An Overview of Security Checks in the U.S. Nonimmigrant Visa Process
The Visas Condor ClearanceThe criteria of the Visas Condor are classified, but appear to be based on several factors:
1. Information disclosed on Form DS-157/DS-160 (including travel to predominantly Muslim countries in the last 10 years, prior employment, military service for certain nationals, specialized skills or training)
2. Country of Birth, Citizenship, or Residence and persons born in countries that DOS designated as State Sponsors of Terrorism ("T-4") (Iran, Cuba, Syria, and Sudan) or male applicants from "List of 26" (a classified list of predominantly Muslim countries) countries will likely be subject to a Condor security check.
DOS reports that most Visas Condor clearances are completed within several days. Posts now use an electronic method of submitting SAO's. Presently, most "List of 26" applicants who are subject to Condor clearances in Canada are generally issued NIV's within approximately 10-15 business days.
The Visas Donkey ClearanceA Donkey SAO is a name "hit" based on non-criminal issues and is not nationality specific. For instance, a U.K. citizen with the name "Mohammad Khan" will very likely be subject to a donkey clearance. Most donkey clearances average 6 to 12 weeks to process while a few take substantially longer.
The Visas Mantis ClearanceOtherwise known as the "sensitive technology" clearance, this security check is based on whether an applicant is involved in any of the 15 categories found on the Critical Fields List (CFL) of DOS' Technology Alert List (TAL). The TAL includes a vastly expanded list of technologies with potential "dual-use" applications of seemingly benign technologies that may have potential military applications. This list is so comprehensive that it includes almost every possible associated technology or skill involving chemistry, biochemistry, immunology, chemical engineering and pharmacology to name a few. With such an all-inclusive list, nearly every research scientist, physician, academic and engineer involved in any of these fields could be subject to a consular post erring on the side of caution.
The Visa Mantis Clearance ContinuedAccording to prior DOS guidance, a Mantis clearance is generally not warranted if the technology falls within the public domain (e.g. widely available to the public, such as patented informationor if it involves information that would generally be taught in an academic course. There has been a substantial revision and guidance regarding TAL which was issued by DOS to consular posts on October 1, 2003. Since the cable is classified, the full effects are unknown (although it appears that an increasing number of applicants are being subjected to Mantis clearances and lengthy processing delays). Visas Mantis processing times are reportedly completed within 2-8 weeks.
Mantis clearances are now valid for 2 years for H, L, or O visas, 4 years for F/J-visas and 1 year for B visas but if there is a change in duties a new mantis can be requested.
The Visa Mantis Clearance ContinuedWhile Chinese or Russian F visas may be restricted to only one year validity, the process of obtaining a re-issuance is now substantially quicker as a second mantis isn't required if the visa application is made within the 4 year period unless there is a new course of study which may require another clearance. Clearly a transfer from law to nuclear physics would trigger a new mantis.
NCIC Criminal HitsOver 8 million records from the FBI's National Crime Information Center (NCIC) have been incorporated into the Consular Lookout and Support System (CLASS) name check database, more than doubling the records on file to 18 million. The information, which is constantly updated, contains information on terrorists and foreign warrants and also extensive records about the occurrence of criminal convictions
or arrests including relatively minor offenses such as shoplifting.
As DOS is not a "law enforcement agency", consuls do not have access to the specifics of the arrest or conviction. Accordingly, if there is hit in the system for a prior arrest and/or conviction or a false "hit", the consul is required to submit the applicant's fingerprints to the FBI to request the record or to confirm that there is no record.
NCIC Criminal Hits ContinuedApplicants may present certified final court dispositions, arrest records, and legal briefs at the time of the interview, but the post cannot issue the visa until it has received the results back from the FBI.
False hits are occurring with increased regularity for those with similar names (e.g., John Smith or Juan Gonzalez) to someone with a prior arrest and/or conviction. As many as half of the names recently entered into the CLASS system are Latino, and this has resulted in an alarming number of false hits and delays for persons with common Latino names. Posts have implemented an electronic fingerprinting program which allows them to process clearances on false hits in the same day, while clearances for positive hits are often received in two days.
SAO/Security Clearance ExpeditesDOS can expedite security clearances only if there is a significant U.S. government interest or a humanitarian concern. The expedite request must be approved by the Chief or Deputy Chief of the Coordination Division in the Visa Office (VO). It is advisable to submit an expedite request letter from the petitioner or sponsor, detailing the emergent reasons for the applicant's entry to the United States, to the Consular Officer at the post where the application was submitted. Our experience with obtaining expedited clearances for physicians in medically underserved areas, and for other critical medical researchers, has generally been favorable.
If a security check has been pending for over 60 days, you may call the Visa Office (VO) Public Inquiries line at (202) 663-1225.
Contact InformationShould you have any questions regarding the above or are interested in having attorney assistance with an overdue security clearance or nonimmigrant visa application in Canada, Mexico, or worldwide, please do not hesitate to contact Avi ([email protected]) at 1-800-VISA-LAW. We travel to the border posts in Canada and Mexico frequently to represent visa applicants.
Avi Friedman is a Senior Attorney with Wolfsdorf Immigration Law Group in Los Angeles, California. He is currently serving his third term on the American Immigration Lawyers Association (AILA) Department of State Liaison Committee and his seventh term as the Consular Affairs Liaison for AILA's Southern California Chapter. He has authored numerous immigration articles including several chapters for AILA's "The Visa Processing Guide" (Ottawa, Canada and Nogales and Monterrey, Mexico) and has participated as a speaker on consular visa issues at AILA and NAFSA conferences.