On May 4, 2017, the U.S. Department of State issued a notice in the Federal Register evidencing that it intends to carry out President Trump's goal of "extreme vetting."
While the administration's challenge to federal courts halting of the travel ban winds its way through the courts, it has taken a different tack to achieve its goals and all is laid out clearly in the Federal Register. If the rule is finalized within the stated 30-day comment period, it will result in more rigorous vetting from a subset of nonimmigrant and immigrant visa applicants worldwide, "in order to more rigorously evaluate applicants for terrorism or other national security related visa ineligibilities." The rule states it believes that 65,000 applicants may be affected, but no detail as to how this number was arrived at is furnished. Specific personal information to be solicited will include:
- Travel history during the last 15 years, including source of funds for travel;
- Address history during the last 15 years;
- Employment history during the last 15 years;
- All passport numbers and country of issuance held by the applicant;
- Names and dates of birth for all siblings;
- Names and dates of birth for all children;
- Social media platforms and identifiers, also known as "handles" used during the last five years; and
- Phone numbers and email addresses used during the last five years.
The above information, with the exception of the last two items listed and information concerning the siblings of a visa applicant, has been solicited from visa applicants for a period going back five years on current visa applications.
The regulation further states that a consular officer may also inquire regarding a visa applicant's domestic travel history in the specific foreign country - and request supporting documentation - if it appears that the applicant may have been in an area while the area was under the operational control of a terrorist organization. These requests are not unlike what was in place after the September 11th terror attacks. The Department of State further gives discretion to consular officials to determine whether the applicant furnishes a credible explanation why an applicant may or may not adequately answer questions posed. Further, the regulations state that visas may not be denied on the basis of race, religion, ethnicity, national origin, political views, gender or sexual orientation.
It is unclear however, what "individual circumstances" present a "threat profile" that will lead a consular official to determine that an applicant warrants enhanced screening and subsequent delay in obtaining the sought after U.S. visa. While outside the USA, foreign nationals have little, if no protections under U.S. law, and the regulation issued on May 4 will serve to further attain the goal of this administration for "extreme vetting." It remains to be seen if this approach is warranted.
Our Immigration practice group will continue to monitor and report on developments in this area