August 2003 Newsletter
Department of State Personal Interviews for All Nonimmigrant Visa Applicants

By Robert D. Aronson

DEAR CLIENTS AND FRIENDS:

Effective August 1, 2003, the U.S. Department of State instituted a mandatory, worldwide policy that requires all U.S. Consulates throughout the world to conduct personal interviews of foreign nationals applying for temporary, nonimmigrant visas to the United States. This new interview requirement, which is commonly know as the PAW (standing for “Personal Appearance Waiver”) Program, appears in the State Department policy memorandum entitled “Border Security – Waiver of Personal Appearance for Nonimmigrant Applicants – Revision to the Regulation” and is intended as one additional initiative to stymie entry to this country of foreign terrorists and potential visa violators.

Under the regulations, all applicants for nonimmigrant visas have historically been required to appear before and be interviewed by Consular Officers. However, the individual Consular Posts were granted wide discretion based on local country conditions and a variety of other factors to waive the personal appearance requirement for applicants deemed to present minimal risk of violating U.S. immigration laws or harming U.S. security interests. In fact, many Posts developed liberal policies to waive interviews for putatively deserving applicants so as to channel finite resources into areas of greatest need, to control crowds at the Consulate, and to ensure desirable service standards. As a consequence, in FY 2002, roughly 850 adjudicating officers working in U.S. Consulates worldwide processed approximately 8.3 million nonimmigrant visa applications, and it is estimated that in some Posts – particularly in Western Europe – only about 20% of visa applicants were required to appear for personal interviews. In most instances, applicants would not need to schedule interviews, but could make their visa applications on-the-spot and, in most instances, receive an adjudication in a very short period of time – usually within a few days. While the general perception has been that the Consulates generally do not project a welcoming environment to foreign visa applicants, at least the Posts were given the flexibility to develop streamlined, efficient, and country-appropriate procedures aimed at quickly processing nonimmigrant visa applications.

All this has now dramatically changed under this new mandatory State Department policy memorandum, and it is estimated that roughly 90% of all nonimmigrant visa applicants will now be required to appear in person before a U.S. Consular Officer. The only exceptions to this personal interview requirement are the following:

1. If the Consular Officer concludes that the visa applicant presents no national security concerns that will require an interview; and

2. The visa applicant:

a. is a child 16 years of age or under;

b. is a person 60 years of age or older;

c. is an applicant for certain diplomatic or official visas;

d. is an applicant who is within 12 months of his/her visa expiration and had been granted the exact same visa from the Consular Post in the applicant’s country of “usual residence”, provided that the Consular Officer has no reason to suspect visa ineligibility or noncompliance with U.S. immigration laws and regulations; or

e. is an applicant for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances.

There are two (2) immediate concerns arising from this new policy. First, we are already seeing the development of substantial backlogs of varying durations at the various Consular Posts as applicants await the scheduling of their personal interviews. The various Posts are granted discretion to create their own application process for interviews – to wit: some Posts are requiring proof that the applicant is immediately eligible to receive the visa, such as requiring a copy of the approved petition; other Consular Posts have a much more informal or even call-in procedure to schedule an interview. However, it now becomes absolutely imperative for all applicants not only to schedule an interview at the Post, but also to ascertain the backlog waiting periods and the interview application requirements. While we anticipate that the various websites of the Consulates will ultimately provide this information, to date there have been substantial inaccuracies and outdated information appearing on Post websites or through alternative means. Second, while the details are being worked out, it appears that the Consular Posts will not initiate the mandatory background name check and security clearance investigation until the personal interview has been completed. In many instances, this mandatory background check will be accomplished quickly – normally within a matter of a few days. However, there are three (3) primary classes of foreign nationals who can expect to undergo rather extensive, time-consuming security clearance checks: 1) males from certain designated countries located in the Middle East; 2) foreign nationals who are engaged in certain technology-related endeavors; and 3) foreign nationals who have engaged in a broad range of activities that have been flagged in the various computer-based databases maintained by the FBI and other agencies of the U.S. government.

In addition, there is the growing fear that this personal interview requirement will siphon off finite resources within Consular Posts so as to produce delays in other Consular functions, running from the scheduling of immigrant visa (“green card”) interviews to U.S. citizen services. This policy raises very substantial concerns among many interested parties, including the business community, educational institutions, and the tourist industry. It is predicted that waiting periods for personal interviews could grow to the 6-9 month range, which would present an immeasurable burden on normal activities. To date, the Department of State has not announced the availability of any additional resources to address this spike in workload at its Consular Posts. It is, in fact, quite open to question whether an overburdened Consular staff faced with a massive new influx in the number of applicants will conduct anything more than a cursory, shallow interview of minimal benefit to U.S. national security interests. As recently as this past December, the Office of Inspector General of the U.S. Department of State recommended certain security enhancements in the nonimmigrant visa issuance process that specifically preserved rather than eliminated the discretion of individual Consular Posts to develop personal appearance interview policies based on local conditions and experience.

There is absolutely no question but that visa issuance policy and procedures today are molded heavily by national security concerns. To this end, the PAW Program represents one further post-9/11 initiative to tighten up visa issuance policies, and now constitutes one additional piece of a rapidly expanding mosaic of security-driven initiatives that include the following measures:

1. announcement of the USA-VISIT Program that will implement mandatory entry-exit registration and tracking procedures for all arriving nonimmigrants;
2. expanded use of tamper-resistant documentation and biometrics;
3. development of the SEVIS Program that creates an additional security-driven arrangement governing applicants for J-1, M-1, and F-1 visas, as well as dependents of these categories;
4. creation of mandatory background security name check requirements for all nonimmigrant visa applicants;
5. requirement of secure, machine-readable passports for foreign nationals entering under the Visa Waiver Program;
6. elimination of visa exemption eligibility for transiting visitors;
7. requirement that Canadian landed immigrants from Commonwealth countries now need to apply for visas rather than entering under visa exempt provisions;
8. announced although heretofore unimplemented policy creating a default 30-day period of status for arriving B Visitors;
9. immeasurably tightened security arrangements and document verification procedures along the Northern border;
10. revisions in the visa application questionnaire (DS-156) and the introduction of two additional visa application forms so as to provide more inclusive information for security background purposes;
11. automatic cancellation of visa status for short-term visitors who apply for and receive denials of their visa applications at U.S. Consulates in Canada and/or Mexico; and
12. new policies for spot-checking issued nonimmigrant visas.
    

In a sense, we are seeing in the PAW Program and other security-driven measures a conflict between globalization, which at its core requires a free flow of goods, services, information, and people, and a belief that the visa issuance process and policies are still riddled with holes that compromise U.S. security interests. Ultimately, technology, enhanced resources, an amelioration of international tensions, and other measures will hopefully provide for a synthesis between U.S. security concerns and our country’s participation in the globalized world. But in its initial phases, applicants for nonimmigrant visas can expect long and growing waits both to schedule an interview at the Consulate and then to await the outcome of the security clearance process, and they will then further face ongoing scrutiny and monitoring aimed at ensuring compliance with U.S. immigration requirements.

As always, we encourage our clients to consult with us when considering trips abroad. However, owing to the decentralized nature of individual Consular practice (after all, there are over 200 Consular Posts worldwide), individual applicants need to take primary, lead responsibility in determining the existing backlog waits and appearance application procedures in a given Post at the time of actually making application for a nonimmigrant visa.

As always, we welcome your thoughts and comments and hope that this information is both useful and timely.

Cordially,

ROBERT D. ARONSON
August 2003

This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Aronson & Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences.

Aronson & Associates, P.A.
1221 Nicollet Mall Suite 506
Minneapolis, MN 55403
Tel: 612-339-0517
Fax: 612-349-6059
info@aronsonimmigration.com

Legal Disclaimer | Privacy Policy