nationals living outside the United States, therefore, VO is of the opinion that conoffs should use the INA definition of residence, found in INA 101(a)(33), to determine whether an applicant is an Iranian national "resident in Iran." INA 101(a)(33) defines "residence" to mean: "place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent."

5. VO notes that this is an issue of fact, and determinations in this regard should be based on a consideration of the totality of the circumstances in each individual case, rather than on mechanical consideration of whether an applicant was granted a legal right of residence in a third country, or whether the alien remained out of Iran for some fixed period. For example, the fact that an alien was granted legal residence in a third country is not in itself determinative of "residence" as defined above, although it is a legitimate factor to consider in this regard. An alien granted legal resident status in a third country who has never in fact resided there would normally not be considered to have "resided" in that country, while an alien in temporary legal status in a third country who lived and worked there for several years would normally meet the INA definition of "residence."

6. The amount of time spent out of Iran also needs to be evaluated in the light of all other circumstances. For example, an alien who spent several years in a third country as an undergraduate student while maintaining ties to Iran through holiday visits, etc. could reasonably be considered to be a resident of Iran, while a graduate student who purchased a residence in a third country, established a family there, and enrolled children in school there might reasonably be considered to have a residence outside of Iran even after only six months out of that country. Non-student Iranians who also established permanent businesses in third countries, raise families there and have other permanent ties to a third country, even over a short amount of time, could also reasonably be considered to have a residence outside Iran, while an Iranian who only has trade links or very tenuous/fluid ties to a local third country business community could reasonably be considered not resident in that third country.

7. Department requests posts use this definition in assessing whether applicants are resident in Iran, and are thus prohibited from obtaining employment based visas to the U.S. VO is ready as always to assist post and encourages conoffs to submit advisory opinion requests when dealing with complicated cases.

8. Minimized considered.

Madeleine Albright