What is the problem?
A significant number of foreign national employees of companies in the United States applying for nonimmigrant visas at U.S. consulates overseas are experiencing delays in the issuance of these visas, with the result that they are finding themselves stuck abroad and unable to return to the United States for varying and often lengthy periods of time.
What is causing these delays?
Visa application delays can occur for a number of reasons, including simple errors in the application forms, technological and administrative problems at the consulate, and difficulties in retrieving petition information from the U.S. Citizenship and Immigration Services (USCIS) online Petition Information Management Service (PIMS) database. Recently, some consulates have been issuing visa applicants a letter requesting a great deal of additional information with respect to the underlying petition, and placing the visa application on hold until a response is received. Some of the information requested is directly relevant to their position and the employer, but some is not. Another common cause of a visa application delay is the fact that the consulate finds it necessary to obtain a Security Advisory Opinion (SAO) concerning the visa applicant from the U.S. Department of State (DOS) in Washington, D.C.
What is an SAO?
Once a consular officer makes a determination that a visa applicant may be ineligible to enter the United States based on a security-related concern, the officer requests an SAO from the Coordination Division of the DOS. Upon request from a U.S. consulate, the DOS will initiate the process of requesting clearances from various government agencies, which may include the FBI, CIA, Drug Enforcement Agency, Department of Commerce, Office of Foreign Asset Control, Interpol, the national criminal and law enforcement databases, the DOS Bureau of Non-Proliferation, and others. The consulate cannot issue a visa until receiving a response from the DOS.
United States consulates have for some months been in a heightened state of security consciousness and have been requesting SAOs with considerable frequency (the DOS processed more than 260,000 SAOs in 2008, and the number last year was undoubtedly higher). We are therefore seeing a very high number of visa application delays of this type at the moment, and the Christmas Day attempt to detonate a bomb on a passenger plane bound for the United States will undoubtedly cause consulates to be even more vigilant than usual.
Are there different types of SAOs?
Yes. There are various types of SAOs, the most common being (1) Condor SAOs, which are based on national security concerns, including a concern that the applicant may intend to engage in terrorist activity; (2) Mantis SAOs, which are based on the applicant’s suspected use of sensitive technology with a potential military application and the unlawful exportation of that technology; and (3) Donkey and National Crime Information Center (NCIC) SAOs, which are based on name matches or “hits” occurring in various databases.
Factors leading to the need for a Condor SAO are usually the applicant’s country of birth, citizenship, or permanent residency, especially if that country is known as a state sponsor of terrorism (these include Cuba, Iran, North Korea, and Sudan). The specific criteria for a Condor SAO are classified; applicants typically subjected to such an SAO are those born in, or residents of, one of the 26 predominantly Muslim countries. Although Condor SAOs are overwhelmingly required for male visa applicants, women may also be subject to them.
Mantis SAOs are usually required for visa applicants who work in areas that appear on the “Critical Fields List” of the DOS’s Technology Alert List (TAL). The TAL focuses on fields that involve “dual use” applications that have potential military applications. The TAL is a comprehensive list that includes almost every skill involving chemistry, immunology, biomedical sciences, architecture, engineering, and urban design. It is common for researchers in a number of technological fields to be subject to this clearance. Foreign nationals of China, India, Russia, Israel, Pakistan, and other predominantly Muslim countries seem to be heavily targeted for Mantis SAOs.
Donkey SAOs are based on a name match in the Consular Lookout and Support System (CLASS) involving a noncriminal issue, generally occurring simply because someone has a common name. An NCIC SAO is also based on a name match, but involves potential criminal issues, including U.S. convictions and foreign warrants.
Please note that SAOs, once issued, are valid for certain periods of time (some of these periods were recently extended). If a visa expires before the end of the validity period of an SAO, a new visa may be applied for without the need to obtain a new SAO.
What are the consulates telling visa applicants?
At the conclusion of the face-to-face visa application interview and the fingerprinting of the applicant at the consulate, the consular officer will usually tell the applicant that his or her application requires further “administrative processing” under Section 221(g) of the Immigration and Nationality Act (INA). INA Section 221(g) is a generic provision of the law governing suspected visa ineligibility. This information is sometimes contained in a printed notice that is given to the applicant. The notices used for this purpose vary from consulate to consulate, and some applicants are notified by email that 221(g) administrative processing is required. If an SAO is being requested, the consulate will not notify the applicant of the fact or divulge to the applicant any specific information concerning the need for further administrative processing, and will certainly not reveal which type of SAO is being requested. The consulate may or may not retain the applicant’s passport at this time.
Occasionally, applicants are requested to provide further written information, by mail or email, providing an explanation of the applicant’s intended activities in the United States, as well as evidence of the petitioner’s business operations in this country. Some consulates maintain online systems that may be accessed by applicants to see the status of their applications.
Once the SAO has been received and the applicant deemed eligible for a visa, the consulate will notify the applicant of this fact, and, if the applicant's passport was not retained, will ask him or her to return to have the visa issued.
How long are these delays lasting?
Condor SAOs are usually processed within three to six weeks. Mantis SAOs are usually processed within six to eight weeks. Donkey SAOs are usually processed within two to three months, and NCIC SAOs are usually processed within a few days.
Can the visa application be expedited?
Once an SAO has been requested, there is no possibility of expediting the processing of this SAO by the DOS. Requests for expedited processing are invariably ignored by consulates; in any case, the consulates play no part in SAO processing.
Can the visa applicant return to the United States while the application is pending?
Generally, the visa applicant must remain overseas until he or she receives a visa that will enable him or her to re-enter the United States. If the applicant’s passport was not retained and if he or she is an applicant for adjustment of status to permanent resident and holds a valid Advance Parole document, this may be used to re-enter the United States, provided it is unexpired and was issued before the employee left the United States. In addition, if the applicant holds a valid and unexpired visa that was not canceled by the consulate when it received the visa application, this may be used to return to the United States, provided the visa holder complies with all the terms of this visa. If a visa applicant is contemplating a departure while a visa application is pending during additional processing, legal counsel should be consulted.
Can legal counsel help?
With respect to a situation in which a visa applicant has been issued a letter requesting additional information, legal counsel can be helpful in determining what requests actually pertain to the application and assisting the employer and employee in gathering responsive documentation.
With respect to an SAO request, legal counsel can contact the relevant consulate and notify the staff there of their representation of the applicant and the applicant's company, but this is very unlikely to produce any positive result. We have found, however, that consulates are less likely to take liberties with visa applicants or to treat them unfairly if they are aware that they have legal representation. The participation of legal counsel in this process also often has a reassuring and positive effect on the applicant’s morale. If the SAO delay extends beyond 90 days, legal counsel may contact the DOS to inquire into the status of the application.
Can anything be done to avoid these delays?
Unfortunately, the only certain way of avoiding a visa application delay is not to apply for a visa. Although an applicant’s ability to describe clearly and convincingly the reason why he or she wishes to enter the United States is invariably effective, the submission at the time of the application of information designed to show that the applicant should not be subject to an SAO will almost certainly not preempt the request for an SAO. Effective planning will mitigate the effects of a visa application delay, however, and measures such as arranging for the visa applicant to work from an office of your company overseas while his or her visa application is pending are often very helpful.
Do these delays mean that our company is under a cloud of suspicion?
No. Employees of a large number and variety of companies are experiencing visa application delays. It appears that the visa applications of employees of IT consulting companies are receiving special scrutiny, however.
Are some consulates worse than others?
We are seeing visa application delays occur with the highest frequency at United States consulates in India, followed by consulates in the People’s Republic of China. This may be a function of the simple fact that the largest number of visa applications occur at consulates in these countries, however. United States consulates in Canada that accept applications from third-country nationals are also imposing delays with increasing frequency.
For more information, or if you have questions regarding the issues discussed in this Immigration Alert, please contact any of the following attorneys:
A. James Vázquez-Azpiri