Visas for Visiting Scientists and Students:
Current Situation (January 2003)
By Wendy D. White and Lois
Peterson
Board on International Scientific Organizations,
National Academies, Washington, DC
Updated 18 March 2003
Introduction
In the last several months, U.S. scientists, engineers, and
health researchers have become increasingly frustrated with delays in visa
processing for their international colleagues. Many of our international
visitors are unaware that their visa application may now take several weeks,
if not months, to process, even if previously they received visas to visit
the United States within days. While we work with those who manage the visa
process to try to improve this situation, it is important for the scientific
community to better understand what the problems are and what they can do to
help alleviate them. This article informs readers of recent changes in visa
issuance policies and in the implementation of already existing policies.
It also provides information on what international visitors should know when
applying for a visa, as well as where to find accurate information.
Background
There are growing concerns about the issuance of visas to
foreign students and scholars and to scientists wishing to attend meetings
or work on collaborative projects in the United States. The number of
scientists and engineers who are facing visa delays and denials seems to be
growing and they and their U.S. colleagues are turning to relevant
professional societies and to the National Academies for assistance. The
National Academies have gone on record many times in support of scientific
openness. Indeed on 13 December 2002, the Presidents of the National
Academy of Sciences (NAS), the National Academy of Engineering, and the
Institute of Medicine issued a strong statement regarding the potentially
negative impact visa restrictions could have on the scientific enterprise.
That statement can be found at:
http://www4.nationalacademies.org/news.nsf/isbn/s12132002?OpenDocument.
The authors of this article work for the Board on
International Scientific Organizations (BISO) at the National Academies.
Our office examines issues related to the conduct of science and evaluates
opportunities for and barriers to international collaboration in scientific
research. It also represents the NAS as the U.S. national member of the
International Council for Science (ICSU).
ICSU and the National Academies subscribe to the principle of the
universality of science and it is thus our responsibility to assure that
this principle is being upheld to the maximum extent possible. This
principle requires freedom of association, movement, and communication as
well as access to data and information in connection with international
scientific activities, without discrimination on the basis of such factors
as citizenship, religion, creed, political stance, ethnic origin, race,
color, language, age, or sex. ICSU does, however, recognize and respect the
independence of the internal science policies of its National Scientific
Members and also that governments may regulate and control their borders.
ICSU guidelines alert scientists to the fact that that obtaining visas can
involve a lengthy and time-consuming process.
So, while we all attempt to promote free circulation of
scientists, those of us arranging visits or planning conferences have to be
aware of and anticipate visa-related problems. As we will describe below,
even more lead-time is needed now. It is the scientists' responsibility to
do everything necessary to obtain travel documents in a timely and thorough
manner. (For more information on ICSU’s activities in this area, see
http://www.icsu.org/about/structure/Committees/SCFCS.html).
The Basics
Non-immigrant visas
A visa is a stamp in a passport that authorizes one to come to
the United States. There are two main categories of visas: non-immigrant
and immigrant. For the most part, we are concerned with non-immigrant
visas, which allow foreign nationals to enter the United States on a
temporary basis, for a specific purpose. Once in the country, visitors are
restricted to the activity for which their visa was issued.
Short-term visitors most often apply for B-1 Visas for
business or B-2 Visas for pleasure (e.g. tourism, visit friends or
relatives). Scientists attending conferences in the United States usually
need to apply for a B visa. There are also longer-term visas for
non-immigrants. These include the F-1 Visa for full-time students at
an accredited college or university and the M-1 Visa (Vocational
Student) for students who want to pursue non-academic programs in an
established institution. The J-1 Visa is for people participating in
exchange programs, such as visiting scholars and exchange students. There
is also the H-1B Visa, which is for temporary workers in specialty
occupations that require the theoretical and practical application of a body
of highly specialized knowledge. Applicants for this visa are not required
to meet the requirements of INA Section 214(b), discussed below.
Holders of long-term visas, such as F, M, J, and H-1B, must be
aware that they may need a re-entry visa, should they leave the United
States. They should speak to their sponsoring institution’s international
exchange office for information about what they will need to re-enter the
country before leaving the United States.
The difference between a "visa" and "status"
It is easy to get confused about the difference between
"visas" and "status". The visa stamp in the passport is what allows the
applicant to board a plane and knock on our doors; it does not guarantee
that a person will be permitted to enter the country. The immigration
officer at the port of entry confers that permission or "status". The real
entry permit is the Form I-94 (Arrival/Departure Record), which is
attached to the passport at the port of entry. This card indicates the
category of admission and provides the person valid legal status to remain
in the U.S. for a particular length of time. Those arriving on student
visas are given a "duration of status" (D/S) stamp rather than a specific
expiration date. The duration is usually defined as the period of study, as
indicated on other forms, plus a 60-day grace period.
Visa validity is based on
reciprocity with the applicant's country of nationality and may be valid in
the range from one month to 10 years, depending on country of nationality of
the applicant and their reasons for travel. The visa allows people to
present themselves for entry at any time during the validity of the visa,
for the purpose in accordance with the type of visa (i.e. business, tourist,
study, work, etc.). Usually, a person with a 10-year visa cannot
stay in the country for 10 years; rather, upon entry, the immigration
officer will normally provide a visitor a six-month "status". If the person
wishes to stay longer in the United States, he or she has to file for an
extension of status with the Immigration and Naturalization Service. Anyone
staying in this country beyond the period of time for which permission is
granted on the I-94 card violates the law and is in the country illegally.
As of October 1996, any such person must return to his or her home country
to re-apply for a nonimmigrant visa. By law, (INA Section 222(g)), the visa
stamp in the passport is automatically void as soon as that person becomes
"illegal" or falls out of status. A student with a "duration of status"
stamp can be found guilty of overstaying only if the INS or an Immigration
Judge has made that determination.
Visa Waiver Program (VWP)
Not everyone coming to the United States needs a visa. The
"visa waiver program" enables travelers from certain countries to visit for
up to 90 days without a visa. The countries eligible for this program
change from time to time but the current list is available on the Department
of State website (http://travel.state.gov/vwp.html). (Currently the list
includes Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland,
France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg,
Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino,
Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom and
Uruguay.)
What is Happening Now?
Since the terrorist attacks on 9/11/2001, the U.S. government
has sought ways to make our borders more secure and to improve the process
by which visas are granted. Unfortunately, the
changes in processing and implementation appear, to those unfamiliar with
them, to change often and with little warning. An already-beleaguered
consular service was at first not prepared to deal with the new situation
efficiently. Applicants are confused by what they think are new
procedures, possibly because they are subject to them for the first time.
Those used to allowing only a few weeks to receive a visa are finding
instead that the process is taking months.
Some of the efforts by our government to monitor the flow of
international visitors in the name of national security are having
unintended consequences for American science, engineering, and medicine.
Stories told to us reveal that ongoing research collaborations have been
hampered; that outstanding young scientists, engineers, and health
researchers have been prevented from or delayed in entering this country;
and that important international conferences have been canceled or
negatively impacted. There is some concern that future international
meetings will be moved out of the United States unless we can somehow
"guarantee" that the ICSU principle of the universality of science will be
upheld. (Even though, as shown above, ICSU recognizes that it is "entirely
legitimate that governments regulate and control who enters their
countries.”)
What is NOT new?
Presumption of immigration
The Immigration and Nationality Act, or INA, was created in
1952, and brought into one location many statutes that governed immigration
law. Although it has been amended many times, the INA remains the basic
body for immigration law and guides most of today's policies and
procedures. Some of the restrictions we see on the issuance of visas today
have been around for 50 years.
Immigration law delegates the responsibility for issuance or
refusal of visas to Department of State consular officers overseas. Most
visitor visas that are denied are done so under Section 214(b) of the
INA, which states:
Every alien shall be presumed to
be an immigrant until he establishes to the satisfaction of the consular
officer, at the time of application for admission, that he is entitled to a
nonimmigrant status...
A 214(b) denial means that, in the opinion of the consular
officer, the applicant was unable to provide enough evidence that he or she
was not intending to illegally immigrate to the United States. The burden
of proof lies with the applicants, who must demonstrate that they have
reasons to return to their country of residence. This proof of "strong
or binding ties" can be a house, a job, a family, a bank account, a
scholarship, or any other indicator that compels the applicant to leave the
United States. Decisions to deny visas can be overturned as long as the
applicant can provide new evidence of their ties or demonstrate how their
circumstances have changed since the time of the original application. (As
mentioned above, applicants for H1-B visas are exempt from this
requirement.)
Security Measures
The denial of visas on security grounds is also not new. One
set of visa security regulations, known as Visas mantis, has been on
the books for many years. The security objectives here are to stem
the 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, and maintain U.S.
advantages in certain militarily critical technologies. Visas mantis
security checks are conducted through the Consular Affairs Bureau in
Washington, D.C. Those subject to visas mantis are applicants bearing
passports of states designated as State Sponsors of Terrorism; foreign
nationals affiliated with certain entities in a region subject to the
Nonproliferation Export Control regulations; and those whose field of
expertise or study may be "sensitive". The Technology Alert List helps
consular officers recognize sensitive fields. The determination of whether
someone’s field of study or expertise falls within those described on the
Technology Alert List is left to the consular officer reviewing the
application. If he or she determines that it does, visas mantis requires
that a security check take place.
Visa Lookout
Accountability
Whenever a United States consular officer issues a visa for
travel to the United States, that official must certify that a check of the
Consular Lookout and Support System (CLASS) database has been made and that
here is no basis in the system for the exclusion of the alien. CLASS
maintains information about aliens excludable under the Immigration and
Nationality Act. The 1994 Foreign Relations Authorization Act provided a
requirement that the Secretary of State convene an accountability review
board if a consular officer fails to follow this procedure and issues a visa
to an excludable alien who subsequently commits terrorist actions in the
United States. Visa issuance decisions made by Consular officers who follow
the correct procedures are non-reviewable. U.S. consular officers overseas
must follow correct procedure and be in compliance with the legal and
national security requirements of their jobs. Failure to properly process a
visa applicant’s name through the CLASS database could result in an
accountability review and additional serious consequences.
So What IS New or Different?
New Security Checks and Procedures
Visas Condor, started in January 2002, is a program
that basically looks for terrorists through a process that involves checking
a visa applicant’s name against various U.S. government databases. A given
applicant's identification information is checked against as many as 20 U.S.
security databases. The primary database is CLASS (Consular Lookout and
Support System). Before 9/11/2001, the six million or so records in CLASS
were entered because of previous visa denials or other immigration law
infractions. After 9/11, another six million or so records were added from
FBI files.
Applicants may also be required to fill out additional forms
and be interviewed, fingerprinted, and subjected to additional identifying
measures and background checks. Those affected by visas condor are
predominantly Muslim men between the ages of 16 and 45 who hail from some 26
(mostly Islamic) countries, but it can apply to others as well.
Also new is that Visas Mantis and Visas Condor security checks
require explicit approval from Washington for each applicant. The agencies
that need to provide clearance are determined by the Bureau of Consular
Affairs but include the CIA and the FBI, and can include any other agency
with a potential interest in the applicant. There used to be a procedure,
called "visas eagle mantis", by which certain applications could be cleared
after a certain period of time, even without explicit approval from every
agency. During the summer of 2002, this "no response" system was suspended
and all applicants had to be positively cleared by all agencies involved
(visas donkey mantis). This led to the backlogs and vast time delays we
have been seeing in recent months. We have learned that the Bureau of
Consular Affairs is working to reinstate the "no-response" agreements as
other government agencies became confident of their ability to conduct the
security check within a specified period of time. Not all agencies have
been able to agree to this as yet. The State Department’s goal is for the
visas condor check to eventually take less then ten business days.
Student and Exchange Visitor Information System
There has been much in the news about the new Student and
Exchange Visitor Information System (SEVIS). This program is an electronic
system aimed at keeping better track of foreign students once they have
received visas to study in the United States. The Immigration and
Naturalization Service is responsible for SEVIS, although the program was
developed in cooperation with the Departments of State and Education. The
timetable for its implementation and for colleges and universities to come
into compliance with its regulations was stepped up following the events of
9/11. SEVIS will collect and report data on international student or
exchange visitor status changes, such as change in program of study. It
will also provide system alerts, event notifications, and basic reports to
the end-user schools, programs, and INS field offices. Schools wishing to
accept foreign students were required to register with SEVIS by 30 January
2003.
Interagency Panel for Advanced Science and Security (IPASS)
As of the writing of this article, the executive order to
create IPASS had not yet been signed. IPASS is a response to Presidential
Decision Directive, "Combating Terrorism through Immigration Policies,"
(October 2001), which directed federal agencies to develop student
immigration policies through which the country "prohibits certain students
from receiving education and training in sensitive areas." The White
House’s Office of Science and Technology Policy (OSTP) has been working with
the White House’s Homeland Security Council and others to develop and
implement IPASS in a way that does not create further bottlenecks.
Department of Homeland Security
The new Department of Homeland Security (DHS) has been
given responsibility for the policy guidance and regulation governing visa
issuance. The Secretary for Homeland Security will determine who can and
who cannot enter the United States. Where there are foreign policy
considerations the Department of State will continue to exercise authority.
Consular officers will remain under the auspices of the Department of
State. As the DHS is just now being formed, it is difficult to determine
what impact these changes will have on the visa process.
Quantifying the Problem
According to
Secretary Colin L. Powell, in testimony before the House
Select Committee on Homeland Security, on July 11, 2002, the State
Department adjudicated over 10 million non-immigrant visa applications in
fiscal year 2001. They issued 7.5 million visas. In fiscal year 2002,
there were 7.9 million applications, of which 5.7 million were approved. In
calendar year 2002, consular affairs conducted 50,000 visas condor and about
14,000 visas mantis checks. Consular affairs officers have stated that such
checks represent about a three-fold increase in the number of cases referred
to Washington D.C.
What are the National Academies doing about the problem?
Since its founding, the NAS has openly supported the principle
of the universality of science and believes firmly in the scientist's rights
of freedom of communication and movement. As the national member of ICSU,
we are obligated to uphold this principle on behalf of the scientific
community. Our office has developed outreach mechanisms to keep the
scientific community better informed about the changing situations with
visas. We have a website (national-academies.org/visas) that provides
accurate information and links to current policies and procedures. The
website includes a survey aimed at collecting information from scientists
about their experiences with the visa process. The information collected by
the survey will help us establish a database of cases and develop good
statistical reports that provide better information on the nature and scope
of the problem. Our office also maintains contacts with the State
Department, INS, OSTP, and other agencies dealing with visa issues. This
assures that we are working with the most current and accurate information
and keeps the voice of the scientific community at the policy table.
This website, although still in a test stage, is available now
and we encourage you and your colleagues to fill in the survey. Once we are
satisfied that the survey instrument itself is clear and consistent, we will
schedule a series of briefings with science societies. We will also use the
information to determine effective intervention tactics.
What Can YOU do about the Problem?
The scientific community needs to stay informed and be aware
of new visa policies. Make sure that your colleagues overseas are as well
prepared as possible when applying for their visas. Give them accurate
information and tell them about our website. Encourage them to consult the
websites of the Department of State and of their local consulate. Consult
your institutions international visitors' office. DO NOT believe everything
you hear. This is an emotionally charged area and there are many rumors and
urban myths floating around. These serve only to make the situation worse,
especially by jeopardizing our working relationships with consular officers
and others who are making efforts to remedy the situation.
Be prepared for delays in the processing of visas and for the
possible need to provide more and more information to consular officers. If
you are planning a scientific meeting in the United States, allow plenty of
lead-time. This means you may have to inform participants that their
abstracts or papers have been accepted far earlier than you used to. You
may need to issue invitations to speakers. In information that goes out
about your meeting, remind participants that they should allow at least
three months for their visa applications to be processed.
Use our website. Give us your suggestions on how we can make
the website and the survey more useful to you. Invite us to come and talk
to your organization.
Finally, realize that scientists have no guaranteed right to
receive visas. Immigration and security concerns are real and they won't go
away just because, as a community, we disagree with the way these concerns
are being manifested. Work with the system as best you can but bring the
most egregious cases to our attention through the survey. Only with
accurate and reliable data about the serious consequences of some of these
new regulations can we expect to change the situation.
Conclusion
As frustrating as we may find these efforts to increase
national security through the visa issuance process, the situation in not
likely to change in the near term. Still, the scientific community must
remain vigilant in its efforts to assure that new policies and procedures
regarding immigration actually increase security rather than bureaucracy.
It seems far more likely that improvements in the way we collect and
coordinate intelligence data, increased application of new technologies to
verify identities or produce more secure travel documents, or adequate
funding to hire and train consular officers are all better means to increase
national security. There are many people of goodwill both within and
outside of the government who are trying to bring reasonable solutions to
the problems. We should definitely be prepared to examine this issue again
in mid-2003, especially as the DHS comes into play, to see if the situation
shows any signs of improving.
_________________________________________
The authors are the Director and Assistant Director of the
Board on International Scientific Organizations of the National Academies.
BISO examines issues related to the conduct of science and evaluates
opportunities for and barriers to international collaboration in scientific
research.
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