“The Visa Approval Backlog and its Impact on American Small Business”

Statement of Janice L. Jacobs
Deputy Assistant Secretary for Consular Affairs
For Visa Services
Before the Committee on House Small Business
June 4, 2003

Thank you very much Mr. Chairman and Members of the Committee. I welcome the opportunity to testify today regarding your concern about visa approval backlogs and their impact on our economy, particularly small business.

While it is easily discernable that in certain respects and for some applicants obtaining a US visa has become a lengthier process, it is also true that in virtually all of these cases delays have been the result of our efforts and those of other Federal agencies to increase the security of our borders and of our homeland. Visa work has always been about striking the proper balance between protecting US borders and facilitating legitimate travel. Our operating environment changed forever on September 11, 2001, and there is no turning back the clock. Security is and will continue to be the top priority in the processing of visas for international visitors. The State Department is committed to strengthening the visa process as a tool for protecting U.S. national security interests. We've made a number of changes since 9/11 and will continue to do so in response to the security needs of our nation and recommendations by law enforcement and national security agencies, and of course the Department of Homeland Security. At the same time, the State Department is keenly aware of the need to balance national security interests with other strategic interests such as promoting U.S. business interests, tourism, exchanges and the overall health of our economy.

Enhancing U.S. security means pushing borders out to our visa processing posts abroad. Here, I am happy to report that we've made enormous progress in identifying individuals who may present a threat to our nation through enhanced inter-agency data sharing. Since 9/11, we've added over 7.3 million new records, primarily FBI NCIC (criminal history) data, to our Consular Lookout Automated Support System (CLASS). The “TIPOFF” database on suspected or actual terrorists has incorporated into CLASS over 73,000 entries, an increase from 48,000 records on 9/11/2001.

We try to work “smart”. We have been big users of automated tools. Thanks to the work of Congress our Machine Readable Visa fees have allowed us to invest in technology. We continue to refine this technology and to increase connectivity between the Department, overseas posts, and other agencies. But technology can't do it all. We're working with other interested agencies on a rational, more targeted clearance process that is both transparent and predictable.

We're in pretty good shape to find the “bad guys” who have already been identified by other agencies and are included in our visa lookout system. Dealing with what we don't know is of course more of a challenge. For that we have the security advisory opinion process to permit other agencies to take a look at a case before we issue.

The Department of State has long used specialized clearance procedures for the review of visa applications of individuals whose proposed activities in the U.S. may have security-related or other concerns. These programs have been carried out by the State Department at the request of and in coordination with other Federal agencies. Most of the delays that you have heard about are the result of the termination of “clocked” clearances, and the large increase in security related checks, including the Visas Condor program. The Condor program requires consular officers to obtain specialized security clearances from participating security agencies for applicants of many nationalities. When the Condor program was first instituted, it was put on a “clock," a procedure traditionally used in many of the clearances. If the Department had not received derogatory information from a cooperating agency or agencies within thirty days of the date of the cable, then we could assume that other agencies had no objection to the issuance of a visa.

The Visas Condor program resulted in a significant increase in the number of cables sent to Federal agencies for review. All participating agencies found their resources strained as they took on substantially more work. In the summer of 2002, the “clock” system was ended because it was no longer reliable. Agencies were having trouble meeting the 30-day period. Instead, we now wait for an affirmative response from agencies before approving a visa. In some cases, the extra waiting period has been lengthy, but the vast majority of cases are processed in less than three weeks.

The Visas Mantis program is another specialized security screening program. It relates to technology transfer concerns, some of which can arise out of visa applications of businesspersons. Federal agencies participating in the Visas Mantis program review select applications and provide the information needed by State to determine an applicant's visa eligibility under section 212(a)(3)(A)(i)(II) of the Immigration and Nationality Act. That section provides in relevant part that:

Any alien who a consular officer or the [Secretary of Homeland Security] knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in -
(i) any activity . . . (II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information . . . . is ineligible to receive a visa.

Prior to 1998, the Department reviewed cases for controlled technology, sensitive information concerns under several nationality-based programs, e.g., CHINEX for PRC nationals, SPLEX for nationals of the Soviet Union and Eastern Europe. In 1998, the Department consolidated these nationality-based, Cold War era screening procedures into the Visas Mantis program. The Visas Mantis program is an effective tool for U.S. national security and law enforcement offices and agencies to support consular officers in screening individuals and entities that seek to gain controlled goods, technology and sensitive information in violation of US export laws.

Most other special clearance procedures are triggered by clear and objective circumstances, such as applicant nationality or CLASS name check results. However, in cases of illegal technology transfer, falling within the purview of INA Section 212(a)(3)(A)(i)(II), the Department must rely to a great extent on the observations and judgment of consular officers in the field to identify applicants of any nationality who may be subject to this ineligibility. To assist officers in this difficult and vitally important task the Department, in conjunction with Federal intelligence and national security agencies, regularly updates a list of policy objectives and critical technologies, which trigger special clearance requests.

In deciding to submit an application for review for reasons related to possible illegal technology transfer, the consular officer must first determine whether the applicant's proposed activity in the United States would involve exposure to any of fifteen sensitive technologies included in the Technology Alert List (TAL). In deciding whether one of the listed TAL activities may be in violation of US export control laws, the consular officer must review that activity in light of the following broad policy objectives related to technology transfer:

• Stem proliferation of weapons of mass destruction and missile delivery systems.
• Restrain the development of destabilizing conventional military capabilities in certain regions of the world.
• Prevent the transfer of arms and sensitive dual use items to terrorist states.
• Maintain U.S. advantages in certain militarily critical technologies.

Second, for applicants from any of the countries designated by the Department to be state sponsors of terrorism, (Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria) consular officers are instructed to assume that any visit providing exposure to any of the technologies on the Technology Alert List will conflict with the policy objectives, and therefore a Visas Mantis special clearance is mandatory under these circumstances.

Third, consular officers may send to Washington any case that appears to warrant further interagency review.
The Visas Mantis program, therefore, provides the Department and other interested agencies with an effective mechanism to screen out those individuals who seek to evade or violate our laws governing the export of goods, technology or sensitive information. This screening in turn addresses significant issues of national security and works to enhance our national security. The Visas Mantis program allows all participating agencies to provide information and raise any particular concerns they may have regarding the applicant and/or the proposed activities in the U.S.

The Department strives to balance this effort to protect our national security with our responsibility to facilitate legitimate business travel and scientific exchange. We recognize that the nation thrives on international business relations. We, therefore, have worked diligently and creatively to clear legitimate travelers subject to Mantis clearances as quickly as possible and, at the same time, to deter or prevent potentially inadmissible travelers from gaining entry to the United States.

The Visas Mantis caseload grew significantly from calendar year 2001 through 2002. At any given moment, we have from 1,500 to 2,000 Mantis cases pending in this interagency review process. The increase is attributable to increasingly vigorous interagency review of Mantis cases, and has led to an increasing number of refusals under section 212(a)(3)(A)(i)(II) of the Immigration and Nationality Act. Almost 4000 Mantis cases were sent during the first four months of this year.

In summary, the addition of the Visas Condor program and the requirement for positive responses from participating security agencies to security check requests have increased the time necessary to complete significant numbers of visa cases, including Mantis cases. Since last summer, each agency has taken measures to improve or increase resources to address the greater workload. The Bureau of Consular Affairs also worked to better improve its performance as the clearinghouse for compiling other agency responses and provide a coordinated reply to the consular officer overseas. In concert with other agencies we implemented a number of procedures to improve our use of automation and add personnel. To date these measures include:

• the addition of two permanent visa specialists and 8 contract employees,
• the “detail” of two clerical employees,
• the cross-training of other clerical staff to provide overtime support,
• the improvement of case tracking methodology, and
• the improvement of automation related to data sharing between agencies.

In general, the Bureau of Consular Affairs has noted the measures taken by all participating agencies have improved response time so that clearances on most cases raising no problems are available to consular officers within thirty (30) days or less.

The Department is also making major changes in our use of automation in light of the creation of an interagency network known as OSIS, i.e. Open Source Information System. We will spend close to one million dollars over a one-year period to eliminate telegrams from our overseas posts as the vehicle for disseminating cases to our federal partners in the security advisory opinion process. We will use real-time datashare and eliminate virtually all manual manipulation of routine data. We expect to field test the new system in the fall and deploy it worldwide in January 2004. Our objective is to push cases to intelligence and law enforcement analysts as quickly as possible and eliminate any time period that a case awaits processing by administrative staff. This development in itself could shorten processing times by approximately five business days and better track the status of specific cases.

The Department has engaged in significant outreach to our federal partners to work through problems and to improve predictability for the business and other communities about visa processing. This outreach includes regular and frequent contact with the Homeland Security Council since its inception in September 2001, and now with the Department of Homeland Security. We have also met with various private sector groups, including with representatives from U.S. business firms, the travel and tourism industry and the scientific and academic communities. Our goal is to rationalize the clearance process in light of today's national security threats and re-establish rational, transparent clearance procedures that focus on those applicants who present the highest risk. The Department also participates regularly and frequently in interagency meetings convened by the White House Office of Science and Technology Policy (OSTP).

The proposed Interagency Panel on Advanced Science and Security (IPASS) proposed by the Administration grew out of such OSTP- convened meetings. The proposed IPASS process is meant to increase the involvement of US Government scientific experts to work with intelligence, counterintelligence, and law enforcement representatives to advise the Department of science-related visa applications, beginning with students and visiting scholars. The White House (Office of Science and Technology Policy and the Homeland Security Council), the Department of Homeland Security, and the Bureau of Consular Affairs continue to convene meetings to work out details of the IPASS process. Members of the US Government scientific community participate actively in these meetings, to the extent allowed by their level, if any, of security clearance.

I would like to add a bit of perspective to the subject of visa clearances. The percentage of total visa applications (both nonimmigrant and immigrant visas) subject to a Washington agency name check is less than two percent. The percentage of total issuances subject to a Washington agency name check is less than 2.5%. This means that around 97% of all visa applicants are processed quickly, usually within 24 to 48 hours of application. In FY 2002, the Department issued a total of 6.2 million nonimmigrant and immigrant visas out of a total of 9 million that were processed. Of the 6.2 million issued, roughly 144,000 applicants underwent some type of security clearance. This was 144,000 out of a total of 9 million visas processed, or roughly 12,000 Washington agency checks per month. As you can see, the vast majority of applicants are processed quickly.

I would like to take this opportunity to also explain our visa interview policy. A number of members of Congress have noticed that we recently revised guidance to consular officers as to when they may waive the interview of a nonimmigrant visa applicant. In its October 2002 study of the visa function, the GAO noted that the Department of State had given overseas consular sections substantial discretion in determining the level of scrutiny applied to visa applications. We were generally urged to establish clear policies to better address national security concerns. This view was widely endorsed by members of Congress.

We have therefore established clear guidelines concerning the circumstances under which a consular officer may waive a visa interview. The guidelines provide that the consular officer may routinely waive the visa interview for:

There is public concern that we do not have sufficient resources overseas to carry out this standard. I would point out that most of the short-term visitors to the US are nationals of countries that participate in the Visa Waiver Program. They are unaffected by our new policy. I would also point out that in most countries of the world consular officers already have been interviewing approximately 90% of the visa applicants. We have identified some posts, primarily those in Western Europe, Japan, and Korea that will require additional resources and are making preparations to augment their resources.

The policy also permits me, as the Deputy Assistant Secretary for Visa Services, to identify a class of individuals for whom the visa interview may be waived on an exceptional basis. I assure you that no exception will be made without a reasoned threat analysis.

Requiring additional interviews is also consistent with the Department’s legislated mandate under section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 that requires the State Department to include a biometric identifier with visas that we issue by October 26, 2004. We will have to see applicants in order to collect a biometric. So, the requirement to interview more people will help posts prepare for 2004.

The Department is in direct contact with the business, scientific, academic and legal communities regarding visa policies and procedures. In various briefings, we have explained the basis for the new security-related procedures and the challenges we face in today's world of protecting U.S. security interests while facilitating the travel of those coming to the U.S. for legitimate purposes. The Department is committed to working towards a continued free flow of people, information and ideas that is the foundation of this great country. Secure borders, open doors, that is what we are working towards every day.

Thank you Mr. Chairman. This concludes my statement. I would be happy to answer any questions.