Nonimmigrant Visas: Outcomes of Applications and Changes in Response to 2017 Executive Actions

Previous attempted and successful terrorist attacks against the United States have raised questions about the security of the U.S. government's process for adjudicating NIVs, which are issued to foreign nationals, such as tourists, business visitors, and students, seeking temporary admission into the United States. For example, the December 2015 shootings in San Bernardino, California, led to concerns about NIV screening and vetting processes because one of the attackers was admitted into the United States under a NIV. In 2017, the President issued executive actions directing agencies to improve visa screening and vetting, and establishing nationality-based visa entry restrictions, which the Supreme Court upheld in June 2018.

GAO was asked to review NIV screening and vetting. This report examines (1) outcomes and characteristics of adjudicated NIV applications from fiscal years 2012 through 2017, and (2) key changes made to the NIV adjudication process in response to executive actions taken in 2017.

GAO analyzed State NIV adjudication data for fiscal years 2012 through 2017, the most recent and complete data available. GAO visited seven consular posts selected based on visa workload and other factors. GAO reviewed relevant executive orders and proclamations, and documents related to implementing these actions.

This is a public version of a sensitive report issued in June 2018. Information that DHS, State, and the Office of the Director of National Intelligence deemed sensitive has been removed.

The total number of nonimmigrant visa (NIV) applications that Department of State (State) consular officers adjudicated annually peaked at about 13.4 million in fiscal year 2016, and decreased by about 880,000 adjudications in fiscal year 2017. NIV adjudications varied by visa group, country of nationality, and refusal reason:

Visa group. From fiscal years 2012 through 2017, about 80 percent of NIV adjudications were for tourists and business visitors. During this time, adjudications for temporary workers increased by about 50 percent and decreased for students and exchange visitors by about 2 percent.

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).

Refusal reason. State data indicate that over this time period, 18 percent of adjudicated applications were refused; more than 90 percent were because the applicant did not qualify for the visa sought, and a small percentage (0.05 percent) were due to terrorism and security-related concerns.

In 2017, two executive orders and a proclamation issued by the President required, among other actions, visa entry restrictions for nationals of certain listed countries of concern, the development of uniform baseline screening and vetting standards, and changes to NIV screening and vetting procedures.

GAO's analysis of State data indicates that, out of the nearly 2.8 million NIV applications refused in fiscal year 2017, 1,338 applications were refused due to visa entry restrictions implemented per the executive actions.

State, the Department of Homeland Security (DHS), and others developed standards for screening and vetting by the U.S. government for all immigration benefits, such as for the requirement for applicants to undergo certain security checks.

Further, State sought and received emergency approval from the Office of Management and Budget in May 2017 to develop a new form to collect additional information from some visa applicants, such as email addresses and social media handles.

Key Visa Adjudication Process Terms  Screening: Reviewing visa application  information for matches to derogatory  information in relevant databases.  Vetting: Researching and investigating  screened applicants with possible matches in  those databases or based on other criteria. had been fragmented across several U.S. government databases.  Federal agencies have reported that they have taken actions to address  these weaknesses in the security of the NIV process. Further, recent  events have also highlighted the increased threat of one group of high- risk individuals, namely foreign fighters—individuals who leave home,  travel abroad to terrorist safe havens, and join or assist violent extremist  groups. Beginning in calendar year 2017, the President issued executive  actions aimed at improving the screening and vetting protocols and  procedures associated with the visa issuance process, including the  imposition of visa entry restrictions for certain categories of foreign  nationals from designated countries.

The Department of State (State) is responsible for the adjudication of NIV  applications, and manages the application process at U.S. embassies  and consulates overseas in coordination with several departments and  agencies. In deciding to issue a visa, State’s consular officers are on the  front line of defense in protecting the United States against potential  terrorists and others whose entry would likely be harmful to U.S. national  interests. Consular officers must balance this security responsibility  against the need to facilitate legitimate travel. Since its establishment, the  Department of Homeland Security (DHS) has had authority to issue  regulations with respect to the issuance and refusal of visas. Other  federal entities, such as the Office of the Director of National  Intelligence’s (ODNI) National Counterterrorism Center (NCTC) and the  Department of Justice’s (DOJ) Federal Bureau of Investigation (FBI), also  contribute to the NIV screening and vetting process by providing  intelligence and information against which applicants are screened,  among other activities.

In light of continued concerns about the security of the visa process, you  asked us to review the NIV screening and vetting process. This report is a  public version of a sensitive report that we issued in June 2018. Our  June 2018 report addressed three objectives, including one describing  NIV screening and vetting processes. DHS, ODNI, and State deemed  some of the information in that report to be Sensitive But Unclassified,  Law Enforcement Sensitive, or For Official Use Only, which must be  protected from public disclosure. Although such sensitive information  appeared throughout the report, the objective on NIV screening and  vetting processes was predominately based on sensitive information.  Consequently, this version only includes information on objectives (1)  outcomes and characteristics of adjudicated NIV applications from fiscal  years 2012 through 2017, and (2) key changes to the NIV screening and  vetting process in response to executive actions taken in calendar year  2017 and related guidance.

To identify outcomes and characteristics of adjudicated NIV applications  from fiscal years 2012 through 2017, we analyzed State NIV data for  fiscal years 2012 through 2017—the most recently available full year  data. The data fields we analyzed included month and year of  adjudication; type of NIV; location of application; applicant nationality;  outcome of application (e.g., issuance and refusal); and, if applicable,  reason for refusal. To assess the reliability of these data, we interviewed  State officials who use and maintain the data and checked the data for  missing information, outliers, and obvious errors, among other actions.  On the basis of these steps, we determined that the data were sufficiently  reliable for the purposes of our reporting objectives, including providing  summary statistics on NIV adjudications, issuances, and refusal reasons.

To assist in our analysis of NIV data, we placed the majority of NIVs into  one of seven groups (e.g., tourists and business visitors). We developed  the seven groups of related NIVs based on the purpose of the NIV and its  eligibility criteria as defined in statute and as described by State and DHS  documentation, among other factors. Similarly, to assist in our analysis  of the grounds upon which NIVs were refused, we grouped the grounds  for refusal into one of seven categories (e.g., immigration-related  ineligibility). We developed the seven categories based on the reason  for refusal as described in statute and in State documentation. We shared  our NIV groups and refusal categories with State officials, who stated that  our categories were generally appropriate for the analysis we conducted.

To identify key changes to the NIV screening and vetting process in  response to executive actions taken in calendar year 2017 and related  guidance, we reviewed executive actions taken in calendar year 2017  relevant to NIV screening and vetting, including Executive Order 13769,  Executive Order 13780, and Presidential Proclamation 9645. We also  reviewed State and DHS guidance, the Immigration and Nationality Act  (INA), standard operating procedures, and documentation related to  implementing requirements in the executive actions, and we interviewed  State and DHS headquarters officials on their efforts to implement these  requirements. We conducted site visits to seven consular posts to  observe NIV screening and vetting operations and interview State, DHS,  and DOJ officials implementing the new requirements from March through  May 2017. We selected these posts on the basis of their relatively high  visa workloads; State and DHS data on the percentage of NIV applicants  that potentially matched to derogatory information in fiscal year 2016; and  geographic distribution to help account for variations in visa applicant  populations and potential threats that consular officials encounter in  different locations. Further, we visited posts that also had DHS’s Visa  Security Program, which provides an additional level of NIV screening  and vetting by deploying agents to certain posts overseas to work with  consular officers and review NIV applications. Our observations from  these site visits are illustrative and provide insights about NIV operations,  but are not generalizable to all posts. Further, we analyzed State’s fiscal  year 2017 NIV adjudication and refusal data to identify NIV applications  that were refused solely due to visa entry restrictions implemented in  accordance with the executive actions.

The performance audit upon which this report is based was conducted  from November 2016 to June 2018 in accordance with generally accepted  government auditing standards. Those standards require that we plan  and perform the audit to obtain sufficient, appropriate, evidence to provide  a reasonable basis for our findings and conclusions based on our audit  objectives. We believe that the evidence obtained provides a reasonable  basis for our findings and conclusions based on our audit objectives. We  subsequently worked with DHS, ODNI, and State from June to August  2018 to prepare this nonsensitive version of the original sensitive report  for public release. This public version was also prepared in accordance  with these standards.

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.

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.

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.

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

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

● 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)

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

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

● 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.

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

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

● 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.

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

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

● 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.

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

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

● 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.

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

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

● 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)

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

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

● 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)

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

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.

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.

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.

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

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.

Nonimmigrant visas (NIV) are issued to foreign tourists, students, and others seeking temporary admission to the United States.

In 2017, the President restricted issuance of visas for people from certain countries and called for changes to NIV screening and vetting procedures.

State Department data indicated that about 2.8 million NIV applications were refused in fiscal year 2017. We found that over 90% were because the applicant did not qualify for the visa, and 1,338 were refused due to the President's visa entry restrictions.