NONIMMIGRANT VISAS WEDNESDAY, APRIL 7, 1976 HOUSE OF REPRESENTATIVES, CITIZENSHIP, AND INTERNATIONAL LAW OF THE COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2237, Rayburn House Office Building, Hon. Joshua Eilberg [chairman of the subcommittee] presiding. Present: Representatives Eilberg, Holtzman, and Cohen. Also present: Garner J. Cline, Arthur P. Endres, Jr., counsel; Janice A. Zarro, assistant counsel; and Alexander B. Cook, associate counsel. Mr. EILBERG. The subcommittee will come to order. This is the first in a series of oversight hearings which the subcommittee will hold to consider the administration of section 101(a) (15) of the Immigration and Nationality Act, which sets forth various nonimmigrant visa categories. During the course of these hearings we will consider in detail the statutory and regulatory criteria for each of these categories as well as specific problems which may have developed in implementing this criteria. While these are oversight hearings, we will also consider certain legislative proposals which have been introduced to modify definitions of some of these categories. In this regard I introduced H.R. 11157, designed to eliminate abusives in the nonimmigrant category. It is my hope that these oversight hearings will enable the subcommittee to obtain a better understanding of the various nonimmigrant visa categories and to determine what legislative action is required to modify any of these categories. We will welcome our first witness, the Honorable Leonard F. Walentynowicz, to discuss the general procedures for processing nonimmigrant visas. Glad to have you here. Would you introduce the gentlemen accompanying you? TESTIMONY OF HON. LEONARD F. WALENTYNOWICZ, ADMINISTRATOR OF THE BUREAU OF SECURITY AND CONSULAR AFFAIRS, U.S. DEPARTMENT OF STATE, ACCOMPANIED BY JULIO J. ARIAS, DIRECTOR OF THE VISA OFFICE; CARL G. SHEPHERD, HEAD OF THE ADVISORY OPINIONS DIVISION OF THE VISA OFFICE; CORNELIUS D. SCULLY, CHIEF OF THE REGULATIONS DIVISION OF THE VISA OFFICE; HORACE F. SHAMWELL, JR., LEGAL DEPUTY ASSISTANT ADVISOR; AND HAMPTON DAVIS, ASSISTANT CHIEF OF PROTOCOL Mr. WALENTYNOWICZ. I would be more than happy to. Thank you very much, Mr. Chairman. Again, it is a great pleasure to appear (1) before you and to respond to your welcomed interest in the way immigration law works, and what we can do to improve it, so it meets not only our international responsibilities but also our domestic needs. I would like to begin by introducing the people appearing here with me. We felt that because of the complexities of this area we should bring as much expertise as possible to appear before you so that we can be fully responsive. With that in mind, I would like to introduce on my left Mr. Julio J. Arias, Director of the Visa Office, to my far right is Carl G. Shepherd, Chief of the Advisory Opinions Division. He was very instrumental in the preparation of this statement. On my immediate right is Mr. Cornelius D. Scully, Chief of the Regulations Division of the Visa Office, and to my far right is Mr. Horace F. Shamwell, Deputy Assistant Legal Advisor who is here to respond to any queries you may have regarding diplomatic immunity. Mr. EILBERG. Because of the length of the statement and the fact that we will cover a large number of nonimmigrant visas, we would like to take it up one at a time, if we possibly could. So that we are asking you now, to read the introductory remarks up to page 11, and pages 35 to 37, and then respond to questions. Mr. WALENTYNOWICZ. Yes, I understand, this is rather a lengthy statement. Mr. EILBERG. And it is a good statement. Mr. WALENTYNOWICZ. Thank you. We thought it was about time somebody prepared a primer in this area. While it is not inclusive, we feel it is a good foundation for the work you suggested we do. Mr. Chairman, and members of the subcommittee, I am pleased to have this opportunity to discuss one very important phase of visa operations-the nonimmigrant visa-with you today. We welcome your efforts in maintaining a continuing oversight of our operations and consider this effort a most useful one to us, as we hope it will be for you. The subject you have asked us to discuss today-nonimmigrant policy and procedure is a very broad one and, if you find my opening statement a rather lengthy one, it is because we have tried to speak to all aspects of it. Under the terms of the Immigration and Nationality Act, aliens seeking entry into the United States are divided into two basic categories: Immigrants who are seeking permanent residence and nonimmigrants who intend only a temporary stay in this country. Although there are no numerical limitations on the number of nonimmigrant visas that may be issued, with certain exceptions nonimmigrants are subject to the same qualitative grounds of ineligibility as immigrants. Nonimmigrants are differentiated by their purpose of entry, and section 101 (a) (15) of the act provides for 12 different nonimmigrant classifications. While the procedures and requirements vary to some extent between these classifications, there are certain general considerations applicable to nonimmigrants as a whole. The act contains several provisions of direct pertinence to the decision process concerning nonimmigrant visa entitlement. For example, section 214(b) stipulates, "Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer * * * that he is entitled to a nonimmigrant status under section 101 (a) (15)." Section 222 (d) requires that a nonimmigrant present with his application such documents as may be by regulations required, and 22 CFR 41.111 (a) broadly authorizes the consular officer to require any document considered necessary to establish the applicant's eligibility. In addition, section 291 provides that "Whenever any person makes application for a visa, the burden of proof shall be upon such person to establish that he is eligible to receive such visas, and, that he is entitled to the nonimmigrant status claimed." Certain categories of nonimmigrant visa applicants (B, F, H, and J) are required by law to establish that they have a permanent residence abroad which they have no intention of abandoning. This is determined by, but not limited to such factors as family ties, ownership of property, nature of employment if any, prospects for the future of the applicant in his own country, etc. It also includes social and psychological factors which contribute to the formation of the individual's motivations. These latter factors are important in determining the eligibility of aliens who are not in a position to offer adequate material factors as evidence. Operating within the general framework of the applicable laws and regulations, the decision in any given case remains essentially a matter of judgment on the part of the responsible consular officer. As has become ever more evident in recent years, this decision is as important as it is difficult-important partly because the obtention of a nonimmigrant visa provides Mr. EILBERG. What does the word "obtention" mean? Mr. WALENTYNOWICZ. Well, obtention means to get a hold of, provide a means of, to obtain it. The NIV provides a means of entry for these aliens who are unable to secure immigrant visas, and because of economic pressures in many parts of the world, are anxious to gain admission into the United States by any means possible. In this context, the nonimmigrant visa application is one of the first lines of defense against the increasingly acute "illegal alien" problem. On the other hand, consular officers are sensitive to the desirability of facilitating the movement of people, both as a means of fostering international good will and understanding as well as for benefits gained from tourism and travel in this country by alien visitors from abroad. The difficulty of a decision as to nonimmigrant entitlement is that it must be reached on a judgment as to the applicant's intent or probable future conduct. As careful as a consular officer may be in his inquiry into a nonimmigrant visa applicant's ties abroad and alleged purpose of temporary entry into the United States, there is always a risk of possible deception. I testified earlier this week before the Subcommittee on Foreign Commerce and Tourism of the Senate Commerce Committee on the efforts of the Department of State to facilitate travel to the United States. We actively encourage tourism, foreign trade and commerce, and educational and information exchange. While it sometimes appears that our efforts are devoted primarily to excluding the non-bona-fide alien, this is actually only a small portion of our nonimmigrant visa caseload. The overwhelming majority of all applicant cases legitimate. The number of persons applying for nonimmigrant visas has risen dramatically over the past few years, so much so that some visa issuing posts are hard put to process the flood of applicants during their heavy seasons. Logistics often do not allow very much time to be spent on a visa application at any stage of its processing. But, at the same time, the number of "illegal immigrants" who have overstayed their time after entry on tourist visas and have accepted employment has also grown dramatically, even from countries which previously caused few or no problems. The processing of doubtful cases is even more time consuming than their numbers would seem to warrant. A refusal requires considerably more time than an issuance and often results in correspondence which is in itself a seriously time-consuming matter. Applicants who are not really qualified are often issued visas owing to forced haste in the process of adjudication. In such situations, were the consular officers to screen all cases as carefully as they should, the first to suffer would be bona fide tourists and other nonimmigrants, for the whole process would become bogged down and there would be time to process only a fraction of the totality of visa applicants. The Department has been acutely aware of this situation, and has been taking appropriate measures to bolster visa processing personnel the world over. Increases in consular officer positions, primarily for visa work, have been requested and authorized over the past several years. In fiscal year 1974, 62 additional consular positions were authorized worldwide. In fiscal year 1975, 87 positions were requested, and we have requested 74 new positions for fiscal year 1976 and hope for their approval. In fiscal year 1977, we expect to request 68 new consular positions worldwide. For your background information, during fiscal year 1975, nonimmigrant visas issued and revalidated worldwide, plus border crossing cards issued in Canada and Mexico totaled 3,353,497. In that period, nonimmigrant applicants were refused 339,774 times. Of the nonimmigrant visas issued, 2,686,464 were issued to temporary visitors for business and for pleasure. Mechanically, the process of applying for a nonimmigrant visa is a simple one. The alien must complete a visa application form and attach to it a small photograph of himself. He must then present his application, with his valid passport, to the consular officer. For a tourist visa, there are no additional specific documentary requirements, but the applicant is encouraged to submit any additional documentation which he might consider helpful in substantiating the stated purpose of his trip and his intentions to return home after completing his trip. For other classifications of nonimmigrant visas, such as temporary workers, or students, petitions or certificates of eligibility may also be necessary to establish entitlement to status. There is a general requirement for a personal interview of each visa applicant, but the consular officer is also granted a general discretionary authority to waive the personal appearance requirement in the case of aliens classified as visitors, foreign government officials, international organization aliens, journalists, aliens in transit, and some classes of airline crewmen. The Department does not try to determine whether a consular officer in a particular country should exercise his discretionary authority to waive the personal appearance requirement. It is our view that the consular officer himself is in a better position to determine, on the basis of his knowledge of local conditions, whether this requirement may be waived and in what circumstances. Thus, the extent to which this discretionary authority is exercised varies widely from country to country. In countries in which fraudulent and deceptive practices are not common and in which there is little likelihood that aliens will try to obtain tourist visas for the purpose of remaining and working illegally, personal appearance is waived in a great majority of the cases; in other countries, in which the situation is otherwise, it is waived only very selectively. There are no statistics kept on the number of visa applications processed in person and the number processed by mail or messenger service. When an application is received, clerical personnel verify that the alien's passport is valid and check records to determine whether there may be any prior record of the alien, especially any record of a known or suspected inadmissibility. The consular officer then reviews the application and accompanying documentation, if any. If this review leads him to conclude that the alien is qualified to receive a visa he will proceed to have the visa stamp inserted in the alien's passport and then return the passport to the alien by handing it to him if he is physically present in the office, or through the mail or some other delivery system. If the consular officer's review leaves him in some doubt as to the alien's qualification to receive a visa, he will then interview the alien. If the alien is present in the office, the interview can be conducted immediately and the consular officer will then make his determination and issue or formally refuse the visa. If the alien is not present in the office, having submitted his application through the mail or another delivery system in anticipation of having his case adjudicated without the necessity of personal appearance, the consular officer will invite the alien to appear for a personal interview at which time the same process of interview and issuance of refusal will occur. I believe it might be worthwhile to emphasize that while consular officers abroad have the final responsibility for deciding issues of visa eligibility and classification, this decision is not made in a vacuum, nor is it solely a matter of the individual officer's interpretation. Pursuant to the overall authority of the Secretary of State for the administration of the Immigration and Nationality Act, guidelines and standards are provided by the Department. As the Administrator of the Bureau of Security and Consular Affairs, I have been specifically delegated the authority and responsibility by the Secretary of State for the implementation and coordination of all matters relating to immigrant policy and visa issuance. I and my staff do, of course, consult with other bureaus of the Department and with our superiors when determining specific immigration and visa policy, especially in cases having highly delicate foreign relations or domestic policy ramifications. In all these instances, care must be taken to insure that the policy of Congress as expressed by the Immigration and Nationality Act is not made subordinate to the competing interests and pressures created by the desires to accommodate the needs of foreign countries. Regulations are promulgated by the Department and these regulations are additionally clarified by explanatory notes as well as supplemented by airgrams and telegrams to the field. This body of reference materials is further supplemented by precedent files maintained at each post, together with consultative arrangements with |