The Conflict Between Science and Security in Visa Policy: Status and Next Steps

Testimony of Janice L. Jacobs
Deputy Assistant Secretary of State for Visa Services
Before the House of Representatives Science Committee
February 25, 2004

Mr. Chairman, Members of the Committee:

Thank you for inviting me to testify before you today on the visa process and its affect on the security of the United States, our economic, scientific and technological health, and our openness to other societies. Secretary Powell has succinctly articulated our policy as "Secure Borders, Open Doors", and we at the Department of State are acutely aware of the need to satisfy both of these objectives. The US economy counts on the billions of dollars spent each year by international tourists, our universities reap the economic benefits of pre-eminence among destination countries for international students, our scientific establishment flourishes in a climate of open exchange across borders, and our entire society is accustomed to living in a free and open manner that counts upon an ease of movement across international borders. We are determined to preserve these crucial benefits to the United States even as we work to strengthen the security and integrity of the visa process.

While we are committed to facilitating the travel of legitimate visitors to the United States, we consider the protection of national security the highest priority in visa matters. 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 procedures are carried out by the State Department at the request of and in coordination with other Federal agencies. This is known as the security advisory opinion process. The purpose of the additional review is to focus on serious issues such as hostile intelligence activity, potential terrorist threats, and diversion of sensitive U.S. technology. A relatively small number of non-immigrant visa applications, less than 3% of our workload, are submitted by consular officers overseas to the Department of State for Washington-level screening by federal intelligence and law enforcement agencies

One of the highest foreign policy and national security priorities of the United States is preventing the spread of nuclear, biological, and chemical weapons, their delivery systems and advanced conventional weapons. The Visas Mantis program, designed to address technology transfer and nonproliferation concerns, is an effective tool for U.S. government agencies to prevent entry into the U.S. of foreign nationals to gain controlled goods, technology and sensitive information in violation of US export laws. Federal agencies review 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.
As part of their consular training at the National Foreign Affairs Training Center, all Foreign Service Officers assigned to consular positions receive 12-15 hours of training devoted to the processing of SAOs, including Mantis. During this training, the Non-Proliferation (NP) Bureau, which reviews Mantis cases in the Department, briefs on the proliferation threat and the importance of the Mantis screening process in helping to protect our national security.

The basic document that provides instructions to consular officers in the field on how to process Visas Mantis cases is the Technology Alert List (TAL). This is an annual cable that is disseminated to all posts at the beginning of every Fiscal Year. The cable contains two parts: the list of sensitive technologies and guidance to consular officers on how to process Mantis cases. The list contains some 200 technologies arranged in alphabetical order that nonproliferation and export control agencies have designated as sensitive for national security purposes. The TAL guidance cable describes the specific purpose of the Mantis program, instructs consular officers what to look for when reviewing an application that may result in a Mantis cable and provides details on what information to include in a cable. The guidance encourages consular officers to check with resources at post who might be able to help them decide whether or not a case should be submitted as a Mantis SAO. The cable further provides consular officers with a number of websites where they can access more in-depth information about the TAL technologies. Finally, the cable urges consular officers to use their judgment but to err on the side of caution when deciding whether or not Mantis considerations apply.

Under the current system, posts transmit Mantis SAOs by cable simultaneously to the Department, the FBI and interested agencies. We receive twice-weekly CDs from the FBI with updated clearance information on SAO cases. After the FBI namecheck unit runs the names of the subjects of SAOs through their namecheck system, they upload their responses onto a CD which the Visa Office picks up twice a week. The CD is an historical record of more than 500,000 responses the FBI has provided to us. The Visa Office uploads the information from the CD onto its own FBI Response database that it maintains as well as into the automated system known as VISTA, which is the Visa Office’s tracking system for SAOs. Unfortunately, for various technological reasons, VISTA does not always capture all of the clearance information. If analysts do not find an updated response to a case in VISTA that they know is coming due, they must look at the FBI Response database to see if, in fact, FBI has cleared the case. In some cases it can take up to a week or longer between the time FBI responds to a clearance request and when the Visa Office analyst is able to send out the clearance response to post.

The other clearing agencies generally take 15 working days to respond to SAOs but, occasionally, they notify the Visa Office when they need additional time to clear a specific case. Consequently, the Visa Office may have a clearance from the FBI but may be waiting for another clearing agency to complete a review of a specific case. The NP Bureau may ask post to obtain more information from an applicant which can take time and delay a final response to post. At other times, the Visa Office must wait to receive a report from another clearing agency that may contain derogatory information pertaining to the applicant. Waiting for highly classified reports through appropriate channels can be another reason for delay in responding to post.

The business, academic, and scientific communities have expressed concern that delays in Mantis process result in disruptions to on-going research and commercial activities. A backlog did occur in the summer of 2002 when the Department mandated a positive response to all SAO requests. That requirement, combined with the sudden spike in additional clearance requests following the attacks of September 11, overburdened the system. Since then we have worked through many of these problems, invested in people and technology, and pioneered new processes with our law enforcement colleagues that have solved many of the problems of this start-up period.

To increase efficiency, we have made a number of changes to staffing and procedures. We created a stand-alone Mantis team that now has five full-time employees who are dedicated to processing only Mantis cases. We have procedures for expediting individual cases when appropriate. When an expedited clearance is needed, we fax such requests to the FBI, which routinely responds in a timely manner. We also periodically send the FBI spreadsheets of unresolved cases on “hold” which they work through to provide us with a response. The Visa Office, with NP input, will soon begin sending to the field a quarterly Mantis report to provide additional feedback. The Bureau of Consular Affairs recently funded the travel of an officer from the NP Bureau to attend a consular conference in China, the largest source country for Mantis cables. The officer met with consular officers from all China posts and discussed in detail the purpose of the Mantis program, what consular officers should look for, how to decide whether a case should be a Mantis or not, and what information to provide in the cable.

We are also using technology to enhance efficiency and provide for better statistical reporting. The Department of State has invested one million dollars in the development of a cable-less SAO process, called the SAO Improvement Project (SAO IP) whereby requests and responses will be made electronically through the Consular Consolidated Database (CCD). The new program will eliminate formatting problems. Beta tests of the NIV portion of the SAO IP started in Riyadh and Kuwait in November. (We started the beta test of the IV portion in Naples in December.) We began shipping the software for the new SAO NIV system to the field at the end of January and we hope to bring posts on line gradually as the year progresses. The State Department uses industry standards in designing our automated systems to facilitate datashare with appropriate federal partners.

SAO IP will operate through the Open Source Information System (OSIS) which will provide interoperable data transmission. The FBI is currently working on connectivity to OSIS in order to make full use of SAO IP. In the meantime, we are still sending case specific information to the FBI via cable. Once the FBI establishes connectivity to OSIS, they will receive all SAO requests electronically directly from post. The system will be much more efficient and will eliminate the human and technological errors that have occurred under the present system that relies on cable requests and responses. Our partners are committed to electronic transmission of data over the OASIS network and are taking complementary steps to participate fully in the SAO Improvement Project.

The Department of State is addressing other factors which affect visa processing times, including the biometric visa program and staffing levels. To comply with Section 303 of the Enhanced Border Security Act, the Department began deployment of the Biometric Visa Program on September 22, 2003, at the U.S. Embassy in Brussels, Belgium, and quickly followed suit at the U.S. Consulate General in Frankfurt and Embassies in San Salvador and Guatemala City. The program is now operational at more than 60 visa-adjudicating posts and with our aggressive rollout schedule the program will be in effect at all visa-adjudicating posts by October 26 of this year.

This congressionally mandated program requires the physical presence of most applicants in order to enroll the biometric identifiers. To this end and to enhance security in the visa process, we established a new worldwide standard for visa interview policy. On August 1, 2003, new regulations were implemented which limit the waiver of personal appearance for nonimmigrant visa applicants to only a few categories of exceptions, such as diplomats, children, and the elderly.

This allowed all posts worldwide to ramp up their staffing in anticipation of the meeting the deadline. To meet additional staffing needs, the Department is establishing 168 new consular positions in FY 2004 and is requesting 123 additional positions for FY-2005.

We are working with the academic and scientific research communities to be as responsive as possible while maintaining the integrity of the process and meeting the goals of the nonproliferation program. Every spring as students begin applying for visas, we instruct all visa-adjudicating posts to make special arrangements to facilitate visa interviews for students and researchers. Some posts do not require appointments, some reserve appointment slots for students, and some assign specific days to student processing. Last October we obtained inter-agency agreement to extend the validity of the mantis clearance to one year provided that the applicant was attending the same program. Our Public Inquiries office treats all science-related visa inquiries as top priorities and has conducted extensive outreach efforts with the scientific and medical communities. We have also designated a Senior Visa Specialist as a point of contact for federal laboratories and other scientific establishments. Finally, we are establishing performance goals, whenever possible, of 15 working days from the date of receipt of the SAO by Washington agencies, after which the Visa Office sends a response to post as quickly as possible, provided clearances have been received from all clearing agencies.

The Department of State is working hand in hand with our colleagues at Homeland Security and the Justice Department to ensure that we have a visa system that properly identifies potential threats to the United States and stops them from reaching our shores. We also work every day with business and industry to see that access to our country is not impeded for those whose business we encourage and whose presence we value. We are determined to preserve the crucial benefits provided by these international visitors to the United States as we work to strengthen the security of the visa process. We want the world to know that we value our visitors and that we want them to come to the United States to enjoy the richness our country has to offer in so many areas. We want them and our own people to be safe while they are here and towards that end we are taking extra precautions, but America remains an open and welcoming country.

I am happy to answer any questions you may have.