APPENDIX CORRESPONDENCE RELATING TO THE ISSUANCE OF A-2 VISAS JUDICIARY COMMITTEE, November 10, 1976. Mr. LAWRENCE EAGLEBURGER, Deputy Undersecretary for Management, DEAR MR. EAGLEBURGER: Thank you for your letter of November 8, 1976 and your kind personal note. I must say that I am disappointed that the original deadline of October 31, 1976 for the adjustment of A-2 student visa holders to the "F" or "J" status has not been met. Appreciating the difficulties the Department has encountered in getting students to submit applications to the Immigration Service for action, I agree this one time to the postponement of the deadline to November 30, 1976. I have noted that the Saudi Arabians will stop payments to their student nationals who have not adjusted by that date. Notwithstanding, I would wish that the Department reiterate to both the Embassies of Saudi Arabia and Kuwait that no further concessions will be made. To this end, I am requesting the Commissioner of Immigration to institute deportation proceedings as of December 1, 1976 against all student holders of A-2 visas who have failed to adjust. Since this problem has been with us for a long time, I feel that it can only be resolved by direct firm action. With kind personal regards, JOSHUA EILBERG, Chairman. Hon. JOSHUA EILBERG, DEPARTMENT OF STATE, Washington, D.C., November 8, 1976. Chairman, Subcommittee on Immigration, Citizenship, and International Law, Committee on the Judiciary, House of Representatives. DEAR MR. CHAIRMAN: I refer to Secretary Kissinger's letter to you of May 10, 1976, concerning the termination of issuance of A-2 visas to students from certain Arab countries. This letter is to inform you of measures taken by the Departments of State and Justice (INS) and by the Saudi Arabian and Kuwaiti Embassies to secure the cooperation of all students concerned to change from A-2 to F or J status, as appropriate, and to provide you with the results to date. During May officers of the concerned bureaus of the Department of State held meetings with representatives of the Saudi Arabian and Kuwaiti Embassies and Cultural Missions to explain the new procedures and to enlist the help of all in carrying out the changeover as rapidly and as smoothly as possible. The Embassies agreed to send notices to all of their students and to provide lists of names and addresses of such students for the use of INS. In addition, this Department offered to obtain from the Embassies a blanket guarantee of support covering all students sponsored by their respective governments, and to assist INS in every other possible way in implementing this project. Among other things, at the request of this Department the National Association for Foreign Student Affairs (NAFSA) circularized its membership in May 1976 to enlist the assistance of foreign student advisers in informing Saudi Arabian and Kuwaiti students of the need to change their status. Both Embassies and their Cultural Missions have apparently cooperated to the best of their ability. They provided the lists and sent notification to all of their students. At the same time, INS also sent letters to all students on the (221) lists as well. Both Embassies provided blanket letters of support for all government sponsored students and the Service instructed all of its offices to process the cases without further financial evidence. When it was discovered that the passports of many of the students did not have sufficient validity for the change (length of passport validity had not been important under A-2 visas, since stay was granted for "duration of status"), both Embassies expedited extensions, and the Saudi Arabian Embassy assigned a Consular Officer to the Cultural Mission in Houston exclusively for the purpose of revalidating passports as rapidly as they were received. Unfortunately, by the time the meetings were held in May, many colleges and universities had already let out for the summer, and by the time notices could be mailed, virtually all students were in the summer holiday period. Therefore, the number of students who were reached was limited. As a result, except for the comparatively few new students who arrived during August and early September, addresses and locations for many could not be known with accuracy until well into September, when the students once again got in touch with their Cultural Missions in order to obtain their support checks. Both Missions have provided revised address lists and are continually updating such lists as information becomes available. In mid October the Immigration and Naturalization Service sent another appeal to all members of the National Association for Foreign Student Affairs (paid for by the Service) since the number applying for change of status, although gathering momentum, was still small compared with the total estimated number of cases. The Service reported that as of close of business on October 29, 2,573 applications out of a total estimated caseload of 4,850 had actually been received, and adjudicated, with 900 applications being made during the preceding week. Telephone checks made last week by this Department with foreign student advisers at major universities throughout the country (Texas, Northwestern, Arizona, Southern California, Indiana, Iowa State, Colorado, California at Berkeley) produced surprise from those polled, since all felt that the change had gone smoothly and had been, or was about to be, completed at their institutions. They cited delays, such as the necessity to have passports revalidated, but felt that their students would meet the deadline. One possible explanation for this seemingly contradictory situation is that the major universities all have large and efficient staffs of foreign student advisers, while smaller institutions are not as well equipped. For instance, one community college in California which called on the Department of State for aid and advice had seventy-five Saudi and Kuwaiti students and only a Student Services Office (no foreign student adviser) to deal with the changes. Given the fact that the nearest office of the Immigration Service was nearly 100 miles distant, the problems were substantial. I can assure you that INS and this Department have been making all possible efforts to bring this project to a successful conclusion, including enlisting the continuing efforts of the two Embassies concerned. Therefore, it is somewhat difficult to understand why more applications have not been filed to date. Because we view the situation with serious concern, the Department's Assistant Secretary for Near Eastern and South Asian Affairs, Mr. Alfred L. Atherton, has again approached the Saudi and Kuwaiti Ambassadors to make these facts known to them and to request their total cooperation in resolving this problem. According to the Kuwaiti Ambassador, Kuwaiti nationals have been making a good effort to comply with the requirement and reports from universities around the country tend to confirm this statement. It appears that the largest number of students who have failed to apply are Saudi nationals. Accordingly and in order to impress such students with the importance of this matter, the Saudi Ambassador has agreed to instruct the Saudi Cultural Mission at Houston by telegram to withhold any further support checks from students who cannot verify that they have applied for their change of status. In light of these circumstances, this Department proposes to extend the deadline for adjusting status to November 30, 1976. Given the importance of implementing this program without further delay, the two Embassies concerned will be informed that the Department will officially notify the INS that except for good cause shown, any Saudi Arabian or Kuwaiti national who has not filed by November 30, 1976 will be declared to be out of status on December 1, 1976. We will keep you fully informed of further developments in this matter as they occur. Sincerely, LAWRENCE S. EAGLEBURGER, Deputy Under Secretary for Management. U.S. DEPARTMENT OF JUSTICE, Hon. JOSHUA EILBERG, DEAR MR. CHAIRMAN: Reference is made to our recent discussion and that of Mr. Greene with you concerning the changing of status from A-2 to F-1 or J-1 of certain government supported Saudi and Kuwaiti students. Attached is a copy of a letter which I have sent to Secretary Kissinger on this matter. Until we receive the material requested from the Department of State we cannot assure you that the change of status program will be completed by any date certain. Mr. Greene stated to you in his meeting on June 11, 1976, that we would do everything possible to meet the commitment made on our behalf by the Department of State of completing the adjustments by October 31, 1976. I confirm Mr. Greene's statement, and we are making plans to that end. However, as our letter to State indicates not all conditions necessary to complete this project are within our control. In addition to the material requested from State, another factor in the project beyond our control is the time when the subjects file their applications for adjustment. If they are filed well in advance of October 31, 1976, this will aid us significantly. If a large number wait until late October this would make it impossible to complete the work by the target date. The extent to which the Department of State can obtain the cooperation of the countries involved will determine this aspect. At the same time our field offices have made advance commitments of manpower months ago to such work items as processing of relative visa petition and adjustment of status to permanent residence applications for deserving applicants who have already waited a long time and in whose cases further delay would work an extreme hardship. We are making determinations now as to what actions we can properly defer to accommodate this project without undue prejudice to the applicants. In accordance with your request, we will keep you advised of our progress. Respectfully, U.S. DEPARTMENT OF JUSTICE, Washington, D.C., June 9, 1976. Hon. JOSHUA EILBERG, Chairman, Subcommittee on Immigration, Citizenship, and International Law, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: Reference is made to your letter of May 21, 1976, with attachment from the Secretary of State concerning termination of the practice of issuing A-2 visas to students from certain Arab countries. I note that the first paragraph on page 2 of Secretary Kissinger's letter discusses the procedure for granting these students a change of nonimmigrant status from A-2 to the appropriate For J classification. The statement is made that "Such regularization will be accomplished by October 31, 1976." Please be advised that existing backlogs and personnel limitations will not permit the adjudication of these applications by October 31, 1975. This matter has been brought to the attention of the Department of State and it is understood that the A-2 students will be required to have their applications for change of nonimmigrant status on file by that date, except for good cause. The Service will adjudiciate these applications by the earliest possible date as workloads permit. Sincerely, L. F. CHAPMAN, Jr., Commissioner. THE SECRETARY OF STATE, Hon. JOSHUA EILBERG, Chairman, Subcommittee on Immigration, Citizenship and International Law, Committee on the Judiciary, House of Representatives. DEAR MR. CHAIRMAN: This is in response to your letter of March 24 in which you suggested that the Department of State terminate immediately the practice of issuing A-2 visas to students from certain Arab countries. I am also aware of your letter of April 7 to the Commissioner of the Immigration and Naturalization Service which requests that immediate steps be taken to refuse admission to students bearing A-2 visas. I agree with you that the issuance of such visas is no longer appropriate and I am approving the actions of the Department's Bureau of Security and Consular Affairs to terminate the practice. However, there are considerations which merit allowing a brief transitional period for the parties concerned before the effective date of this termination. The cessation of the practice of issuing A-2 visas to government-supported students from Saudi Arabia and Kuwait-students who are obligated to work for their governments upon their return-will affect the procedures now followed by these two governments in preparing the documentation for their students and, as you correctly note, will affect thousands of students. A precipitate change of procedures, particularly at this stage of the school year, would create unusual hardships. Therefore, in fairness to those concerned, the practice of issuing A-2 visas to government-supported Saudi and Kuwaiti students will be terminated effective August 31, 1976. We are, of course, informing the two governments and our consular officers in Saudi Arabia and Kuwait of this impending termination. Upon termination of the A-2 visa practice, a process of regularizing the issuance of visas to Saudi and Kuwaiti students under procedures now generally in force for foreign students, will come into effect. This regularization will be implemented in close consultation with the foreign governments and U.S. agencies concerned. As a part of this process forms I-20 or forms DSP-66 will be submitted to the Immigration and Naturalization Service for the purpose of effecting a change of status from A-2 to F or J classification. This process will also assure that Kuwaiti and Saudi students submit an annual report of address. The academic institution involved will also report any change in student status. Such regularization will be accomplished by October 31, 1976, with the understanding that further additional time will be given to affected individuals to regularize their status if for good cause shown they were unable to do so by October 31, 1976. We wish to achieve full compliance with this new practice as rapidly as possible, consistent with giving the affected individuals a fair opportunity to respond thereto. To this end, we are sending instructions to the field outlining the new procedures. We have also arranged briefing sessions with the Kuwaiti and Saudi Missions in the United States. Finally, we expect to have in our possession, in a matter of days, a complete, current list of all Saudi and Kuwaiti A-2 students in the United States. This list will not only include their U.S. address but also the name and address of the academic institution in which the student is enrolled. Best regards, HENRY A. KISSINGER. DEPARTMENT OF JUSTICE, Hon. JOSHUA EILBERG, IMMIGRATION AND NATURALIZATION SERVICE, Chairman, Committee on the Judiciary, DEAR MR. CHAIRMAN: This is in response to your letter of April 7, 1976, requesting that the Immigration and Naturalization Service take immediate steps to refuse admission to applicants who apply for admission as diplomats under the provision of section 101 (a) (15) (A)(ii) of the Immigration and Nationality Act, unless those applicants are entitled to such status as specifically provided in the law. Please be assured that I fully share your concern for the effective enforcement of the Immigration and Nationality Act. However, section 101 (a) (15) (A) (ii) of the Act makes the Secretary of State the sole judge of whether an alien will be "accepted" as within the A-2 classification. Therefore, under section 102 of the Act, the inspecting officer has no authority to refer for an exclusion proceeding an alien possessing a valid passport who can satisfactorily identify himself as the person named in an A-2 visa issued by the Secretary of State, except on grounds arising under section 212(a) (27) and (29) of the Act. Traditionally, recognition of diplomatic status has been a foreign affairs function reserved solely to the Secretary of State and his subordinates. In an opinion dated July 23, 1952, which dealt with the Immigration Act of 1924, the General Counsel of the Immigration and Naturalization Service stated that "the decisions of the Secretary of State as to the status or accreditation of foreign diplomatic representatives must be regarded as dispositive." The Department of Justice concurred in that view. The language of the Immigration and Nationality Act of 1952 is even more explicit than the language of the Immigration Act of 1924 with respect to the function of the Secretary of State. An A-2 nonimmigrant is defined in section 101(a)(15) of the Immigration and Nationality Act as including "upon a basis of reciprocity, other officials and employees who have been accredited by a foreign government recognized de jure by the United States, who are accepted by the Secretary of State, and the members of their immediate families." (underscoring supplied) I emphasize the language "accepted by the Secretary of State" and the reference to "reciprocity". As I have pointed out, in view of this language in the statutory definition, it is clear that only the Secretary of State has the power to pass on the qualifications of A-2 nonimmigrants. Section 102 (3) of the Immigration and Nationality Act specifically exempts A-2 nonimmigrants from the exclusion and deportation requirements of the Act, except the reasonable requirements of passports and visas as a means of identification and documentation necessary to establish their qualifications, and certain exclusion grounds relating to subversion and national security. This exemption continues for as long as these aliens remain in the A-2 classification. Section 214(b) of the Act provides that every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the immigration officer at the time of application for admission, that he is entitled to nonimmigrant status under section 101 (a) (15). This general provision, however, is limited by the specific provisions of section 101 (a) (15) and section 102(3) dealing with A-2 nonimmigrants. Consequently, as mentioned earlier, where an alien is in possession of a valid passport and an A-2 visa, the immigration inspector can only refer such alien for an exclusion proceeding if he believes the alien to be an imposter or excludable on national security or subversive grounds. Under the law, the Service is not in a position to challenge A-2 status recognized by the Secretary of State. Service interference with A-2 status recognized by the Secretary of State could have a serious detrimental effect on foreign relations. The most we can do under Service policy is report any apparent impropriety to the Department of State. I should point out that Service Operations Instructions (248.3) specifically require notification to the Department of State if it appears that an alien admitted in A status should have been classified as an F or H-3 nonimmigrant. However, if that Department continues to recognize the A status there is nothing further we can do. Sincerely, Hon. EDWARD H. LEVI, Attorney General, Department of Justice, DEAR MR. ATTORNEY GENERAL: For over twenty years consular officers of the Department of State, with agreement of the Department of Justice, have improperly issued visas under provisions of Section 101 (a) (15) (ii) of the Immigration and Nationality Act to natives of Saudi Arabia and Kuwait who are seeking admission to the United States as students. As you know, the Immigration and Nationality Act provides that aliens coming to the United States as bona fide nonimmigrant students to attend accredited schools may be issued visas under the provisions of Section 101(a)(15)(F) or (J) of the Immigration and Nationality Act. |