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"Comment on 22 CFR Part 41 [Public Notice 4393] Documentation of Nonimmigrants Under the Immigration and Nationality Act, As Amended; Personal Appearance"

Submitted by The Alliance for International Educational and Cultural Exchange August 9, 2003

The Alliance for International Educational and Cultural Exchange welcomes the opportunity to comment on the State Department's interim rule concerning the waiver of personal appearance for applicants for nonimmigrant visas.

The Alliance is an association of 68 U.S.-based nongovernmental organizations that conduct exchange and training programs of all types, including academic, high school, and professional exchange programs funded by the U.S. government, and a broad range of privately funded exchanges conducted under the auspices of the State Department's Exchange Visitor Program. Participants in all these programs use J-1 visas for entry into the United States.

The U.S. exchange community supports efforts to create a visa system that protects our national security and that provides for predictable, efficient handling of legitimate applications that support our national interests. Our national security requires that our visa system accomplish both of these important tasks. In its public comments and on a new website, the State Department has consistently supported this duality of tasks, encapsulated on a new State website with the phrase, 'Secure Borders, Open Doors'.

The need to find the right balance between security and openness has been stated clearly by senior administration officials, as well as by distinguished members of Congress. Secretary of State Colin Powell asserted in a March 26 hearing before the Commerce, Justice, State Appropriations Subcommittee, "We can't win the public diplomacy argument if people think they can't come here...We must be the most welcoming nation we can be…We've got to be sensible and find the balance." When summarizing the problems that have occurred for universities as a result of changes implemented hastily after September 11, Secretary of Homeland Security Tom Ridge noted in a speech before the Association of American Universities: "There has been, I think, a notion that we need to do it quickly rather than to do it right…I assure you we're going to try to do a lot better job working with you under the time limits that are imposed to avoid these kinds of problems in the future."

We are concerned about the difficulty of maintaining the right balance under the Department of State's new policy, announced in a worldwide cable May 21 and codified in an interim final regulation published July 7, to strictly limit the waiver of personal appearance for nonimmigrant applicants.

We fear that without additional resources - including both staff and space - State will not be able to successfully implement the new regulation without significant delays and disruptions for exchange participants. Moreover, the new regulation reverses the long-standing State Department practice of allowing ambassadors and their staffs to make the crucial on-the-ground judgments about which applicants need to be interviewed.

On May 2, the Alliance and NAFSA: Association of International Educators wrote to Secretaries Powell and Ridge to recommend steps to ensure that the visa screening process was streamlined in time to avoid a recurrence of last year's difficulties when hundreds of students and scholars were unable to enter or return for the fall semester. On June 17, the heads of four leading higher education associations followed with their own letter to Secretary Powell.

That letter, sent by the American Council on Education, the Association of American Universities, the National Association of State Universities and Land Grant Colleges, and the Council of Graduate Schools states: "We strongly urge that implementation of the new visa interview requirement be delayed until such time as sufficient resources are available to meet the increased volume of visa interviews, and that it be phased in gradually by country and security risk, rather than all at once." In its June 23 editorial, the New York Times called these "good suggestions", and we fully concur.

This summer, before the new interview policy takes effect on August 1, we have already seen significant delays in visa processing for summer exchange visitors at our posts abroad. The advent of the Student and Exchange Visitor Information System (SEVIS) has imposed new burdens on consular sections, as well as on exchange sponsors and academic institutions. This has significantly slowed the visa adjudication process this summer, even though the mandated increase in interviewing has not yet taken effect.

With delays like this even without interviewing, the American exchange and higher education community is deeply concerned about the impact on exchange programs and academic mobility when mandatory interviewing takes effect August 1. Delays will seriously and adversely affect American higher education, schools, nongovernmental organizations, and businesses that host exchange participants.

And most important, delays will inhibit the programs from serving our broad national interests in building mutual trust, understanding, and respect between Americans and the peoples of the world.

We believe it is crucial to underline this point: that the trade-off we face is not between security on the one hand and exchanges on the other. In fact, educational and cultural exchange programs have always enhanced our nation's foreign policy and security objectives. America's leadership in the global age and our effectiveness in waging the war on terrorism depend on the strength of our ties with and knowledge of the world. Far from threatening our security, openness to educational and cultural exchanges is crucial to ensuring that security, by establishing common ground for cooperation between nations and fostering mutual understanding and respect. We do not protect our nation's security by closing our borders; we diminish it. Through our full range of exchange and international education programs, we must continue to welcome future generations of world leaders to the United States. The opportunity to engage with them remains one of our most important foreign policy assets.

We appreciate the Department of State's recent instruction to its consular posts to give priority to student, scholar, and researcher applications, given the approach of the fall semester. We hope this will help more of these applications be processed expeditiously, and thus facilitate the timely arrival of a higher percentage of these students and exchange visitors. We encourage State to use this approach of establishing seasonal priorities in other exchange categories, to alleviate backlogs in traditional periods of high demand.

We are particularly concerned that our embassies around the world will no longer have discretion to make decisions about who must be interviewed. Our professional foreign service, expert in foreign languages and cultures, is charged with analyzing the political, economic, and social climate in countries around the world, and with advancing American interests. Our diplomats are in the best position to assess the need for face-to-face interviews, and traditional State Department practice has recognized that reality.

The new regulation removes this task from those best equipped to perform it, and places the burden on Washington. A December 2002 report on the visa system by State Department's Inspector General recommended that each U.S. embassy develop a personal appearance waiver program, approved by the ambassador, and that the plan be approved in Washington by the appropriate regional bureau and the Bureau of Consular Affairs. We urge the Department to adopt the Inspector General's suggestion, and to allow our embassies to develop plans for visa interviewing based on their expertise regarding the local environments.

In circumstances where available consular resources clearly do not match the task at hand, a one-size-fits-all approach to visa adjudication is not likely to serve the nation's interests. Echoing the recommendations of the higher education associations and the New York Times, we urge the State Department to phase in the interview process, concentrating first on those countries and applicants likely to pose the most serious risks.

In addition, we urge the Department to take the following steps:

• To amend the Foreign Affairs Manual (FAM) requirement to allow U.S. embassies to accept and adjudicate applications and to issue visas 180 days in advance of program start dates. This change would alleviate pressure on consular sections during busy seasons by spreading the workload more evenly through the year, benefiting our embassies as well as sponsors, participants, and host institutions and employers in the United States. Early issuance will add predictability to the visa process at no cost to our security. Under SEVIS requirements, no participant may enter the U.S. more than 30 days in advance of his/her program start date.


• To instruct all consular posts to interview and adjudicate cases for applicants in exchange programs such as summer work/travel, camp counselor, and au pair without final placements. Such a procedure would allow the Department and its overseas posts to take full advantage of the early issuance policy proposed above. Through the Exchange Visitor Program regulations and required reporting, sponsors are fully accountable to the Department's Bureau of Educational and Cultural Affairs for arranging appropriate placements, and SEVIS prohibits exchange visitors from entering the U.S. more than 30 days in advance of their program dates.

The Alliance fully supports the Department of State in its efforts to strengthen its consular function. We are concerned, however, that in its new rule concerning waiver of personal appearance the Department has set for itself a task that cannot be accomplished effectively with current resources. A strong visa process makes an important contribution to our national security, and it should be funded appropriately.

As it has in the past, the Alliance will continue to advocate for increased resources for consular affairs. In the meantime, we urge the Department to phase in the interview requirement, to return more discretion to individual embassies, and to adopt the procedural changes recommended herein to minimize the negative impact of significantly increased interviewing.

We would welcome the opportunity to discuss these recommendations further with the Department, to provide additional perspectives, or to respond to any questions.