The bill’s purpose, as reported last week in a section-by-section breakdown is to enhance security procedures for the processing of both immigrant and nonimmigrant visas. The bill will impact how both immigrant and nonimmigrant visas are processed, and we discuss below how this may affect those who apply for either visa at a U.S. consulate or embassy abroad, or those who submit a petition or application to the Department of Homeland Security (DHS) United States Citizenship and Immigration Services (USCIS).
Petition and Application Processing, Section 2:
- All petitions and applications filed with DHS or at a U.S. consulate with a consular officer must contain all required signatures.
- For immigrant visa applications, the application must be signed in front of the consular officer.
- All documentation, regardless of whether it is in support of an immigrant or nonimmigrant visa application, must be translated.
Previously, immigrant visa applications (Form DS-260) were not signed in front of the consular officer, but rather submitted online. This should not pose a burden to the applicant at the time of the interview. With the requirement of translated documents, previously it was not required at the U.S. consulate if the language was native to that particular country. For example, applicants applying to enter the United States in L-1B status at the U.S. consulate are required to show a professional degree, but that degree need not be translated if the language is the native language of the U.S. consulate’s location.
Background Checks and Other Screening Requirements, Section 211B:
- General Background Check: Background checks/screening required for all nonimmigrant and immigrant processing, for both principal applicants as well as dependents.
- Security Advisory Opinion: The following categories of people are required to have a security advisory opinion:
- Nationals of Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen; or
- Any other country the Secretary deems appropriate.
- Exceptions are given to certain international travel; moreover, the consular officer can determine whether a security advisory opinion is needed.
- Social Media Activity: The background check shall include a search of public information on the internet of the applicant, including social media activity.
- DNA Testing: DNA testing will be required for petitions and applications based upon a biological relationship. The genetic testing, at the expense of the applicant(s), must be obtained proving the biological relationship, and must be submitted at the time of the application.
- Interviews: DHS must conduct an in-person interview with every person seeking “any benefit” under the INA, with the exception of a work authorization. The interview requirement may be waived for those under 10 years of age.
- General background checks have been conducted in the past of every person.
- The requirement of a security advisory opinion of certain nationals could delay processing, and thus it would be recommended that applicants from the named countries allot for extra time to apply for either an immigrant or nonimmigrant visa stamp. In addition, it must be noted that the need for a security advisory opinion is not limited only to the listed countries. The Secretary has the discretion to add to the list of countries, and the consular officer may determine at the time of the interview whether an individual will need the security advisory opinion.
- A search of an applicant’s social media activity is currently limited to public information. It would be wise for applicants to be mindful of things posted on the internet.
- The requirement for a DNA test to prove biological relationship will likely be a burden, both financially and in terms of time, especially if a principal applicant has a number of dependent applicants.
- The interview requirement would be an addition to the requirement already applied to one who is applying for an immigrant visa abroad. There are no interview requirements currently for those who submit an adjustment of status application in the United States, though DHS reserves the right to request an interview.
Burden of Proof, Section 5:
Section 5 of the bill amends section 291 of the INA concerning the burden of proof upon a petitioner or applicant for an immigration benefit. The proposed amendment would change the current standard, “to the satisfaction of the consular officer” to the standard that each individual prove eligibility or admissibility by “clear and convincing” evidence.
The higher burden of proof gives the consular officer or the reviewing USCIS officer broader discretion when adjudicating an application or petition. For beneficiaries, this means that having the most documentary evidence is pertinent to the success of the application/petition.
GT will monitor the House Judiciary Committee’s consideration of this legislation and will provide updates here in relation to the bill’s progress in the House of Representatives. It should also be noted that the House Homeland Security Committee will be marking up H.R. 5253, the “Strong Visa Integrity Secures America Act” on June 8, 2016.