Working in a “Critical Field” as a Cause for Visa Delays

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In the years since 9/11, there have been ongoing efforts to improve U.S. security and make the visa processing system more efficient. Several government agencies have teamed up to create new all-encompassing databases–and have been engaging in a continuous review of immigration and visa issuing practices. Along with new requirements in the system, such as interviews and other security checks, these things have caused ever-increasing delays in visa processing and issuing. Though apparently unexpected, this result is not surprising. However, one issue in all of this stands out as having the potential to cause much unforeseen and bewildering difficulty: the Technology Alert List (TAL) and export control.

The TAL has historically been a way for the U.S. to keep track of technologies developed within its borders that could be (violently) used against it–and to prevent them from falling into the wrong hands. The current TAL is in fact two lists in one: one is the list of “state sponsors of terrorism,” and the other is the Critical Fields List (CFL). The CFL is an extensive set of fields of study and industry, each capable of producing what are known as “dual-use” technologies. The first use of a dual-use technology is for standard economic purposes, and the second is for war. The CFL consists of

Conventional Munitions;
Nuclear Technology;
Rocket Systems;
Chemical, Biotechnology and Biomedical Engineering;
Robotics;
Remote Sensing, Imaging and Reconnaissance;
Advanced Computer/Micro-Electronic Technology;
Materials Technology;
Information Security;
Laser and Directed Energy Systems Technology;
Sensors and Sensor Technology;
Marine Technology; and Urban Planning.

At this point, the reader may be wondering how this can cause issues with visa processing. Considered alone, the CFL’s connection to it is unclear. Export Control is the missing link in all of this. Products developed in the U.S., while sometimes not government property, always fall under its commerce authority. The government regulates them, and this regulation includes deciding whether foreign workers can come into its borders to work with these products.

When a foreign national (FN) starts the process of obtaining a non-immigrant visa at a U.S. Consulate or Embassy, the officers have the ability to check to see if the applicant’s U.S. employment plans involve anything that might be dual-use. This is because they have the duty to check for legal inadmissibility to the U.S., and grounds for inadmissibility include an FN’s attempting “to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information.” This clearly includes the CFL. So, if the FN’s plans in the United States involve something on the CFL, consular officers will undergo their procedure for when an FN is suspected of being inadmissible. This procedure is to create a Security Advisory Opinion (SAO).

In theory, this is only done when necessary. In practice, their policy is to always initiate an SAO unless the consular officers are 100% sure that the immigrant’s plans in the U.S. aren’t CFL related. If there is one created, the processing time for a temporary worker visa normally increases by at least 3-6 months, if the case isn’t outright denied. Further, when the delay is due to an SAO, there is almost no way to tell. The only thing one can do about this is to take steps to avoid an SAO in the first place.

The first step is to know whether a non-immigrant’s work in the U.S. could be construed as CFL related. A good way to evaluate this is to do the same thing as consular officers: just assume that it is (CFL related) unless there is a 100% chance that it is not. If it is, then the employer is advised to submit a report of technologies that the FN will be working with to the Department of Commerce, asking if they have dual-use purposes. (Not all things in the CFL are dual-use, after all.) Hopefully the answer is no, but if the answer is yes, options dwindle–but aren’t exhausted yet.

If an FN with a pending visa has a CFL dual-use issue, additional evidence may be required to swing the case in his or her favor. It is advised to gather as much detail as possible on what the FN will be doing and to find U.S. sources to back this up as industry standard. This information could be brought to a visa interview and/or be included in the petition. Also, it would be very helpful to show that the dual-use aspects of the technologies the FN will be working with are already public information or able to be found in an academic course. If this is possible, then it can be shown that giving the FN trouble over CFL issues won’t do the U.S. any good.