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The Evolving Visa and Border Regime

Since Trump came into office, questions have swirled around U.S. visa and border policy. What’s changed so far, what hasn’t, and what does it all mean for higher education?

April 12, 2017
 
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President Trump has said he wants “extreme vetting” and ideological testing of visa applicants. What will that look like, exactly? As American colleges wait to hear whether accepted applicants will take up their admission offers for the fall, what can they expect students who are coming from other countries to encounter when they apply for visas and when they show up at border security checkpoints at U.S. airports?

A lot remains in flux. But here’s what we know so far about what’s changed and what hasn’t, and the likely effects of the government's moves to strengthen screening processes on the ability of American colleges to attract international students. At issue are not just changes in actual practices or protocols but also what some say are widespread perceptions that the U.S. has grown less welcoming, fueled in part by the Trump administration's temporarily halted travel ban and the crackdown on illegal immigration.

‘Extreme Vetting’ -- What Could It Look Like?

Trump’s ban on entry into the U.S. for nationals of six Muslim-majority countries -- Iran, Libya, Somalia, Sudan, Syria and Yemen -- received widespread condemnation from higher education organizations and has been temporarily blocked by federal judges. But other parts of Trump’s March 6 executive order -- “Protecting the Nation From Foreign Terrorist Entry Into the United States” -- have not been enjoined by the courts and remain in effect.

One provision of the order -- which, per its title, is framed as intended to prevent the entry of would-be terrorists -- calls for the development of new screening and vetting procedures for “all immigration programs.” The order directs the secretaries of Homeland Security and State, the attorney general and the director of national intelligence to develop “a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid or support any kind of violent, criminal or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.”

That’s as specific as it gets. But The Wall Street Journal reported last week that the administration is considering “far-reaching steps” for vetting that could include requiring foreign nationals who want to visit the U.S. to disclose contacts on their cell phones, their social media passwords and financial records -- some financial records showing proof of funding sources are already required for student visas -- and to answer ideological questions about things like how they view the role of women in society and what they think of so-called honor killings. More generally, the administration wants to subject more visa applicants to extra scrutiny and increase the length of required interviews. Such changes, The Wall Street Journal reported, could potentially apply to people from all over the world, including countries allied with the U.S., like Australia, France, Japan, Germany and the United Kingdom.

When asked, an official at the State Department did not comment on the Wall Street Journal article other than to say that current visa application forms do not request information on social media profiles and that "consular officers have broad discretion to request information they believe is needed to assess applicants’ visa eligibility during the visa adjudication process." The official also said that security screening procedures are the same for immigrant and nonimmigrant visas -- the latter being the types of visas on which international students and scholars typically travel.

But U.S. Senator Claire McCaskill grilled Secretary of Homeland Security John Kelly -- whose agency controls entry into the country -- about the article at an April 5 hearing held by the Senate Homeland Security and Governmental Affairs Committee. McCaskill, a Missouri senator and the ranking Democratic member on the committee, questioned the effectiveness of the proposed methods in catching would-be terrorists. "If they know we’re going to look at their phones and they know we're going to ask them questions about their ideology, they’re going to get rid of their phones, and guess what they're going to do on ideology? They’re going to lie," she said.

McCaskill called the described changes "un-American" and damaging to perceptions of the U.S. worldwide. “Every ambassador in Washington read this article in The Wall Street Journal yesterday, and every ambassador in Washington called back to their country and said, ‘Listen to this, they’re going to start asking people for their social media passwords and about their ideology in America,’” McCaskill said at the hearing. “That is incredibly damaging, and all the bad guys are going to, like, just lie. I don’t get how we get anything out of it -- except damage.”

Kelly did not directly answer McCaskill’s question on whether the Wall Street Journal article is accurate, although he said that the ideological questions quoted in the newspaper are not the types of questions he thought would be used in secondary questioning of incoming travelers. (Just to underscore the process, however, the Journal reported that the Trump administration is considering asking those questions during the visa application process -- a process that's controlled by the State Department, not Homeland Security, and which happens well before travelers ever arrive at American airports.)

Kelly said that the Homeland Security department is not routinely using these kinds of screening methods. “We will go to those questions, or request social media -- and I’m talking right now about at our airports and ports of entry -- we’ll go in that direction when the professionals at the counter decide that there’s a reason to go in that direction, but the vast majority of people will not be questioned in that way. It’s just like the vast majority of people that come in the country, foreigners and, for that matter, American citizens, we don’t go into their luggage and inspect their luggage. It’s the same kind of thing. We will do it when we think there’s a reason to do it,” he said.

Kelly also answered questions during the hearing about his agency's use of electronic device searches, a method that has come under increasing scrutiny in recent months. Kelly estimated that about “one half of 1 percent” of travelers to the U.S., predominantly foreign nationals, might be subjected to searches of electronic devices, and said the method has been successfully used to identify possessors of child pornography. Kelly also described in some detail a case in which an electronic device search was used to identify an individual with connections to suspected terrorist plotters.

“We had an individual traveling here from a Middle Eastern country. During the process -- the profiling, if you will -- there was something not quite right about him, matching up with what he was telling about his past, where he comes from, his passport. So we put him in secondary; they ran his contact numbers out of his telephone and he was in contact with several -- I won’t go into it too deeply -- but several well-known terrorist traffickers and organizers in the Middle East. They then looked at the pictures and saw a full display of, you know, gay men being thrown off of roofs and people being beheaded and all that. Now, we had no reason to hold him because he was not in any database, so we sent him back,” Kelly said.

Visa Vetting -- What's Changed So Far?

The Wall Street Journal was reporting on possible future changes to visa vetting procedures. But some changes to visa screening procedures have already been ordered. Internal State Department cables from March reported on by Reuters and The New York Times instruct consular chiefs worldwide to appoint working groups to “develop a list of criteria identifying sets of post-applicant populations warranting increased scrutiny” and suggests a list of questions consular officers could ask applicants flagged for extra screening. These include questions about their employment and travel histories, prior passport numbers, addresses, and phone numbers, and email addresses and social media handles. The memos also direct a “mandatory social media check” for any visa applicants who were present in a territory at a time it was controlled by the Islamic State.

A State Department official declined to comment on the cables but addressed the presidential directive ordering enhanced screening and vetting more generally. “In accordance with the presidential memorandum signed on March 6, 2017, which addresses, among other things, enhanced screening and vetting of applications for visas, we immediately took steps to further strengthen our already strong screening and vetting procedures, which include fingerprint, facial recognition and interagency counterterrorism screening, in order to more effectively identify individuals who could pose a threat to the United States. We are working with the Departments of Homeland Security and Justice to implement these steps in compliance with all relevant court orders,” the official said.

Immigration lawyers say that the instructions outlined in the memos, combined with another, less remarked-upon provision of Trump’s March 6 executive order that suspended the visa interview waiver program, could lead to increased backlogs and wait times. Previously, under the interview waiver program, some international students, for example, were able to skip a required in-person interview at the U.S. consulate when it came time to renew their visas.

“Generally, it’s going to take longer to get visas under the procedures outlined in the State Department cables,” said Stephen Yale-Loehr, an immigration lawyer and professor of practice at Cornell University. “More people are going to have to be interviewed in the first place, because they have suspended the visa interview waiver program, and the background checks are going to take longer. More security advisory opinions will be required from people, which means that even after a visa interview, the consulates will have to send people’s information off to other posts or to Washington, D.C., for background checks, which will slow down the process.” He added that the time involved in social media checks will leave less time for interviews.

In short, Yale-Loehr said, “it’s going to be harder for academics and others to plan how long it will take them to get the visas they need.” Incoming international students, he said, should “apply as soon as possible for their F student visa, since we really do not know how much longer it’s going to take on average to get an F student visa this summer than it has in the past.”

Experts emphasize how much remains unknown at this point. “Right now, it’s too soon to see full effects of these visa vetting policy changes,” said Rachel Banks, the director for public policy for NAFSA: Association of International Educators. “Where we likely will begin to see any effects is starting in the summer months, which is high season for student visa applications at consulates, and going into the fall, as international students arrive in the United States to start their course of study. We also may see fewer currently enrolled international students choosing to depart the United States for the summer break, wanting to avoid not being able to return in the fall.”

Banks added that “many school officials are attributing the decrease in applications for next year … to these new procedures and the rhetoric accompanying them.”

Thirty-eight percent of U.S. universities are reporting declines in international applications for the fall, and international student recruitment professionals report “a great deal of concern” from students and their families about visas and their perception “that the climate in the U.S. is now less welcoming to individuals from other countries,” according to a recent survey conducted by five different higher education associations, including NAFSA.

While it’s indeed the case that the majority of universities aren’t seeing declines in international applications, it's notable that those drops are coming after 10 years of steady growth in international enrollments in the U.S. -- and at the same time when many universities in Canada are recording increases in international applications of 20 percent or more.

“I don’t think anyone would disagree with the fact that we want to keep the bad guys out,” said Anastasia Tonello, the first vice president for the American Immigration Lawyers Association and a managing partner with Laura Devine Attorneys in New York City. But she said that “security is at the forefront” already in consular officers’ decisions -- she noted that the visa refusal rate for a place like Yemen, for example, is already high (48.85 percent for tourist visas, according to adjusted State Department statistics) -- and questioned the usefulness of some of the methods being put forward, such as asking for information from applicants on their social media accounts. “My concern is how are we getting this,” she said. “Are we getting this information that we solicit from the applicant, are they telling us all of their log-in names and all of their online identities and, if so, is the bad guy going to tell us the ones they are using to do bad things?”

“There seems to be this … knee-jerk reaction -- let’s do this -- without going through the analysis of is this going to make America safer or are you just creating more work for your consular officers, which is just going to discourage legitimate business and travel to the United States,” Tonello said.

Port of Entry Protocols -- and Perceptions

On the other end of a successful visa application process is arrival at a U.S. airport or other port of entry and the encounter with U.S. Customs and Border Patrol agents there.

CBP statistics do not suggest increases in the number of individuals flagged for secondary inspection this February compared to February 2016, under President Obama’s administration. The number of travelers sent to additional screening did increase slightly, by 0.88 percent, this February compared to the previous February. But at the same time the total number of travelers processed rose by 1.84 percent -- and the number of travelers ultimately denied admission to the U.S. fell significantly, by about 49 percent.

  February 2016 February 2017 Percent Change
Total Number of Travelers Processed by CBP Officers 27,699,715 28,209,602 1.84%
Total Number of Travelers Identified for Additional Screening 887,817 895,628 0.88%
Total Number of Travelers Ultimately Deemed Inadmissible to the U.S. 23,768 12,173 -48.78%

"The statistics are indicative of how CBP officers carry out the important work of enforcing our nation’s laws while facilitating legitimate travel," a CBP spokesperson said.

The data contrast with what Mo Goldman, an immigration lawyer in Tucson, said is the perception of heightened scrutiny at border checkpoints.

"I think it's maybe perception more than reality," Goldman said. "I get it. The undocumented community is freaked out; a lot of people even with green cards and citizenship are worried about traveling internationally in light of some of the rhetoric that’s come out of the White House and the travel ban, and then of course people who are not from those six countries, they're concerned that it could still impact them. All it takes is three or four different incidents to hit the news."

Since February there have been a few high-profile cases of artists or academics being subjected to intense secondary questioning or even detained, prompting PEN America, a writers’ group, in March to issue a statement about the problem of “aggressive interrogations” at the border in which it said, “America’s status as a world-class cultural hub, as a proponent of free thought and lively debate, as a country that celebrates our diversity and welcomes new voices and new ideas from all corners of the world, is crumbling.”

Among the cases PEN highlighted was that of Henry Rousso, a French Holocaust historian originally from Egypt who was traveling to attend a symposium organized by Texas A&M University. Rousso was detained for about 10 hours and nearly sent back to Paris over what seems to have been confusion on the border agent’s part about whether Rousso was allowed to accept an honorarium for a lecture while in the U.S. on a tourist visa (the short answer is that he could).

Rousso wrote about his experience in The Huffington Post: “Even if I had made a mistake, which was not the case, did I deserve such treatment? How can one explain this zeal if not by the concern to fulfill quotas and justify increased controls? That is the situation today in this country. We must now face arbitrariness and incompetence at all levels,” he wrote.

“I think it has a very chilling effect on other scholars,” said Fatma E. Marouf, a law professor and director of the Immigrant Rights Clinic at Texas A&M who helped secure Rousso’s release. “People are more reluctant to come to the U.S. Even if they get in, they don’t want to be held in the airport, detained in long secondary inspections. It just makes it less attractive to come here and give talks. That, in turn, limits the exchange of ideas and the diversity that is so integral to higher education.”

Some are staying away. Thousands of academics signed a petition saying they will boycott conferences in the U.S. after Trump issued his first iteration of the travel ban Jan. 27 (that ban was halted by the courts and subsequently rescinded by the March 6 executive order). Organizers of the International Studies Association’s annual conference, which was held in Baltimore in February, said that a total of 176 participants withdrew citing a reason related to the travel ban. One scholar from the Philippines who did make it to Baltimore and was questioned for two hours upon his arrival in the U.S. -- questions that he said centered around Islam, the subject of his research, and terrorism -- said he was having “second thoughts” about returning to the U.S. for future conferences during the Trump administration.

Safwan M. Masri, an executive vice president at Columbia University charged with overseeing Columbia’s network of eight overseas research centers, shares concerns that some scholars might stay away, to higher education's detriment. A Jordanian-born American citizen, Masri likewise wrote a piece for The Huffington Post after being questioned Feb. 18 upon re-entering the U.S. after a trip to Columbia’s center in Mumbai. “Far more sinister than travel bans and policy changes is the undeclared, and now seemingly common, practice of profiling on the basis of religion and origin,” wrote Masri, who said he was asked a series of questions about his ties to Jordan and about his work and the purpose of Columbia’s global centers. “Though never made explicit,” he wrote, “the unmistakable subtext of the interrogation was to vet on the basis of Muslim and Arab affiliation.”

“The woman who interviewed me could not have been nicer,” Masri said in an interview. “I almost felt like she was kind of apologetic, and I was very confident and comfortable because I was a U.S. citizen. But when I asked her what triggered this, why are you asking this or that, the answers she gave me just didn’t make sense.”

“As an experience, as a transaction, it was not painful, but what it left me with was very painful,” continued Masri, who’s been cleared as a low-risk traveler under the government’s Global Entry program. “I felt unsettled and uncertain and I was going to take another trip in a few days and I was nervous about what happened. But I felt insulted most of all. I felt my Americanness was being questioned.” When he got home, he found a summons for jury duty in the mail.

“These kinds of incidents serve as a deterrent to people who might otherwise travel to the United States,” Masri said. “Even before I published my piece, I was hearing from people who feel that if they don’t have an absolutely necessary purpose for a trip to the United States, they were not going to travel, and that’s because of the general climate that they feel we have in the United States today. We do have some data on increased violence and profiling of people on the basis of their ethnicity and religion -- what we have seen, for example, take place in Kansas, the two Indians who were taken for Iranians and were ambushed. Stories like this get around. But even without those anecdotes, there is a general sense in the rest of the world that the United States under Trump is not a welcoming place.”

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