Immigration lawyers warn of visa delays and more denials with beefed-up vetting

Under new directives in a cable signed by Secretary of State Rex Tillerson last week, anyone who has ever set foot in territory controlled by the Islamic State must undergo a mandatory social-media review.

That could affect many visa applicants from Iraq, even though the country was removed this month from a list of majority-Muslim countries with a travel ban under a Jan. 27 executive order signed by President Trump and later revised. Until now, social-media reviews had been done at the discretion of consular officials who approve or deny visas.

Additional screening measures are coming, as Tillerson ordered consulates to develop criteria for identifying "applicant populations warranting increased scrutiny." The cable suggests when considering applicants who fit the eventual profile, consular officers should ask for further security guidance.

Although the new standards outlined in a March 17 Tillerson cable are still being refined, and others reiterate existing procedures, they offer a glimpse of how the Trump administration plans to impose "extreme vetting" even though courts in Hawaii and Maryland have issued injunctions against portions of the proposed travel ban.

"This strikes me as an end run around the judicial injunctions," said Stephen Legomsky, who was chief counsel of U.S. Citizenship and Immigration Services during the Obama administration. "The injunctions prevent the implementation of a travel ban by executive order. But nothing in them specifically prohibits new rules on visa denials overseas."

The Tillerson cable, first reported by Reuters, instructs consular officials to explore all available leads in investigating an applicant's background.

"Consular officers should not hesitate to refuse any case presenting security concerns. . . ." he wrote, adding, "All officers should remember that all visa decisions are national security decisions."

It is unclear, however, how much time consular officials will be expected to dedicate to in-person interviews with applicants. It advises each official to schedule no more than 120 visa interviews a day, the equivalent of four minutes per interview, or about the same as before.

Immigration advocates say that even though Tillerson just reiterated the long-standing expectation that national security is paramount when consular officers decide whether to grant visas, it is likely to lead to more denials, even among applicants with legitimate reasons to visit the United States. The decisions of consular officials are considered final, and virtually never subject to appeal.

"If you're a consular officer, given how much attention is being paid to national security, if it's at all close, you'd rather be the officer who denies a visa knowing there's never a chance at review than the person who issues a visa to someone who commits a terrible act," said Legomsky. "It's a strong incentive to deny a visa without a shred of concern for what that person might be."

Though no countries besides Iraq are mentioned in Tillerson's cable, the new rules do not apply to visa waiver countries - primarily most of the nations in Europe, plus Australia, New Zealand, Japan, South Korea, Singapore and Taiwan.

The Tillerson memo contains no specifics about what criteria might be used, so it is not known if nationality or behavior will be factors.

Immigration advocates say that the beefed-up vetting is bound to add to already-lengthy backlogs of applicants.

"This is going to slow down the process for reviewing and granting visas, and create severe delays for businesses trying to have conferences or for their employees travel to the United States, as well as families waiting on visas," said Greg Chen, advocacy director for the American Immigration Lawyers Association. "If there's a legitimate national security concern about an individual, obviously additional screening is required. But it appears there's going to be a broader use of interview requirements and screening requirements placed on a wider set of individuals, without any clear, demonstrable national security benefits."

In most U.S. embassies around the world, visas are processed within a few days of an interview, even at missions in cities like Baghdad and Beirut.

"That's going to change," said Greg Siskind, an immigration lawyer in Memphis who worries many physicians, university professors and researchers will face delays or denials because of the places they come from.

"If you're from certain countries, or religions, your odds are going up that a lot of people are going to get visas in the three days that is typical, or even 20 days," said Siskind.

Mandating social-media reviews for people who have lived in territory ever controlled by the Islamic State - primarily parts of Syria and a sizable swath of Iraq - will be time consuming and require proficient translators. It also, theoretically, could be the source of intelligence beyond the obvious search for radical websites connected to Islamist extremist groups.