The Daily Demarche
Monday, April 18, 2005
Visas and Immigration - Comment and Critique, Part I

As I noted in the comments section of the Dr’s recent piece, having a young baby has kept me from blogging too much lately. I do apologize, but I hope our readers will understand. It is my aim to make up for the low quantity of posts with the occasional high quality post, but readers will have to judge that for themselves.

I have threatened, in comments past, to write a post on the subject of immigration, which, as readers will know, is a subject close to our heart at the Daily Demarche. As all FSOs do, I have spent my time on the visa line (readers can read my impression of the experience here), and the experience has left me with some thoughts on how the whole situation could be improved. I’m going to focus separately on the State role in the immigration process (i.e. visa issuance) as well as the Customs/Immigration aspect, although I possess much more familiarity with the former, of course. There are going to be a lot of acronyms flying off the page in this piece, and I suspect it is going to be long enough to make New Sisyphus and Eric Martin proud, so buckle your seat belts, sharpen your pencils, and lets get going.

The State Department And Its Role In The Visa Process

To begin with, I’m going to explain how a foreigner gets to the US. Let us assume for the time being that the foreigner wants merely to visit the US for a short stay, to study, or two work temporarily. These workers all apply for something called a Non-Immigrant Visa (NIV). Possessing an NIV is the first stage in entering the US. Basically, and NIV allows one to board a plane bound for the US and apply for entry, which must then be granted by an Immigration officer of the US Department of Homeland Security, Bureau of Customs and Border Protection (CBP). Getting the NIV requires applying at an American Embassy or Consulate, and the NIV is issued by a Foreign Service Officer of the State Department.

Adjudicating NIVs requires a knowledge of some of the finer aspects of the Immigration and Nationality Act (INA), specifically section 214(b), which states that all applicants (with a few exceptions) must be considered intending immigrants to the United States until they can prove otherwise. In other words, the law requires a consular officer to presume that the person standing in front of them does not qualify for a visa; the burden of proof is on the applicant to show that he or she will return to their country of origin. While I don’t know the exact statistics, it is safe to say that the overwhelming majority of visa refusals come as a result of section 214(b), also known simply as “b” in the jargon.

A further discussion with the current state of visa issuing policy must note that, when listing the various failures that led to the 9/11 attacks, there is no real way to deny that State must shoulder a significant portion of the responsibility. Certainly there were other agencies at fault – State is by no means alone on the list of guilty parties – but the fact remains that the 9/11 hijackers all possessed US visas. This is a sobering thought to those of us who have sat on the other side of the bullet-proof glass since that day. Heck, it is beyond sobering – it is petrifying. And that is how it should be.

What does not seem to be as well reported (and what journalists like Joel Mowbray have ignored, either consciously or through negligence) is that State has reacted quite well to the problems that led to those individuals receiving visas. I do believe that more change is needed, and I’ll deal with that later, but an honest account of the post 9/11 situation at the Bureau of Consular Affairs must note the changes that the Department has made (although they also serve, sadly, to highlight the astonishing number of lacunae in the visa process pre-9/11).

Since 9/11, State has made the following changes to the visa process:

-Significantly changed the regulations for applicants who must come in person for an interview. Currently, all applicants between the ages of16 and 60 must come for an interview. This means that roughly 90% of all applicants must be interviewed.

-Instituted mandatory fingerprint scanning for all visa applicants between the ages of 14 and 80. Fingerprints are scanned via an infrared scanner which enters the information into the USVISIT database.

-Increased the amount of time spent in consular training on visa interviews.

-Greatly increased consular access to other government databases, including the FBI’s National Criminal Interstate Information Index (NCIII). This is very important because other government agencies had derogatory information about two of the 9/11 hijackers but did not share it.

These are all significant (and long overdue) changes. However, I don’t believe that they go far enough. I propose the following additions to those listed above:

-Further train consular officers in interviewing techniques.

Currently, consular officers do undergo such training, however, it could be better, and there could be more of it. I refer here specifically to the type of training in interrogation, elicitation, etc., that law enforcement officers receive. I propose that State bring in an FBI or police interrogator to train consular officers. I was lucky enough to receive, in a roundabout way, this kind of training and I can’t tell you how much it helped my ability to discern when someone was lying to me, and to help me extract information from them to bolster my suspicions.

-Greater access to the myriad databases that the US government possess.

While I did mention above that consular officers now have access to the NCIC, it is limited in that it only shows an individual’s name, some minor biographic information (height, weight, hair color), a reference date, and little else. Thus, a consular officer doesn’t know if the applicant in front of them (who just returned an NCIC hit in the database) jumped ship 10 years ago when he was a sailor and met a girl in New York, or if he went on a seven state killing spree at that time. It makes a difference. Currently, the only way to find out if the applicant is the person listed in the database is the individual in front of the officer is to make them submit a full set of fingerprints (in ink, separate from the USVISIT scans I mentioned above) and to send the prints off to the National Visa Center for an FBI agent to evaluate them. This is stupid, and it wastes everybody’s time: the officer’s, the applicant’s, and the FBI’s. It is absurd that consular officers don’t have access to this database.

Furthermore, DHS (that would be the Department of Homeland Security, remember?) maintains a veritable alphabet soup of databases to which consular officers have either partial or no access: NIIS, TECS, DACS, the list goes on. These databases are very useful, because they can track when an applicant has entered the United States, and occasionally, when they leave it (more on that later). These are very useful tools for visa officers that would make our borders more secure, yet are not available unless they happen to a) work at a post that has a DHS presence, and b) have good relations with their DHS colleagues.

I think I'm going to leave it here for right now. Tomorrow I hope to be back with more commentary, wrapping up the State angle, and giving my take on how to better arrange the vast and varied aspects of the Department of Homeland Security Immigrations, Customs, and Border Patrol.

UPDATE: Thanks to alert reader LB, who points out that Customs and Border Protection (CBP), not Immigration and Customs Enforcement (ICE), handles travelers at the point of entry into the US. I've changed the post to reflect this.

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dé·marche 1) A course of action; a maneuver. 2) A diplomatic representation or protest 3) A statement or protest addressed by citizens to public authorities.

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