In a diplomatic cable dated March 17, 2017, the U.S. Department of State issued orders to American consulates and embassies abroad instructing them to increase their vigilance in reviewing visa applications and to develop a “list of criteria identifying sets of post applicant populations warranting increased scrutiny” in order to safeguard national security. These orders were issued a few days after President Trump’s executive order (EO) banning foreign nationals from certain designated countries was partially blocked by federal judges in Hawaii and Maryland. The cable instructs embassies to execute parts of the EO not blocked by the courts, mandating enhanced “screening and vetting of applications for visas and all other immigration benefits, so as to increase the safety and security of the American people. These additional protocols and procedures should focus on: (a) preventing the entry into the United States of foreign nationals who may aid, support, or commit violent, criminal, or terrorist acts; and (b) ensuring the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits."

Consular officers are instructed to increase their vigilance in their screening of visa applicants for both “potential security and non-security related ineligibilities.” Officers are encouraged to deny visa applicants who may present security concerns or who may not abide by visa requirements. The additional screening criteria will be developed by interagency working groups to identify the “population sets” warranting additional scrutiny. These measures are part of “ongoing efforts to refine and improve visa applicant vetting” and supplement the initiatives in the EO, and may become increasingly stringent if permitted by the ongoing litigation over the president’s executive orders. In particular, applicants who “may have ties to ISIS or other terrorist organizations or [have] ever been present in an ISIS-controlled territory” are to be flagged for additional screening, and there is a “[m]andatory social media check for applicants present in a territory at the time it was controlled by ISIS.” After the social media review, the case is to be sent for a Security Advisory Opinion (SAO) by Department of State headquarters in Washington, D.C. Iraqi nationals, although excluded from the latest version of the presidential EO, are also singled out for additional screening.

Employers Can Expect Increased Visa Delays and Denials—Both in General and for Targeted Populations

The criteria identifying the “population sets” subject to additional scrutiny have not yet been developed. However, the purpose of the guidance is to counter the terrorist threat—in particular ISIS—and to give effect to the executive orders partially blocked by the courts, which first banned entry into the United States for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and then banned entry for the same nationals minus those of Iraq. Therefore, employers may find that employees from Middle-Eastern and African countries subject to the president’s EO, or any individual who has been to territories where ISIS is or has been present, may be subject to the additional screening procedures.

In addition, delays in visa issuance, increases in extended “administrative processing,” and increases in visa denials may also be expected—especially at consulates and embassies that commonly process applications from such targeted applicant populations. Note that the consulates have been instructed to limit each consular officer to performing 120 visa interviews a day, which may also increase visa application backlogs in general. The Department of State would not comment on the diplomatic cables except to say that “visitor screening and vetting procedures are designed to effectively identify individuals who could pose a threat to the United States."

Employers may want to plan for additional time when applying for visas and visa renewals for foreign national employees at consular posts. Note that even individuals benefiting from the Visa Waiver Program (VWP), which permits entry to the U.S. without a visa for nationals of certain countries, may be put into secondary inspection or denied boarding onto U.S. flights or entry into the U.S. if they have visited countries where terrorists may have been deemed active. Recently there have been reports of travelers on the VWP being denied entry due to previous travel to countries of concern. In 2016, VWP availability had already been tightened for individuals who had traveled to certain designated countries. Employers may want to note that foreign national employees who already have temporary work visas and may be subject to the EO or the new consular screening guidance described above may not want to travel internationally, if possible.

Visa denials may also increase for targeted individuals and more generally, as the new administration continues to emphasize increased vetting of visa applications. The litigation over the EO is expected to continue—possibly to the Supreme Court—and if the EO is upheld, even more visa scrutiny may be forthcoming.