Nonimmigrant Visas: Outcomes of Applications and Changes in Response to 2017 Executive Actions
Released: 2018-08-14T00:00:00

Letter

Background

Roles and Responsibilities

Several U.S. agencies have roles and responsibilities related to the screening and vetting of NIV applicants, as shown in table 1.

Key Visa Adjudication Process Terms Validity period: The length of time during which a nonimmigrant visa (NIV) is valid for use by a foreign national seeking to travel to a U.S. port of entry and apply for admission into the United States. Entries: The number of applications for admission into the country permitted under a single NIV. Reciprocity arrangements: An understanding or arrangement between the U.S. government and another country on the length of time visas issued by either or both nations are valid for admission.

There are many NIVs, and for the purposes of this report, we have placed the majority of NIVs into one of seven groups, as shown in table 2. The validity period and number of entries varies depending on (1) the particular NIV and (2) reciprocity arrangement with an individual’s country of nationality, among other factors. For example, a foreign national of one country may be issued a tourist visa valid for 1 year that allows for a single U.S. entry, while a foreign national of another country may be issued a tourist visa valid for 5 years and that permits multiple entries. However, the authorized period of stay—that is, the amount of time that the nonimmigrant is permitted to remain in the United States after being admitted—has no relation to the validity period. For more information on the various NIVs, see appendix I.

NIV Adjudication Process

State is generally responsible for the adjudication of NIV applications, and manages the NIV application process, including the consular officer corps and its functions at more than 220 visa-issuing posts overseas. Depending on various factors, such as the particular NIV sought, the applicant’s background, and visa demand, State officials noted that the length of the visa adjudication process can vary from a single day to months. This screening and vetting process for determining who will be issued or refused a visa contains several steps, as shown in figure 1:

Petitions. Prior to State’s adjudication process, some NIVs require applicants to first obtain an approved petition from U.S. Citizenship and Immigration Services (USCIS), as shown in table 3. For example, applicants seeking an employment-based NIV or a U.S. citizen’s foreign national fiancé(e) seeking U.S. entry to conclude a valid marriage, must obtain an approved petition from USCIS prior to applying for their NIV. The petitioner (i.e., a U.S. citizen, organization or business entity) completes the petition on behalf of the applicant (i.e., the beneficiary), and the petition would be submitted to a U.S.-based USCIS service center for adjudication.

USCIS Background Checks. As part of the adjudication process for visas requiring a USCIS-approved petition before the NIV application is submitted to State, USCIS conducts background checks on U.S.- based petitioners and foreign beneficiaries. For example, petitioner and beneficiary information is screened against TECS—DHS’s principal law enforcement and antiterrorism database that includes enforcement, inspection, and operational records. Further, for U.S. citizens petitioning for a K-1 visa on behalf of their fiancé(e), an FBI fingerprint check may also be required of the U.S. citizen petitioner. If the background checks identify a potential match to derogatory information, the background check unit at the USCIS service center that received the petition is to conduct further research to confirm the match, such as running checks against other government systems and collaborating with other government agencies. If all background check hits have been resolved and documented, and there is no reason not to proceed, USCIS will adjudicate the petition. In fiscal year 2017, USCIS reported that it received about 640,000 petitions for NIVs, and approved over 550,000.

NIV Application. After having obtained USCIS approval of the NIV petition, as applicable, the foreign national begins the consular process by completing an online NIV application, known as a DS-160. Upon submitting an application, the applicant can schedule an interview at a post overseas and pays the processing fee.

Key Visa Adjudication Process Terms Inadmissible: Individuals are inadmissible to the United States if they fall within the classes of foreign nationals defined as such under the Immigration and Nationality Act (INA), as amended, Pub. L. No. 82-414, tit. II, ch. 2, § 212(a), 66 Stat. 163, 182-87 (1952) (classified, as amended, at 8 U.S.C. § 1182(a)), such as foreign nationals who have engaged in terrorist or criminal activities or previously violated U.S. immigration law. If a visa applicant is found inadmissible, and has not obtained a waiver from the Department of Homeland Security, the applicant would be statutorily ineligible for a visa. Ineligible: An individual is ineligible for a visa if it appears to the Department of State consular officer, based on the application or supporting documentation, that the applicant is not qualified to receive a visa under any provision of law. If the consular officer decides that an applicant is ineligible for visa issuance, the refusal may be based on statutory grounds of inadmissibility under INA § 212(a), or may be due to the individual’s failure to otherwise satisfy the applicable eligibility requirements for the particular visa, as defined in the INA. For example, a consular officer may refuse a J-1 exchange visitor visa to an applicant coming to the United States to perform services as a member of the medical profession if the applicant does not either demonstrate competency in oral and written English or hold a degree from an accredited school of medicine, as required of such visa applicants under INA § 212(j). eligibility concerns related to visa applicants. Prior to adjudicating the visa application, consular officers must review all such security check results. Some applicants are not subjected to all of the security checks depending on certain characteristics, such as age and visa category. For example, State does not generally require that fingerprints be collected for applicants who are either under 14 years old or over 79 years old, or for foreign government officials seeking certain visas.

As needed, some applicants undergo an interagency review process called a security advisory opinion (SAO), which is a multi-agency, U.S-based review process for certain NIV applicants. For example, SAOs are mandatory in cases of certain security check hits, a foreign national’s background, or a foreign national’s intention while in the United States. In addition, consular officers have the discretion to request an SAO for any visa applicant. Through the SAO process, consular officers send additional information on applicants to U.S.- based agencies, who review that information against their holdings. Department of State data indicate that consular officers made over 180,000 requests for SAOs for NIV applicants in fiscal year 2017.

Adjudication. If the consular officer determines that the applicant is eligible for the visa on the basis of the application, supporting documentation, and other relevant information such as statements made in an interview, he or she will take the applicant’s passport for final processing, but the visa cannot be printed until all security checks have been returned and reviewed. If the consular officer determines that the applicant is inadmissible to the United States or otherwise ineligible under the applicable visa eligibility criteria, he or she informs the applicant that the visa has been refused, and identifies the provision(s) of law under which the visa was refused.

Recurrent vetting. In March 2010, shortly after the December 2009 attempted bombing by a foreign national traveling to the United States on a valid visa, CBP began vetting individuals with NIVs on a recurrent basis. This program has led State to revoke visas after they have been issued when information was later discovered that rendered the individual inadmissible to the United States or otherwise ineligible for the visa. In addition, CBP analysts may take other actions as needed after identifying new derogatory information, such as recommending that the airline deny boarding to the traveler because the traveler is likely to be deemed inadmissible upon arrival in the United States (known as a no-board recommendation) or making a referral to ICE, which may seek to remove the individual if already within the United States. According to NCTC, KFE also conducts recurrent vetting of NIV holders against emerging threat information.

Number of NIV Adjudications and Refusal Rates Increased Through Fiscal Year 2016, and Declined in Fiscal Year 2017; NIV Application Characteristics Vary

Number of NIV Applications Adjudicated Increased Annually from Fiscal Years 2012 through 2016 and Declined in Fiscal Year 2017

The total number of NIV applications that consular officers adjudicated annually (or, NIV adjudications) peaked at about 13.4 million in fiscal year 2016, which was an increase of approximately 30 percent since fiscal year 2012. In fiscal year 2017, NIV adjudications decreased by about 880,000 adjudications, or about 7 percent. Figure 2 shows the number of applications adjudicated each year from fiscal year 2012 through 2017. Appendix II includes additional data on NIV adjudications related to this and the other figures in this report.

Annual Monthly Trends. State data from fiscal years 2012 through 2016 indicate that NIV adjudications generally followed an annual cycle, ebbing during certain months during the fiscal year; however, adjudications in fiscal year 2017 departed slightly from this trend. Specifically, from fiscal years 2012 through 2016, the number of NIV adjudications typically peaked in the summer months. State officials noted that the summer peak is generally due to international students who are applying for their visas for the coming academic year. However, in fiscal year 2017, the summer months did not experience a similar increase from previous months, departing from the trend over the previous five fiscal years, according to State data. Instead, NIV adjudications peaked in December of fiscal year 2017. State officials attributed some of the decline in fiscal year 2017 to a decrease in Chinese NIV applicants, which we discuss later in this report. Figure 3 shows monthly NIV adjudications for fiscal years 2012 through 2017.

Most NIV Adjudications from Fiscal Years 2012 through 2017 Were for Tourist and Business Visitor Visas, and Approximately Half of All Applicants Came from Six Countries

State data on NIV applications adjudicated from fiscal years 2012 through 2017 indicate that the number of adjudications by visa group, applicant’s country of nationality, and location of adjudication were generally consistent, with some exceptions.

Visa Group. From fiscal years 2012 through 2017, about 80 percent of NIV adjudications were for tourist and business visitors as shown in figure 4. The next largest groups were visas for students and exchange visitors and temporary workers, which accounted for an average of 9 percent and 6 percent, respectively, of all adjudications during this time period.

Although adjudications for visas in some categories increased, others decreased over time. For example, as shown in figure 5, NIV adjudications for temporary workers increased by approximately 50 percent from fiscal years 2012 through 2017 (592,000 to 885,000). During the same time period, adjudications for tourist and business visitors also increased by approximately 20 percent overall (from 8.18 million to 9.97 million), but decreased from fiscal years 2016 to 2017. However, NIV adjudications for student and exchange visitor visas decreased by about 2 percent from fiscal years 2012 through 2017 (1.01 million to 993,000) overall, but experienced a peak in fiscal year 2015 of 1.2 million. Appendix I includes additional information on NIV adjudication by visa group from fiscal years 2012 through 2017.

State officials identified reasons to explain these trends:

Temporary Workers. Although there was an increase in adjudications across all types of temporary worker visas, the largest percentage increase was for H-2A visas, which are for foreign workers seeking to perform agricultural services of a temporary or seasonal nature. Specifically, adjudications of H-2A visas increased by 140 percent from fiscal years 2012 to 2017 (from about 71,000 to 170,000). State officials noted that H-2A visas are not numerically limited by statute. Further, State officials stated that they believe U.S. employers are increasingly less likely to hire workers without lawful status and are petitioning for lawfully admitted workers, which in part led to an increase in H-2A visa demand.

Tourist and Business Visitors. State officials partly attributed the overall changes to tourist and business visitor visas to the extension of the validity period of such visas for Chinese nationals, which represented the largest single country of nationality for tourist and business visitor visas in fiscal year 2017 (17.7 percent). In November 2014, the United States and the People’s Republic of China reciprocally increased the validity periods of multiple-entry tourist and business visitor visas issued to each other’s citizens for up to 10 years. The change in policy was intended to support improved trade, investment, and business by facilitating travel between the two countries. According to State officials, extending validity periods can create an initial increase in demand for such visas, followed by a period of stabilization or even decline as NIV holders would be required to apply for renewal less frequently. According to State officials, in early fiscal year 2015, the increase in the validity period to 10 years for such visas created a spike in Chinese demand in fiscal year 2015, and by fiscal year 2016, the initial demand for these visas had been met and Chinese economic growth was simultaneously slowing, resulting in fewer adjudications for such visas in fiscal year 2017. State data for this time period indicate that the number of adjudications for tourist and business visitor visas for Chinese nationals increased from 1.58 million in fiscal year 2014 to 2.54 million in fiscal year 2015, followed by a decline to 2.34 million in fiscal year 2016 and 1.76 million in fiscal year 2017.

Student and Exchange Visitors. Similar to tourist and business visitors, State officials partly attributed the overall changes in student and exchange visitor visa adjudications to the extension of the validity period of such visas for Chinese nationals, which represented the largest single country of nationality for student and exchange visitor visas in fiscal year 2017 (19 percent). In November 2014, the United States extended the validity period of the F visa for academic students from 1 year to 5 years. State officials noted that similar to tourist and business visitor visas, there was an initial surge in Chinese F-visa applicants due to the new 5-year F-visa validity period that began in fiscal year 2015, but the number dropped subsequently because Chinese students with such 5-year visas no longer needed to apply as frequently for F visas. State data for this time period indicate that the number of visa adjudications for F visas for Chinese nationals increased from about 267,000 in fiscal year 2014 to 301,000 in fiscal year 2015, followed by a decline of 172,000 in fiscal year 2016 and 134,000 in fiscal year 2017.

Applicant’s Country of Nationality. In fiscal year 2017, more than half of all NIV adjudications were for applicants of six countries of nationality: China (2.02 million, or 16 percent), Mexico (1.75 million, or 14 percent), India (1.28 million, or 10 percent), Brazil (670,000, or 5 percent), Colombia (460,000, or 4 percent), and Argentina (370,000, or 3 percent), as shown in figure 6.

Location of Adjudication. State data indicate that the geographic distribution of NIV adjudications across visa-issuing posts worldwide remained relatively consistent from fiscal years 2012 through 2017. NIV adjudications from visa-issuing posts in the Western Hemisphere comprised the largest proportion worldwide during this time period; however, this proportion decreased from 48.8 percent in fiscal year 2012 to 41.7 percent in fiscal year 2017. During the same time period, the proportion of NIV adjudications at visa-issuing posts in other regions increased slightly. For example, the percentage of NIV adjudications from posts in Africa increased from 3.8 percent to 5.5 percent, and the percentage of adjudications from posts in South and Central Asia increased from 7.9 percent to 11.2 percent from fiscal years 2012 through 2017. Figure 7 provides the proportion of NIV adjudications at visa- issuing posts from each region from fiscal years 2012 through 2017.

NIV Refusal Rate Has Increased Since Fiscal Year 2012 and Varies By Visa Group

The percentage of NIVs refused—known as the refusal rate—increased from fiscal years 2012 through 2016, and was about the same in fiscal year 2017 as the previous year. As shown in figure 8, the NIV refusal rate rose from about 14 percent in fiscal year 2012 to about 22 percent in fiscal year 2016, and remained about the same in fiscal year 2017; averaging about 18 percent over the time period. As a result, the total number of NIVs issued peaked in fiscal year 2015 at about 10.89 million, before falling in fiscal years 2016 and 2017 to 10.38 million and 9.68 million, respectively.

The NIV refusal rate can fluctuate from year to year due to many factors. For example, according to State officials, removing a large, highly- qualified set of travelers from the NIV applicant population can drive up the statistical refusal rate. State officials also noted that when a country joins the Visa Waiver Program or a visa for certain nationalities increase from 1-year to 10-year visa validity periods, these individuals no longer apply for visas and affect the overall refusal rate. Further, State officials noted that changes in political and economic conditions in individual countries can affect visa eligibility, which in turn affects the overall refusal rate. State officials noted that the degree to which an applicant might seek to travel to the United States unlawfully is directly related to political, economic, and social conditions in their countries. For example, if global or regional economic conditions deteriorate, more applicants may have an incentive to come to the United States illegally by, for example, obtaining a NIV with the intent to unlawfully stay for a particular time period or purpose other than as permitted by their visa, which then would increase the number of NIV applications that consular officers are refusing.

From fiscal years 2012 through 2017, the refusal rate varied by visa group. The highest refusal rate was for tourists and business visitors, which rose from about 15 percent in fiscal year 2012 to over 25 percent in fiscal year 2017, as shown in figure 9. Other visa categories, such as foreign officials and employees, transit and crewmembers, and fiancé(e)s and spouses, had refusal rates below 5 percent during this time period. State officials noted that because different visa categories have different eligibility and documentary requirements, they have different refusal rates. For example, F, J, and H visas require documentation of eligibility for student, exchange, or employment status, respectively.

Most NIV Applications Refused from Fiscal Years 2012 through 2017 Were for Reasons Other than Terrorism-Related Ineligibilities

According to State data, while the majority of NIV refusals from fiscal years 2012 through 2017 were a result of consular officers finding the applicants ineligible, a relatively small number of refusals were due to terrorism and other security-related concerns. NIV applicants can be refused a visa on a number of grounds of inadmissibility or other ineligibility under U.S. immigration law and State policy. For the purposes of this report, we have grouped most of these grounds for refusal into one of seven categories, as shown in table 4.

State data indicate the more than 90 percent of NIVs refused each year from fiscal years 2012 through 2017 were based on the consular officers’ determination that the applicants were ineligible nonimmigrants—in other words, the consular officers believed that the applicant was an intending immigrant seeking to stay permanently in the United States, which would generally violate NIV conditions, or that the applicant otherwise failed to demonstrate eligibility for the particular visa he or she was seeking. For example, an applicant applying for a student visa could be refused as an ineligible nonimmigrant for failure to demonstrate possession of sufficient funds to cover his or her educational expenses as required. Similarly, an applicant could be refused as an ineligible nonimmigrant for indicating to the consular officer an intention to obtain a student visa to engage in unsanctioned activities while in the United States, such as full-time employment instead of pursuing an approved course of study.

According to State data, the second most common reason for refusal during this time period was inadequate documentation, which accounted for approximately 5 percent of refusals each year. In such cases, a consular officer determined that the application failed to include necessary documentation for the consular officer to ascertain whether the applicant was eligible to receive a visa at that time. If, for example, the applicant provides sufficient additional information in support of the application, a consular officer may subsequently issue the visa, as appropriate.

Our analysis of State data indicates that relatively few applicants— approximately 0.05 percent—were refused for terrorism and other security-related reasons from fiscal years 2012 through 2017. Security- related reasons can include applicants who have engaged in genocide, espionage, or torture, among other grounds. Terrorism-related grounds of inadmissibility include when an applicant has engaged in or incited terrorist activity, is a member of a terrorist organization, or is the child or spouse of a foreign national who has been found inadmissible based on terrorist activity occurring within the last five years, among other reasons. As shown in figure 10, in fiscal year 2017, State data indicate that 1,256 refusals (or 0.05 percent) were based on terrorism and other security-related concerns, of which 357 refusals were specifically for terrorism-related reasons.

Executive Actions Taken in Calendar Year 2017 Resulted in Some NIV Refusals and Agencies Are Implementing Additional Changes to NIV Screening and Vetting Processes

Executive Actions Taken in Calendar Year 2017 Introduced New Visa Entry Restrictions and Requirements to Enhance Screening and Vetting, Including for NIVs

In calendar year 2017, the President issued two executive orders and a presidential proclamation that required, among other actions, visa entry restrictions for nationals of certain countries of concern, a review of information needed for visa adjudication, and changes to visa (including NIV) screening and vetting protocols and procedures (see timeline in figure 11). Initially, the President issued Executive Order 13769, Protecting the Nation from Foreign Terrorist Entry Into the United States (EO-1), in January 2017. In March 2017, the President revoked and replaced EO-1 with the issuance of Executive Order 13780 (EO-2), which had the same title as EO-1. Among other things, EO-2 suspended entry of certain foreign nationals for a 90 day period, subject to exceptions and waivers. It further directed federal agencies—including DHS, State, DOJ and ODNI—to review information needs from foreign governments for visa adjudication and develop uniform screening and vetting standards for U.S. entities to follow when adjudicating immigration benefits, including NIVs. In September 2017, as a result of the reviews undertaken pursuant to EO-2, the President issued Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats (Proclamation), which imposes certain conditional restrictions and limitations on the entry of nationals of eight countries—Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen—into the United States for an indefinite period. These restrictions are to remain in effect until the Secretaries of Homeland Security and State determine that a country provides sufficient information for the United States to assess adequately whether its nationals pose a security or safety threat. Challenges to both EOs and the Proclamation have affected their implementation and, while EO-2’s entry restrictions have expired, the visa entry restrictions outlined in the Proclamation continue to be fully implemented as of June 2018, consistent with the U.S. Supreme Court’s June 26, 2018, decision, which held that the President may lawfully establish nationality-based entry restrictions under the INA, and that Proclamation 9645 itself “is squarely within the scope of Presidential authority.” A more detailed listing of the executive actions and related challenges to those actions brought in the federal courts can be found in appendix III.

Some NIV Applications in Fiscal Year 2017 Were Refused Due to the Executive Actions Taken in 2017; Adjudications of Applications for Nationals of Affected Countries Decreased from Prior Fiscal Years

Our analysis of State data indicates, out of the nearly 2.8 million NIV applications refused in fiscal year 2017, 1,338 were refused due to visa entry restrictions implemented in accordance with the executive actions. To implement the entry restrictions, in March 2017, State directed its consular officers to continue to accept all NIV applications and determine whether the applicant was otherwise eligible for a visa without regard to the applicable EO or Proclamation. If the applicant was ineligible for the visa on grounds unrelated to the executive action, such as having prior immigration violations, the applicant was to be refused on those grounds. If the applicant was otherwise eligible for the visa, but fell within the scope of the nationality-specific visa restrictions implemented pursuant to the applicable EO or Proclamation and was not eligible for a waiver or exception, the consular officer was to refuse the visa and enter a refusal code into State’s NIV database indicating that the applicant was refused solely due to the executive actions. More than 90 percent of the NIV applications refused in fiscal year 2017 pursuant to an executive action were for tourist and business visitor visas, and more than 5 percent were for students and exchange visitors.

State data also indicate that the number of applications adjudicated for nationals of the 7 countries identified in EO-1—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen—decreased by 22 percent in fiscal year 2017, as compared to a 7 percent general decrease in NIV adjudications worldwide that year. For example, as shown in table 5, the decrease in adjudications from fiscal years 2016 to 2017 for nationals of the 7 countries identified in EO-1 ranged from around 12 percent to more than 40 percent.

State, DHS, and Other Agencies Are Implementing Changes to NIV Screening and Vetting Processes Consistent with the Executive Actions and Associated Guidance

As directed by the executive actions, DHS, State, DOJ, and ODNI took several steps to enhance NIV screening and vetting processes given their responsibilities for implementing the presidential actions. Among other things, the responsibilities included: (1) a review of information needed for visa adjudication; (2) the development of uniform screening standards for immigration programs; and (3) implementation of enhanced visa screening and vetting protocols and procedures.

Review of information needed for visa adjudication. In accordance with EO-2, DHS conducted a worldwide review, in consultation with State and ODNI, to identify additional information needed from foreign countries to determine that an individual is not a security or public-safety threat when adjudicating an application for a visa, admission, or other immigration benefit. According to State officials, an interagency working group composed of State, DHS, ODNI, and National Security Council staff was formed to conduct the review. To conduct this review, DHS developed a set of criteria for information sharing in support of immigration screening and vetting, as shown by table 6. According to DHS officials, to develop these criteria, DHS, in coordination with other agencies, identified current standards and best practices for information collection and sharing under various categories of visas to create a core list of information needed from foreign governments in the visa adjudication process. For example, State sent an information request to all U.S. posts overseas requesting information on host nations’ information sharing practices, according to State officials.

To assess the extent to which countries were meeting the newly established criteria, DHS officials stated that they used various information sources to preliminarily develop a list of countries that were or were not meeting the standards for adequate information sharing. For example, DHS officials stated that they reviewed information from INTERPOL on a country’s frequency of reporting lost and stolen passport information, consulted with ODNI for information on which countries are terrorist safe havens, and worked with State to obtain information that State officials at post may have on host nations’ information sharing practices. According to the Proclamation, based on DHS assessments of each country, DHS reported to the President on July 9, 2017, that 47 countries were “inadequate” or “at risk” of not meeting the standards. DHS officials identified several reasons that a country may have been assessed as “inadequate” with regard to the criteria. For example, some countries may have been willing to provide information, but lacked the capacity to do so. Or, some countries may not have been willing to provide certain information, or simply did not currently have diplomatic relations with the U.S. government.

As was required by EO-2, State engaged with foreign governments on their respective performance based on these criteria for a 50-day period. In July 2017, State directed its posts to inform their respective host governments of the new information sharing criteria and request that host governments provide the required information or develop a plan to do so. Posts were directed to then engage more intensively with countries DHS’s report preliminarily deemed “inadequate” or “at risk”. Each post was to submit an assessment of mitigating factors or specific interests that should be considered in the deliberations regarding any travel restrictions for nationals of those countries. DHS officials stated that they reviewed the additional information host nations provided to State and then reevaluated the initial classifications to determine if any countries remained “inadequate.”

On September 15, 2017, in accordance with EO-2, DHS submitted to the President a list of countries recommended for inclusion in a presidential proclamation that would prohibit certain categories of foreign nationals of such countries from entering the United States. The countries listed were Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen— which were assessed as “inadequate,” and Somalia, which was identified as a terrorist safe haven. The Presidential Proclamation indefinitely suspended entry into the United States of certain nonimmigrants from the listed countries (see table 7) and directed DHS, in consultation with State, to devise a process to assess whether the entry restrictions should be continued, modified or terminated.

In September 2017, State issued additional guidance to posts on implementation of the Presidential Proclamation. As of July 2018, State continues to accept and process the NIV applications of foreign nationals from the eight countries covered by the Proclamation. Such applicants are to be interviewed, according to State guidance, and consular officers are to determine if the applicant is otherwise eligible for the visa, meets any of the proclamation’s exceptions, or qualifies for a waiver.

Development of uniform screening standards for U.S. immigration benefit programs. Consistent with EO-2, State, DHS, DOJ, and ODNI developed a uniform baseline for screening and vetting standards and procedures by the U.S. government. According to State officials, an interagency working group comprised of State, DHS, DOJ, and ODNI staff is implementing these requirements. Based on its review of existing screening and vetting processes, DHS officials stated that the working group established uniform standards for (1) applications, (2) interviews, and (3) security system checks (i.e., biographic and biometric).

Regarding applications, DHS officials stated that the group identified data elements against which applicants are to be screened and vetted. In February 2018, DHS Office of Policy officials stated that they had taken steps to create more consistency across U.S. government forms that collect information used for screening and vetting purposes, such as State’s DS-160 NIV application as well as 12 DHS forms. For example, officials stated that they anticipate issuing Federal Register notices announcing the intended changes to such forms.

Regarding interviews, DHS officials stated that the working group established a requirement for all applicants seeking an immigration benefit, including NIV applicants, to undergo a baseline uniform national security and public safety interview. DHS officials stated that the working group modeled its interview baseline on elements of the refugee screening interview. To help implement this standard, DHS officials stated that the department is offering more training courses in enhanced communications (i.e. detecting deception and eliciting responses) and making such courses accessible to other U.S. government entities and U.S. officials overseas.

Regarding security checks, the working group identified certain checks that should be conducted for all applicants seeking an immigration benefit, including NIV applicants. For example, DHS officials stated that the working group concluded that all applicants for U.S. immigration benefits should be screened against DHS’s TECS, among other federal databases. In February 2018, DHS Office of Policy officials stated that they were also exploring the extent to which current screening and vetting technologies can be expanded. For example, technology that is being used to screen applicants for counterterrorism concerns can potentially be modified to screen applicants for other concerns such as public safety or participation in transnational organized crime. However, these officials noted such changes to technology can take a long time.

DHS officials stated that each department and agency is responsible for implementing the uniform standards for their relevant immigration programs. For example, with regard to maintaining information electronically, State officials stated that for nonimmigrant and immigrant visas, as of May 2018, they collected most, but not all, of the application data elements.

In addition to executive actions taken in calendar year 2017, the President issued National Security Presidential Memorandum 9 on February 6, 2018, which directed DHS, in coordination with State, DOJ, and ODNI, to establish a National Vetting Center to optimize the use of federal government information in support of the national vetting enterprise. This memorandum stated that the U.S. government must develop an integrated approach to the use of intelligence and other data, across national security components, in order to improve how departments and agencies coordinate and use information to identify individuals presenting a threat to national security, border security, homeland security, or public safety. The center is to be overseen and guided by a National Vetting Governance Board, consisting of six senior executives designated by DHS, DOJ, ODNI, State, the Central Intelligence Agency, and the Department of Defense. Further, within 180 days of the issuance of the memorandum, these six departments and agencies, in coordination with the Office of Management and Budget, are to jointly submit to the President for approval an implementation plan for the center, addressing, among other things, the initial scope of the center’s vetting activities; the roles and responsibilities of agencies participating in the center; a resourcing strategy for the center; and a projected schedule to reach both initial and full operational capability. On February 14, 2018, the Secretary of Homeland Security selected an official to serve as the Director of the National Vetting Center and delegated the center’s authorities to CBP.

DHS Office of Policy officials stated in February 2018 that the center is intended to serve as the focal point of the larger screening and vetting enterprise, and will coordinate policy and set priorities. The center will use the uniform baselines for screening and vetting standards and procedures established per EO-2 to set short- and long-term priorities to improve screening and vetting across the U.S. government. Further, these officials stated screening and vetting activities will continue to be implemented by the entities that are currently implementing such efforts, but roles and responsibilities for screening and vetting for immigration benefits may be modified in the future based on the work of the center. According to DHS Office of Policy officials, efforts to implement National Security Presidential Memorandum 9, such as the development of an implementation plan, are ongoing as of June 2018.

Implementation of new visa screening and vetting protocols and procedures. In response to the EOs and a March 2017 presidential memorandum issued the same day as EO-2, State has taken several actions to implement new visa screening and vetting protocols and procedures. For example, State sought and received emergency approval from the Office of Management and Budget in May 2017 to develop a new form, the DS-5535. The form collects additional information from a subset of visa applicants to more rigorously evaluate applicants for visa ineligibilities, including those related to national security and terrorism. The new information requested includes the applicant’s travel history over the prior 15 years, all phone numbers used over the prior 15 years, and all email addresses and social media handles used in the last 5 years. State estimated that, across all posts, the groups requiring additional vetting represented about 70,500 individuals per year.

Agency Comments

We provided a draft of the sensitive version of this report to DHS, DOJ, State, and ODNI. DHS, DOJ, and State provided technical comments, which we incorporated as appropriate.

As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until seven days from the report date. At that time, we will send copies of this report to the Secretaries of Homeland Security and State, the Attorney General, and the Director of National Intelligence. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-8777or GamblerR@gao.gov. Key contributors to this report are listed in appendix IV.

Appendix I: Enclosures on Nonimmigrant Visa Groups

There are many nonimmigrant visas (NIV), which are issued to foreign nationals such as tourists, business visitors, and students seeking temporary admission into the United States. For the purposes of this report, we placed the majority of NIVs into one of seven groups. In the following enclosures, we provide a descriptive overview of each group on the basis of our analysis of the Department of State’s (State) fiscal years 2012 through 2017 NIV data. Each enclosure also contains the following:

Description of the group. In this section, we provide a narrative description of the group, as well as a table of the specific NIVs that comprise the group.

Characteristics of the applicants. In this section, we provide the number of annual NIV adjudications for fiscal years 2012 through 2017, the specific NIVs adjudicated in fiscal year 2017 within the group, the regions to which applicants applied for these NIVs in fiscal year 2017, and the top five nationalities that applied for NIVs in the group in fiscal year 2017.

Issuances. In this section, we provide the number of NIVs issued within this group for fiscal years 2012 through 2017.

Refusals. In this section, we provide the refusal rate for the entire NIV group for fiscal years 2012 through 2017. For the NIVs that were refused in fiscal year 2017 for this group, we also provide the top ground for refusal. NIV applicants can be refused a visa on a number of grounds of inadmissibility or other ineligibility under U.S. immigration law and State policy. However, across all visa groups, the top categories were either ineligible nonimmigrant or inadequate documentation: Ineligible nonimmigrant. For most NIV categories, the applicant is presumed to be an intending immigrant until the applicant establishes to the satisfaction of the consular officer that he or she is entitled to a nonimmigrant status. An applicant may be refused under this provision if, among other things, the consular officer determines the applicant lacks sufficient ties to his or her home country, or intends to abandon foreign residence; that evidence otherwise indicates an intent to immigrate to the United States permanently; or that the applicant is likely to violate the terms of the visa after being admitted.

Inadequate documentation. The consular officer determined that the application is not in compliance with the INA because, for example, it lacks necessary documentation to allow the consular officer to determine visa eligibility. In such cases, the applicant would not be found eligible for the visa unless and until satisfactory documentation is provided to the consular officer or after the completion of administrative processing, such as security advisory opinions.

Tourist and business visitor visas

Characteristics of the applicant pool

Number of adjudications (in millions)

Visa types (FY 2017) (9,968,157 adjudications)

Region in which applicant applied (FY 2017) (9,968,157 adjudications)

Issuances

● Issued tourist and business visitor visas rose 22

percent from fiscal years 2012 through 2015, and declined by about 13 percent from fiscal years 2015 to 2017. ● The refusal rate for tourist and business visitor visas generally increased each year from fiscal year 2012 through fiscal year 2017. ● The vast majority of refusals in fiscal year 2017 were due to the applicant’s inability to overcome the presumption of his or her intent to immigrate or meet the visa’s eligibility criteria.

Issued visas, fiscal years 2012 through 2017 (in thousands)

Visa refusal rates, fiscal years 2012 through 2017 (percentage)

Student and exchange visitor visas

Characteristics of the applicant pool

Number of adjudications (in thousands)

Visa types (FY 2017) (992,855 adjudications)

Region in which applicant applied (FY 2017) (992,855 adjudications)

Issuances

● Generally, student and exchange visitor visa

● The refusal rate for student and exchange visitor issuances decreased each year from fiscal years 2015 through 2017. visas peaked in fiscal year 2016, and slightly declined in fiscal year 2017. ● The vast majority of refusals in fiscal year 2017 were due to the applicant’s inability to overcome the presumption of his or her intent to immigrate or meet the visa’s eligibility criteria.

Issued visas, fiscal years 2012 through 2017 (in thousands)

Visa refusal rates, fiscal years 2012 through 2017 (percentage)

Temporary worker visas

Characteristics of the applicant pool

Number of adjudications (in thousands)

Visa types (FY 2017) (884,667 adjudications)

19% 10% 16% Region in which applicant applied (FY 2017) (884,667 adjudications)

Issuances

● Issued H-2A visas more than doubled from fiscal

● Generally, the refusal rates for temporary worker years 2012 through 2017. visas decreased from fiscal years 2012 through 2017. ● Department of State officials noted, for example, that H-2A visas are not numerically limited by statute. They also stated that they believe U.S. employers are increasingly less likely to hire workers without lawful status and are petitioning for lawfully admitted workers. ● In fiscal year 2017, temporary worker visas were most frequently refused because the applicant did not provide adequate documentation to the consular officer.

Issued visas, fiscal years 2012 through 2017 (in thousands)

Visa refusal rates, fiscal years 2012 through 2017 (percentage)

Transit and crewmember visas

Characteristics of the applicant pool

Number of adjudications (in thousands)

Visa types (FY 2017) (330,117 adjudications)

Region in which applicant applied (FY 2017) (330,117 adjudications)

Issuances

● Issued transit and crewmember visas increased by

● The refusal rates for transit and crewmember visas about 8 percent from fiscal years 2012 through 2017 (from about 295,000 to 320,000). varied over the period of fiscal years 2012 through 2017. ● Specifically, issued C-1/D visas increased over the ● The majority of refusals in fiscal year 2017 were same time period, but the number of issued visas for the remaining visa types in this category have decreased. due to the applicant’s inability to overcome the presumption of his or her intent to immigrate or meet the visa’s eligibility criteria.

Issued visas, fiscal years 2012 through 2017 (in thousands)

Visa refusal rates, fiscal years 2012 through 2017 (percentage)

Foreign official and employee visas

Characteristics of the applicant pool

Number of adjudications (in thousands)

Visa types (FY 2017) (166,187 adjudications)

Region in which applicant applied (FY 2017) (166,187 adjudications)

Issuances

● Issued foreign official and employee visas remained generally stable over the period of fiscal years 2012 through 2017.

● The refusal rates for foreign official and employee visas remained under 4 percent. ● In fiscal year 2017, foreign official and employee visas were most frequently refused because the applicant did not provide adequate documentation to the consular officer.

Issued visas, fiscal years 2012 through 2017 (in thousands)

Visa refusal rates, fiscal years 2012 through 2017 (percentage)

Treaty trader and investor visas

Characteristics of the applicant pool

Number of adjudications (in thousands)

Visa types (FY 2017) (68,580 adjudications)

Region in which applicant applied (FY 2017) (68,580 adjudications)

Issuances

● Overall, issued treaty trader and investor visas

● Generally, refusal rates for treaty trader and investor increased over the period of fiscal years 2012 through 2017. visas increased slightly over the period of fiscal years 2012 through 2017. ● Issuances for E-3 visas nearly doubled from fiscal ● The majority of refusals in fiscal year 2017 were year 2012 through 2017, but comprise a small percentage of this category overall. due to the applicant’s inability to overcome the presumption of their intent to immigrate or meet the visa’s eligibility criteria.

Issued visas, fiscal years 2012 through 2017 (in thousands) Issued visas, fiscal years 2012 through 2017 (in thousands)

Visa refusal rates, fiscal years 2012 through 2017 (percentage)

Fiancé(e) and spouse visas

Characteristics of the applicant pool

Number of adjudications (in thousands)

Visa types (FY 2017) (40,533 adjudications)

Region in which applicant applied (FY 2017) (40,533 adjudications)

Issuances

● The number of issued fiancé(e) and spouse visas

● Refusal rates for fiancé(e) and spouse visas were fluctuated over the period of fiscal years 2012 through 2017, but increased overall during this time period. relatively low during the period of fiscal years 2012 through 2017. ● Most refusals in fiscal year 2017 were due to inadequate documentation from the visa applicant, potentially indicating that such applications failed to include necessary documentation for the consular officer to ascertain whether the applicant was eligible to receive a visa at that time.

Issued visas, fiscal years 2012 through 2017 (in thousands)

Visa refusal rates, fiscal years 2012 through 2017 (percentage)

Appendix II: Nonimmigrant Visa Statistics, Fiscal Years 2012 through 2017

Nonimmigrant visas (NIV) are issued to foreign nationals such as tourists, business visitors, and students seeking temporary admission into the United States. The Department of State (State) is generally responsible for the adjudication of NIV applications, and manages the application process, including the consular officer corps and its functions at more than 220 U.S. embassies and consulates (i.e., visa-issuing posts) overseas. Depending on various factors, such as the particular NIV sought, the applicant’s background, and visa demand, State officials noted that the length of the visa adjudication process can vary from a single day to months.

This appendix provides descriptive statistics of NIV adjudications, issuances, and refusals for fiscal years 2012 through 2017. Specific details are shown in table 8 below.

State data from fiscal years 2012 through 2016 indicate that NIV adjudications generally followed an annual cycle, ebbing during certain months during the fiscal year; however, adjudications in fiscal year 2017 departed slightly from this trend. Specifically, from fiscal years 2012 through 2016, the number of NIV adjudications typically reached its highest peak in the summer months, as shown in table 9. For example, State officials noted that a summer peak is generally due to international students who are applying for their visas for the coming academic year.

There are many NIVs, and for the purposes of this report, we have placed the majority of NIVs into one of seven groups. Table 10 includes the annual NIV adjudications, issuances, and refusal rates, for each visa group for fiscal years 2012 through 2017.

NIV applicants seeking to travel to the United States represent many different nationalities, but the countries of nationality with the most NIV adjudications have remained relatively consistent in recent years. Table 11 provides the top 25 countries of nationality for NIV adjudications for fiscal years 2012 through 2017.

NIV applicants can apply for their NIVs at more than 220 visa-issuing U.S. posts overseas. Table 12 describes the regions to which NIV applicants applied from fiscal years 2012 through 2017.

NIV applicants can be refused a visa on a number of grounds of inadmissibility or other ineligibility under U.S. immigration law and State policy. For the purposes of this report, we have grouped most of these grounds for refusal into one of seven categories, and group the remaining into a miscellaneous category, as shown in table 13.

Appendix III: Foreign National Entry Restrictions and Related Litigation, January 2017 Through June 2018

From January through October 2017, the administration took various executive actions establishing nationality-based entry restrictions for certain categories of foreign nationals from designated countries. This appendix supplements information included in this report to provide a more comprehensive presentation of changes to U.S. immigration policy affecting nonimmigrant and immigrant entry into the United States, and outlines the legal standards applied, and precedent developed and relied upon, by federal courts in resolving challenges to the executive actions. In particular, it describes relevant aspects of the executive actions specifically addressed in this report—Executive Orders 13769 and 13780, both titled Protecting the Nation from Foreign Terrorist Entry into the United States, and Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats—that imposed visa entry restrictions on certain countries’ nationals and included provisions addressing NIV screening and vetting, as well as other executive actions on immigration issued by the current administration. Furthermore, this appendix provides a detailed account of the interrelated challenges to these executive actions brought in the federal courts through June 2018.

In summary, on March 6, 2017, the President issued Executive Order (EO) 13780, Protecting the Nation from Foreign Terrorist Entry Into the United States, which instituted visa and refugee entry restrictions, and an accompanying memorandum addressed to the Secretaries of State and Homeland Security and the Attorney General, calling for heightened screening and vetting of visa applications and other immigration benefits.

EO 13780 stated that it is U.S. policy to improve the screening and vetting protocols and procedures associated with the visa-issuance process and U.S. Refugee Admissions Program (USRAP). Enforcement of sections 2(c) and 6(a) of EO 13780 which established visa entry restrictions for nationals of six countries of particular concern—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for a 90-day period, and suspended all refugee admissions for 120 days, was enjoined by federal district court orders issued in March 2017. On appeal, the U.S. Courts of Appeals for the Fourth and Ninth Circuits generally upheld these decisions. Upon review by the U.S. Supreme Court in June 2017, the injunction was partially lifted except with respect to foreign nationals who have bona fide ties to the United States Implementation of EO 13780 commenced on June 29, 2017.

On September 24, 2017, pursuant to section 2(e) of EO 13780, the President issued Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. This proclamation restricts entry into the United States of certain categories of foreign nationals from eight countries—Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen—for an indefinite period. Preliminary injunctions issued by the U.S. District Courts for the Districts of Maryland (Maryland federal district court) and Hawaii (Hawaii federal district court) in October 2017 prohibited implementation of these visa entry restrictions except with respect to North Korean and Venezuelan nationals. On December 4, 2017, the U.S. Supreme Court issued two orders staying these district court injunctions; and on January 19, 2018, the Supreme Court granted the government’s petition for review of the December 22, 2017, decision of the Ninth Circuit, which partially affirmed the Hawaii federal district court’s preliminary injunction. As of June 2018, these latest visa entry restrictions continue to be fully implemented consistent with the Supreme Court’s June 26, 2018, decision, which held that the President may lawfully establish nationality-based entry restrictions, and that Proclamation 9645 itself “is squarely within the scope of Presidential authority.” The following sections describe these executive actions and related litigation in greater detail.

Executive Actions and Related Litigation

Executive Order 13769

On January 27, 2017, the President issued EO 13769, Protecting the Nation from Foreign Terrorist Entry Into the United States, which directed a review of information needs for adjudicating visas and other immigration benefits to confirm individuals seeking such benefits are who they claim to be, and are not security or public-safety threats. To temporarily reduce investigative burdens during the review period, the EO suspended U.S. entry for nationals of seven countries of particular concern—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. In addition, EO 13769 put USRAP on hold for 120 days and indefinitely barred admission of Syrian refugees. Shortly after its issuance, however, the EO faced numerous legal challenges in federal courts across the country involving various constitutional and statutory issues such as detainee applications for writs of habeas corpus, alleged religious or nationality-based discrimination, and the extent of the EO’s applicability to certain categories of foreign nationals, including U.S. lawful permanent residents (LPR) and dual nationals holding passports issued by a listed country as well as another nation not subject to visa entry restrictions.

On February 3, 2017, the Washington federal district court entered a nationwide temporary restraining order (TRO) prohibiting enforcement of the EO’s entry restrictions. In rejecting the government’s argument that a TRO only cover the particular states at issue, the court reasoned that partial implementation would “undermine the constitutional imperative of ‘a uniform Rule of Naturalization’ and Congress’s instruction that the ‘immigration laws of the United States should be enforced vigorously and uniformly.’” On February 9, 2017, the Ninth Circuit affirmed the nationwide injunction, thereby denying the government’s emergency motion for a stay of the Washington federal district court’s TRO pending appeal, because the government did not show a likelihood of success on the merits of its appeal, or that failure to enter a stay would cause irreparable injury. On March 6, 2017, however, the President issued EO 13780, which revoked and replaced EO 13769, and established revised restrictions on entry for nationals of the same countries of particular concern, except Iraq.

Executive Order 13780

On March 6, 2017, the President signed EO 13780, Protecting the Nation from Foreign Terrorist Entry Into the United States, which revoked and replaced EO 13769 and put in place revised visa and refugee entry restrictions, and issued an accompanying memorandum calling for heightened screening and vetting of visa applications and other immigration benefits. In general, sections 2(c) and 6(a) of EO 13780 barred visa travel for nationals of six designated countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days, and all refugee admission for 120 days. On March 15, 2017, sections 2 and 6 of the EO were enjoined on statutory grounds (i.e., based on potential violation of U.S. immigration law) pursuant to the order of the Hawaii federal district court granting the plaintiffs’ motion for a TRO. On March 16, 2017, the Maryland federal district court issued a preliminary injunction barring implementation of visa entry restrictions on a nationwide basis with respect to nationals of the six listed countries.

On May 25, 2017, the Fourth Circuit affirmed the Maryland federal district court’s injunction on constitutional grounds (i.e., based on potential violation of the Establishment Clause of the First Amendment to the U.S. Constitution). On June 12, 2017, the Ninth Circuit generally affirmed the Hawaii federal district court’s ruling, but vacated the district court’s order to the extent it enjoined internal review procedures not burdening individuals outside the Executive Branch, therefore permitting the administration to conduct the internal reviews of visa information needs as directed in the EO. On June 14, 2017, the President issued a memorandum to the Secretaries of State and Homeland Security, Attorney General, and Director of National Intelligence, directing that sections 2 and 6 of EO 13780 were to be implemented 72 hours after all applicable injunctions are lifted or stayed.

On June 26, 2017, the Supreme Court granted, in part, the government’s application to stay the March 15 and 16 injunctions of the Hawaii and Maryland federal district courts, as generally upheld on May 25 and June 12 by the Fourth and Ninth Circuits. The Court explained that the administration may enforce visa and refugee travel restrictions under sections 2 and 6 except with respect to an individual who can “credibly claim a bona fide relationship with a person or entity in the United States.” In the case of a visa or refugee applicant who is the relative of a person in the United States, such foreign national would be exempt from entry restrictions provided the family connection with their U.S. relative meets the “close familial relationship” standard. The Court further explained that a qualifying relationship with a U.S. entity would have to be formal, documented, and formed in the ordinary course, and not for the purpose of evading EO 13780.

On June 29, 2017, the day that implementation of EO 13780 began, the State Department issued guidance providing that a close familial relationship exists for the parents, spouse, children, adult sons or daughters, sons and daughters-in-law, and siblings of a person in the United States, but not for such person’s grandparents, grandchildren, uncles, aunts, nephews, nieces, sisters-in-law, brothers-in-law or other relatives. The State of Hawaii filed a motion with the Hawaii federal district court seeking, among other things, a declaration that the partial injunction in place after the Supreme Court’s ruling prohibited application of travel restrictions to fiancés, grandparents, grandchildren, brothers and sisters in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. On July 13, 2017, the Hawaii federal district court ruled, among other things, that section 2 of the EO, generally barring travel to the United States for nationals of certain countries, does not apply to the grandparents, grandchildren, brothers and sisters in-law, aunts, uncles, nieces, nephews and cousins of persons in the United States, who were initially excluded from the administration’s interpretation of “close family.” The government appealed this decision to the Supreme Court.

On July 19, 2017, the Supreme Court denied the government’s motion seeking further clarification of its June 26 ruling, stayed the Hawaii federal district court’s order to the extent it included refugees covered by a formal assurance from a U.S.-based resettlement agency within the scope of the preliminary injunction, pending appeal to the Ninth Circuit, and left unchanged the district court’s broader formulation of exempt “close family.” On September 7, 2017, the Ninth Circuit upheld the Hawaii federal district court’s definition of close family members who are not to be subjected to travel restrictions, and rejected the government’s argument that refugees who had undergone a stringent review process and been approved by U.S.-based resettlement agencies lack a bona fide relationship to the United States, thus allowing admission of such refugees. On September 11, 2017, the Supreme Court temporarily enjoined aspects of the Hawaii federal district court’s holding that would permit admission of certain refugees with formal assurances from a U.S. resettlement entity. The next day, on September 12, 2017, the Supreme Court indefinitely stayed the Ninth Circuit’s September 7 ruling with respect to refugees covered by a formal assurance, thereby permitting the administration to suspend entry of such refugees.

On September 24, 2017, pursuant to section 2(e) of EO 13780, the President issued Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public Safety Threats, which expanded the scope and duration of visa entry restrictions from six to eight countries, and from a 90-day to an indefinite period for the listed countries. On September 25, 2017, in light of the September 24 proclamation, the Supreme Court directed the parties to file briefs addressing whether, or to what extent, the cases before it regarding EO 13780 are moot. On October 10, 2017, after receiving the parties’ supplemental briefs, the Supreme Court decided that because section 2(c) of EO 13780 expired on September 24, there was no live case or controversy; and without expressing a view on the merits, the Court vacated and remanded the Maryland case to the Fourth Circuit with instructions to dismiss as moot the challenge to EO 13780. On October 24, 2017, consistent with its October 10 ruling, the Supreme Court also vacated and remanded the Hawaii case related to EO 13780 to the Ninth Circuit with instructions to dismiss it as moot. Consequently, after challenges to EO 13780 visa and refugee entry restrictions, as curtailed by the Supreme Court’s ruling of June 26, 2017, were rendered moot, litigation continued with respect to the President’s proclamation of September 24, 2017.

Presidential Proclamation 9645

On September 24, 2017, pursuant to section 2(e) of EO 13780, the President issued Presidential Proclamation 9645 (the Proclamation), Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, which imposes certain conditional restrictions and limitations on entry into the United States of nationals of eight countries—Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen—for an indefinite period. According to the Proclamation, travel restrictions are tailored to each nation’s information sharing and identity management deficiencies based on standard immigration screening and vetting criteria established by the Secretary of Homeland Security, and are to remain in effect until such time as the Secretaries of Homeland Security and State determine that a country provides sufficient information for the United States to assess adequately whether its nationals pose a security or safety threat.

On October 17, 2017, the Hawaii federal district court issued a TRO, on statutory grounds, enjoining on a nationwide basis the implementation and enforcement of travel restrictions provided for under the Proclamation, except with respect to North Korean or Venezuelan nationals. On the same day, the Maryland federal district court granted in part plaintiffs’ motion for preliminary injunction, primarily on constitutional grounds, thereby prohibiting implementation of visa entry restrictions nationwide, except for nationals of North Korea and Venezuela as well as other covered foreign nationals who lack a credible claim of a bona fide relationship with a person or entity in the United States. On October 20, 2017, the Hawaii federal district court converted its October 17 TRO into a preliminary injunction, thereby continuing the nationwide prohibition on enforcement or implementation of the suspension on entry for nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen. The district court did not stay its ruling or hold it in abeyance should an appeal be filed in the Ninth Circuit.

On November 13, 2017, the Ninth Circuit granted, in part, the government’s request for an emergency stay of the Hawaii federal district court’s preliminary injunction, thereby allowing visa entry restrictions to go into effect with respect to the nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen. However, consistent with the Supreme Court’s June 2017 ruling, the court ordered that those with a bone fide relationship to a person or entity in the United States not be subject to such travel restrictions. On November 20, 2017, the government petitioned the Supreme Court for a stay of the preliminary injunction issued by the Hawaii federal district court, pending consideration and disposition of the government’s appeal from that injunction to the Ninth Circuit and, if that court affirms the injunction, pending filing and disposition of a petition for a writ of certiorari and any further proceedings in the Supreme Court.

On November 28, 2017, plaintiffs in the challenge to the Proclamation arising out of Hawaii asked that the Supreme Court deny the government’s request to lift the partial injunction left in place by the Ninth Circuit. On the same day, plaintiffs in the case arising out of Maryland requested that the Supreme Court not grant a stay of the federal district court’s preliminary injunction. In both cases, plaintiffs assert that the more expansive visa entry restrictions violate U.S. immigration law; additionally, for the Maryland case, plaintiffs argue that such restrictions are unconstitutional as a form of discrimination based on national origin.

On December 4, 2017, the Supreme Court issued two orders staying the Maryland and Hawaii federal district courts’ orders of October 17 and 20 that preliminarily enjoined implementation of the Proclamation, pending decisions of the Ninth and Fourth Circuits in the government’s appeals, and of the Supreme Court regarding a petition for a writ of certiorari (if sought). As a result, the Proclamation’s visa entry restrictions were permitted to go into full effect unless and until they are either enjoined by the courts of appeals and a writ of certiorari is not sought thereafter, or the Supreme Court either denies a petition for certiorari (thereby resulting in termination of the Supreme Court’s stay order) or grants such petition followed by a final injunction prohibiting current or future implementation of the Proclamation’s restrictions. The Supreme Court further noted its expectation that the courts of appeals will render decisions “with appropriate dispatch,” in light of both courts having decided to consider their respective cases on an expedited basis. On December 8, 2017, the Department of State announced that it began fully implementing the Proclamation, as permitted by the Supreme Court, at the opening of business at U.S. embassies and consulates overseas.

On December 22, 2017, the Ninth Circuit affirmed in part and vacated in part the Hawaii federal district court’s October 20 order enjoining enforcement of visa entry restrictions under the Proclamation, while limiting the preliminary injunction’s scope to foreign nationals who have a bona fide relationship with a person or entity in the United States. Without reaching plaintiffs’ constitutional claims, the court of appeals concluded that the Proclamation exceeded the scope of authority delegated to the President by Congress under the Immigration and Nationality Act (INA), in particular, sections 202(a)(1)(A) (immigrant visa nondiscrimination) and 212(f) (presidential suspension of, or imposition of restrictions on, alien entry), by deviating from statutory text, legislative history and prior executive practice; not including the requisite finding that entry of certain foreign nationals would be detrimental to U.S. interests; and contravening the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. However, the court stayed its decision, given that the Supreme Court’s December 4 order lifted the federal district courts’ injunctions pending not only review by the courts of appeals, but also “disposition of the Government’s petition for a writ of certiorari, if such writ is sought.”

On January 5, 2018, the government filed a petition for a writ of certiorari seeking review of the December 22, 2017, judgment of the Ninth Circuit which left in place the Hawaii federal district court injunction of the Proclamation’s visa entry restrictions for individuals with bona fide ties to the United States. On January 19, 2018, the Supreme Court granted the government’s certiorari petition and will therefore consider, and issue an opinion on the merits of, the Ninth Circuit’s decision.

On February 15, 2018, the Fourth Circuit affirmed the preliminary injunction granted by the Maryland federal district court on constitutional grounds, but stayed its decision pending the outcome of the Ninth Circuit case before the Supreme Court. The court of appeals found that “laintiffs offer undisputed evidence that the President has openly and often expressed his desire” to bar the entry of Muslims into the United States. Therefore, the court concluded that, in light of the President’s official statements, the Proclamation likely violates the Establishment Clause as it “fails to demonstrate a primarily secular purpose,” and also goes against the basic principle that government is not to act with religious animus.

On February 23, 2018, Fourth Circuit challengers filed a petition for a writ of certiorari seeking for the Supreme Court to consolidate their case with the Court’s ongoing review of the Ninth Circuit decision. These petitioners requested that the Court additionally consider their argument that the preliminary injunction should not have been limited to individuals with a bona fide relationship to a person or entity in the United States. On February 26, 2018, the Supreme Court granted Fourth Circuit petitioners’ motion to expedite consideration of their certiorari petition.

On April 10, 2018, the President issued a proclamation announcing that because Chad has improved its identity-management and information sharing practices sufficiently to meet U.S. baseline security standards, nationals of Chad will again be able to receive visas for travel to the United States.

On June 26, 2018, the Supreme Court held that the President lawfully exercised the broad discretion granted to him under INA § 212(f) (presidential suspension of, or imposition of restrictions on, alien entry), by issuing Proclamation No. 9645, which established nationality-based visa entry restrictions applicable to categories of foreign nationals from eight (now seven) countries for an indefinite period. In addition, while three individual plaintiffs had standing to bring an Establishment Clause challenge to entry restrictions prohibiting their relatives from coming to the United States, the Court found the Proclamation to be legitimate on its face as a way to prevent entry of certain foreign nationals where the government determines there is insufficient information for visa vetting.

As a result of the Supreme Court’s June 26, 2018, decision, which held that the establishment of nationality-based entry restrictions is a lawful exercise of the President’s broad discretion in matters of immigration and national security, the visa entry restrictions imposed on categories of foreign nationals from certain countries pursuant to Presidential Proclamation 9645 continue to be fully implemented , as they have been since the Supreme Court’s December 4, 2017, orders staying the lower courts’ injunctions.

Executive Order 13815

On October 24, 2017, the same day the 120-day suspension of refugee admissions under EO 13780 expired, the President signed EO 13815, Resuming the United States Refugee Admissions program With Enhanced Vetting Capabilities, which resumed USRAP and directed that special measures be applied to certain categories of refugees posing potential threats to the security and welfare of the United States. On December 23, 2017, the Washington federal district court issued a nationwide preliminary injunction on aspects of EO 13815 (and its accompanying memorandum), thus prohibiting the administration from: (1) temporarily suspending admission of refugees from 11 previously identified countries of concern, and reallocating resources from the processing of their applications during the 90-day review period (except for those lacking a bona fide relationship with a person or entity in the United States); and (2) indefinitely barring admission of, and application processing for, all following-to-join refugees.

On January 5, 2018, the Washington federal district court denied the government’s motion for reconsideration of the court’s December 23, 2017, order temporarily halting enforcement of refugee entry restrictions that were to be implemented as part of the resumption of USRAP under the EO. Specifically, the government “ask the court to ‘modify its preliminary injunction to exclude from coverage refugee applicants who seek to establish a on the sole ground that they have received a formal assurance from a resettlement agency.’” In denying the government’s motion for reconsideration, the court relied on the September 7, 2017, decision of the Ninth Circuit which, among other things, rejected the notion that refugees with formal assurances from U.S.-based resettlement agencies do not meet the Supreme Court’s bona fide relationship standard. The court treated this Ninth Circuit ruling as binding precedent given that the Supreme Court’s indefinite stay of September 12 neither vacated the Ninth Circuit’s decision, nor provided any underlying reason(s) that would allow another court to discern its rationale. On January 9, 2018, the Washington federal district court also denied the government’s emergency motion for a stay of the court’s December 23, 2017, preliminary injunction, pending appeal to the Ninth Circuit.

On January 31, 2018, DHS announced additional security measures to prevent exploitation of USRAP. Specifically, these security measures include additional screening for certain nationals of high-risk countries, a more risk-based approach to administering USRAP, and a periodic review and update of the refugee high-risk countries list and selection criteria.

Therefore, as of June 2018, while the administration has announced additional security measures to strengthen the integrity of USRAP, the Washington federal district court’s December 23, 2017, preliminary injunction of EO 13815 continues to: (1) prohibit implementation of the temporary suspension of admission, and reallocation of resources from processing applications, of refugees from 11 previously identified countries of concern; and (2) forbid enforcement of the indefinite bar on entry of following-to-join refugees.

Appendix IV: GAO Contact and Staff Acknowledgements

GAO Contact

Staff Acknowledgements

In addition to the contact named above, Kathryn Bernet (Assistant Director), Colleen Corcoran, Eric Hauswirth, Thomas Lombardi, Amanda Miller, Sasan J. “Jon” Najmi, Erin O’Brien, Garrett Riba, and Dina Shorafa made significant contributions to this report.