Immigration Attorneys Who Are Distinguished

Part I: Overview of Visa Mantis Security Advisory Opinions

Introduction

In order to prevent sensitive information and technology from “falling into the wrong hands”, the Immigration and Nationality Act has set in place particular laws governing the admissibility of foreign nationals who are engaged in certain activities pertaining to the transfer of technology and information. Section 212(a)(3)(A) of the Immigration and Nationality Act (INA) designates as inadmissible foreign nationals attempting to enter the United States in order to engage in certain illegal activities relating to technology. The purpose of the law is to prevent sensitive technological information that may be used for peaceful and/or military purposes (referred to as “dual-use” technology) from falling into the “wrong hands.” If a Consular Officer (CO) knows or has reason to believe that a visa applicant seeks to engage in illegal transfer or sensitive information or technology, the CO is required to submit a Security Advisory Opinion (SAO) via Visa Mantis to the U.S. Department of State (DOS) before the CO may make a final determination on the visa eligibility of the applicant. This process is often lengthy and can delay an applicant’s travel to the United States.

What is a Visa Mantis Security Advisory Opinion?

Before issuing a visa to a foreign national, Consular Officers must first determine if the applicant is eligible for the particular visa. While COs are proficient in making most of these admissibility determinations, they are not always able to make a determination based on security concerns. Therefore, if a CO knows or has reason to believe an applicant may pose a threat to the security of the United States, the CO must defer to the U.S. DOS in making the determination of the applicant’s eligibility to enter the U.S. based on security-related concerns about the applicant. The CO will submit a SAO request to the DOS via Visa Mantis. The request contains the applicant’s name and biographical information, the facts of the case, the applicant’s response to the CO’s interview questions and the CO’s recommendation of eligibility. When a SAO request is pending, the CO cannot issue a visa until the Coordination Division (CD) of the DOS issues a SAO.

A Security Advisory Opinion is a statement from the CD determining whether the applicant poses a threat to U.S. security. The CD collaborates with several different U.S. agencies to determine if there are any security concerns with the particular applicant. Based on the findings of each agency, the CD will issue a SAO to the CO, which will enable the CO to render a decision on the application.

When is a Security Advisory Opinion Requested?

The Department of State issued the Technical Alert List (TAL), which includes a Critical Fields List (CFL) that is intended to provide guidance to COs in determining what activities may render an applicant inadmissible. The Technology Alert List is not publically available, but many of the critical fields listed on the CFL are known. Here is the latest publically available list:

  • Conventional Munitions
  • Nuclear Technology
  • Rocket Systems
  • Rocket System and Unmanned Air Vehicle (UAV) Subsystems
  • Navigation, Avionics and Flight Control Usable in Rocket Systems and Unmanned Air Vehicles (UAV)
  • Chemical, Biotechnology and Biomedical Engineering
  • Remote Sensing, Imaging and Reconnaissance
  • Advanced Computer/Microelectriconic Technology
  • Materials Technology
  • Information Security
  • Laser and Directed Energy Systems Technology
  • Sensors and Sensor Technology
  • Marine Technology
  • Robotics
  • Urban Planning

COs are advised to determine if the applicant is seeking to enter the United States in order to engage in advanced research or studies or business activity involving any of the fields listed on the CFL and whether there is reason to believe such activity poses a potential security-related concern.

Thus, in making the admissibility determination, the CO will make two decisions. First, the CO will determine if the Applicant will be engaged in business activities involving any of the scientific/technical fields listed in the Critical Fields List of the Technology Alert List. Then, the CO will determine if there is reason to believe the Applicant is coming to the United States solely, incidentally, or principally to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information that could be used for peaceful and/or military aims (“dual-use” technology concerns.

While applicants from any country coming to engage in an activity related to one of the Critical Fields on the CFL may be ineligible, COs will pay particular attention to cases involving nationals of countries on the Department of State's List of State Sponsors of Terrorism or nationals affiliated with entities identified the Export Administration Regulations. A Visa Mantis SAO request is mandatory for nationals of states that sponsor terrorism or who are affiliated with entities on the Export Administration Regulations.

However, Visa Mantis SOAs are not mandatory for all cases involving applicants with scientific and technical backgrounds who will engage in one of the Critical Fields listed on the CFL of the TAL. Information in the public domain (e.g., widely available to the public), and information presented in an academic course generally is not controlled for U.S. technology transfer control purposes. Furthermore, if the Applicant is not a national or employee of a state sponsoring terrorism, as defined by the DOS and the CO finds that there is clearly not a dual-use technology concern, the CO may process the case without seeking a Visa Mantis SAO from the DOS. However, if there is any doubt, the CO must submit a SAO request.

In making this determination, the CO will review the documentation submitted and ask the applicant a series of questions. The CO will also consult the Office of Defense Attaché and the U.S. Customs and Border Protection representatives as to whether a case requires a SAO. The Defense Attaché will decipher the applicant’s responses and documentation and may have follow-up questions about sensitive military and dual-use technology. The CBP representative may have follow-up questions about exporting matters. Thus, presenting evidence to substantiate that there is no dual-use technology threat is essential to increasing the likelihood of being processed by the CO without an SAO.

What is the Wait Time for Visa Mantis SOAs?

The wait time for SAOs varies between two weeks and six months, depending on how complex the case is. The process is often slowed because of numerous false name “hits”, which results in the different agencies receiving information for various people who may have the same name as the applicant. Thus, applicants with common names often experience longer wait times. In addition, predominantly Muslim nations and China, Mexico and India have all experienced longer wait times. While the average wait time falls somewhere between 14 and 30 days, if a security check takes longer the 60 days, applicants or their attorneys are advised to contact the Visa Office Public Inquiries hotline.

Applicants may request for expedited processing in exigent circumstances. This usually includes humanitarian or medical reasons. To request expedited processing, the Applicant should submit an expedite request form from the petitioner, which states the circumstances requiring the applicant’s exigent return to the United States. The request is then either approved or denied by the Chief or Deputy of Coordination in the Visa Office.

To read about strategies for overcoming “dual-use” technology concerns, click here.

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