By Stanley Mailman and Stephen Yale-Loehr**

The terrorist attacks of September 11, 2001 have had a dramatic impact on the way foreign visitors are screened before entering the United States. Exactly one year after the attacks, the Attorney General imposed special registration procedures on most nationals of Arab and Moslem countries, discussed in this column on October 28, 2002. But visitors from all over the world are now facing increased delays in entering the United States as a result of recent measures taken to improve our security by Congress, the Department of Homeland Security (DHS), and the State Department. This article summarizes those measures and ponders their impact on the U.S. economy.

Visa Interview Requirements

The 9/11 attacks prompted a complete re-evaluation of visa screening measures. A U.S. General Accounting Office (GAO) study found that at least 13 of the 15 hijackers from Saudi Arabia were never interviewed by U.S. consular officers before they were granted visas, and not one had filled in his application properly. Three hijackers obtained their documents through travel agents under a “visa express” program that has since been abandoned. General Accounting Office, Report No. GAO-03-132NI, Border Security: Visa Process Should Be Strengthened as an Antiterrorism Tool 45 (Oct. 21, 2002).

In response to such criticism, the State Department published a regulation in July announcing that it would begin interviewing almost all applicants for nonimmigrant (temporary) visas. 68 Fed. Reg. 40,127 (July 7, 2003) (amending 22 C.F.R. § 41.102). It is estimated that the personal interview requirement, which began August 1, applies to about 90 percent of visa applicants from countries in the Middle East, Asia and Latin America. Dan Eggen, Tougher Rules On U.S. Visas Bring Fears of Long Backlogs, Washington Post, May 24, 2003. The new rule does not affect citizens of Canada and 27 other countries -- most of them in Europe -- who are not required to obtain U.S. business or tourist visas because they are eligible for the visa waiver program. That program is undergoing other changes, however, described later in this article.

Under the new rules a consular officer may waive a visa interview only for: (1) individuals under the age of 16 or over 60; (2) diplomats and government officials; (3) individuals who are seeking a timely revalidation of their visa; and (4) limited emergency circumstances. 68 Fed. Reg. at 40,128-29.

The new interview requirement loads more work on already overworked consular officers. Only 843 consular officers preside over 8 million visa applications annually. General Accounting Office, Report No. GAO-03-132NI, Border Security: Visa Process Should Be Strengthened as an Antiterrorism Tool 7 (Oct. 21, 2002). Even now, the lines at embassies are often so long that consular staffers only have only a few minutes to conduct each interview. The State Department has added 39 consular officers this year and will add 80 next year, but that may not be enough.

Because of the mandated interviews, backlogs will undoubtedly worsen. Analyzing data from the U.S. embassy in Seoul, the American Chamber of Commerce in Korea estimates that the added interviews will mean about a six-month wait for a visa appointment in Seoul. Testimony of Randel K. Johnson, Vice President of Labor, Immigration and Employee Benefits, U.S. Chamber of Commerce, before the House Committee on Government Reform, July 10, 2003. Consular posts in Rome, Paris, Tokyo, and Taipei are also expected to be hit particularly hard. Testimony of Janice L. Jacobs, Deputy Assistant Secretary for Visa Services, Department of State, before the House Committee on Government Reform, July 10, 2003. Immigration lawyers report that nonimmigrant visa applicants must now wait about six weeks for an appointment at the U.S. embassy in London.

As one news article noted, the new approach is like a U.S. citizen who wanted to visit, say South Africa, having to call the South African embassy on a 1-900 number to schedule an interview several weeks in advance, travel to Washington, DC for the interview, stay overnight in a hotel, fly back home to await the visa’s arrival by mail, and only then be allowed to leave on the trip. Abraham McLaughlin, Foreign Visits to US Drop Sharply, Christian Science Monitor, July 30, 2003.

Heightened Security Clearance Requirements

Since 9/11, the State Department has also intensified background checks on the eligibility of anyone seeking entry to the United States. This is generically called a “visa lookout.” State Department consular posts use a computer program called the Consular Lookout and Support System (CLASS) to check names and visa eligibility of all visa and passport applicants. See U.S. Dep’t of State, 9 Foreign Affairs Manual (FAM), Part IV Appendix D section 200.

Before 9/11, CLASS had 6.1 million records from various government agencies. Since 9/11, the State Department has added over 7.3 million new records, primarily FBI criminal history data, to CLASS. Testimony of Janice L. Jacobs, Deputy Assistant Secretary for Visa Services, Department of State, before the House Committee on Small Business, June 4, 2003.

Additionally, a visa application may require special clearance procedures for any of several reasons. Clearance procedures based on possible security concerns are known as security advisory opinions, or SAOs. Two types of SAOs have had a particular impact on visa applicants. The Visas Condor program requires consular officers to obtain security clearances for all male visa applicants between the ages of 6 and 45 from any of 26 countries, mostly in the Middle East. The Visas Mantis program requires security clearances for people studying or working in sensitive areas identified on the Technology Alert List.

Before 9/11 consular officers submitted SAOs to the State Department headquarters in Washington, DC and then waited. If they did not hear back within 30 days, they could assume there was no objection and issue the visa. No more. Now consular officers must wait for an affirmative response from relevant agencies (usually the FBI) before approving a visa.

The State Department is not the only agency seeking name checks from the FBI. Even before September 11, 2001, the FBI processed approximately 2.5 million name check requests per year. That number is expected to reach 9.8 million this year, an increase of more than 300%. Of that total the FBI will process approximately 200,000 visa name check requests, including approximately 75,000 Visa Condor requests and 25,000 Visa Mantis requests. Testimony of Robert J. Garrity, Jr., Acting Assistant Director, Records Management Division, Federal Bureau of Investigation, before the House Committee on Government Reform, July 10, 2003.

The FBI estimates that it completes about 90% of visa name checks within 30 days. Id. By that math, about 20,000 visa applicants per year (10% of 200,000) will have to wait longer for their security clearances.

Foreign Student Tracking System

The Student and Exchange Visitor Information System (SEVIS) is a new computerized system to track nonimmigrant students and exchange visitors. It requires colleges and universities to document each foreign student’s or exchange visitor’s name, local address, enrollment status, and other information in a centralized computer database. Educational institutions had until August 1 to register their students.

Nearly 6,000 schools registered their students in SEVIS on time. But another 600 U.S. colleges and universities have failed to do so, according to the DHS. Bureau of Immigration and Customs Enforcement, ICE Prepares U.S. Schools and Foreign Students for August 1, 2003 SEVIS Deadline (July 29, 2003), available at http://www.bice.gov/graphics/press/sevis.pdf (last visited Aug. 13, 2003). This means that potentially thousands of unregistered students may be denied entry into the United States as they return for the start of the academic year. It also means longer delays for individuals applying for student visas at U.S. consulates overseas.

New Restrictions on Visa Waiver Entrants

Since 1986 individuals from certain countries have been able to visit the United States on business or for pleasure for up to 90 days without first having to obtain a visa. Currently 27 countries, mostly in Europe, participate in the visa waiver program (VWP). See generally 2 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 12.04[6][d] (2003). Over 15 million foreigners enter the United States each year under the VWP, saving consular officers thousands of hours by not having to issue them visas. But the program has also been criticized since 9/11 as a potential hole in the fence for terrorists. General Accounting Office, Report No. GAO-03-38, Border Security: Implications of Eliminating the Visa Waiver Program (Nov. 22, 2002).

Beginning October 1, all citizens of VWP countries must possess machine-readable passports (MRPs) to visit the United States under the VWP program. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, § 417(c), 115 Stat. 272, 355 (amending INA § 217(a)(3), 8 U.S.C. § 1187(a)(3)). Individuals without an MRP will have to apply for a visa at a U.S. consulate, further adding to the consular workload. This will particularly burden consular posts in Western Europe, Japan, and Korea. Testimony of Janice L. Jacobs, Deputy Assistant Secretary for Visa Services, Department of State, before the House Committee on Small Business, June 4, 2003.

Suspension of Transit Without Visa Programs

On August 2 the DHS and the State Department temporarily suspended two programs that allow certain international air passengers to travel through the United States for transit purposes without first obtaining a visa. Interim regulations implementing the suspension were published a few days later. 68 Fed. Reg. 46,926 (Aug. 7, 2003) (DHS rule); 68 Fed. Reg. 46,948 (Aug. 7, 2003) (State Department rule). The programs are known as the Transit Without Visa program (TWOV) and the International-to-International transit program (ITI). The agencies suspended the programs because of concerns that terrorist groups might exploit them to gain access to the United States. Id. at 49,927. The agencies hope to reinstate the programs after they evaluate how to make them safer. In the meantime, passengers who might normally use the TWOV or ITI programs must first obtain a visa.

According to the DHS, the top five countries from which TWOV passengers arrived in the United States in 2002 were Brazil, Mexico, Korea, the Philippines, and Peru. The greatest number of TWOV and ITI passengers transited the United States through airports in Los Angeles, Miami, New York, Dallas, and Houston. While the number of passengers affected by the suspension of the TWOV program is not large, the potential impact on already overwhelmed U.S. consular offices could be great. According to DHS, in 2001 a total of 1.4 million TWOV passengers made one stop in the United States and 360,000 passengers made more than one stop.

The Cumulative Impact

• The cumulative impact of all these changes: longer delays in obtaining visas and fewer people coming to America. Consider the following:
• The number of visitors to the United States has dropped 19.5% in the last two years. Testimony of John Marks, National Chair, Travel Industry Association of America, before the House Committee on Government Reform, July 10, 2003.
• The number of overall visa applications decreased from 10.4 million in 2001 to 8.3 million in 2002. Visa approvals fell from 7.5 million in 2001 to 5.7 million in 2002. Abraham McLaughlin, Foreign Visits to US Drop Sharply, Christian Science Monitor, July 30, 2003.
• Foreign attendance at U.S. English language summer classes, usually about 150,000, is down 30 percent. Id.
• Fewer international patients are coming to U.S. hospitals for treatment, including a 23 percent drop at the world-famous Mayo Clinic since 2001. Id.
• At the Consumer Electronics Association show in January in Las Vegas, 2,000 of the 16,000 foreign participants were missing because they could not get visas in time. Alfonso Chardy, Visa Delays Hurt Hospitals, Firms, Colleges, Miami Herald, Aug. 3, 2003, available at http://www.miami.com/mld/miamiherald/6445366.htm (last visited Aug. 13, 2003).

Federal officials say that protecting the nation from terrorists is more important than inconveniencing some foreign visitors. But others complain that the new security measures are damaging U.S. business and tourism. The Travel Industry Association of America has launched a campaign to increase international tourism to the United States. The campaign includes an open letter to President Bush urging a better balance of security and economic concerns. See http://www.tia.org/ (last visited Aug. 13, 2003). Finding that balance will be hard indeed.
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* This article originally appeared in the August 20, 2003 issue of the New York Law Journal. Copyright © 2003 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.