Intelligence Reform and Terrorism Prevention Act 2004 (IRTPA)- Interview Requirement Changes (05/05)

R 181452Z MAY 05
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE
SPECIAL EMBASSY PROGRAM COLLECTIVE
RUEHGB/AMEMBASSY BAGHDAD 8607
RUEHBE/AMEMBASSY BELIZE 1356
RUEHDBU/AMEMBASSY DUSHANBE 0009
RUEHKH/AMEMBASSY KHARTOUM 8929
RUEHTRO/USLO TRIPOLI 2674
BT
UNCLAS SECTION 01 OF 02 STATE 092176

E.O. 12958: N/A
TAGS: CVIS, CMGT
SUBJECT: CABLE NO. 3: INTELLIGENCE REFORM AND TERRORISM
PREVENTION ACT OF 2004 (IRTPA)- INTERVIEW REQUIREMENT
CHANGES

REF: STATE 37325

STATE 00092176  001.2 OF 002

1.  Summary: Section 5301 of the Intelligence Reform and Terrorism Prevention Act (IRTPA) added a new Section 222(h)
to the Immigration and Nationality Act (INA).  Section 222(h) sets out detailed statutory requirements for personal interviews of non-immigrant visa applicants in the INA for the first time.  This new provision is interpreted as advisory with respect to foreign diplomats and officials.  (In other words, the Department's regulations permitting exemptions from interviews for certain diplomats and officials remain in effect - see paragraph 3).  Most of new Section 222(h), as so interpreted, can be implemented through the Department's existing personal appearance regulations and current requirements for fingerprint collection.  Posts must also implement the new interview requirements in paragraph 2, however.  The most significant change is that the consular officer must now interview persons in the same age ranges as persons covered by the biometric collection requirement.  The Department will be modifying the personal appearance regulations at 22 CFR 41.102 and the 9 FAM 41.102 Notes, Procedural Notes, and 9 FAM 41.101 to reflect the statutory changes listed in this cable.  End Summary.

2.  New Requirements: Posts must immediately implement the following requirements for interviews of non-immigrant
applicants:
a.  All NIV applicants who are ages 14 to 79 must be
interviewed unless the alien is eligible for a waiver
of the interview requirement under 22 CFR 41.102(b)(3)
or (b)(4).  (9 FAM 41.102 N2 (3), (4), (5), or (6)
notes and see also paragraph 3 below.)

b.  Any NIV applicant who is not a national or
resident of the country in which he or she is applying
must be interviewed, unless the applicant is eligible
for a waiver of the interview under 22 CFR
41.102(b)(3) or (b)(4).  (9 FAM 41.102 N2 (3) or (4)
notes and see also paragraph 3 below.)

c.  Any NIV applicant who was previously refused a
visa must be interviewed, unless: 1) the visa was
refused temporarily and the refusal was subsequently
overcome; 2) the alien was found inadmissible, but the
inadmissibility was waived; or 3) the applicant is
eligible for a waiver of the interview under 22 CFR
41.102(b)(3) or (b)(4).  (9 FAM 41.102 N2 (3) or (4)
notes and see also paragraph 3 below.)

d.  Any NIV applicant who is listed in CLASS may not
be granted a waiver of interview, unless the alien
would be eligible for a waiver under the requirements
set forth in (c) above.  Thus, for example, an alien
refused a visa under 212(a) but granted a waiver of or
otherwise overcame that ground of inadmissibility
could be granted a waiver of the interview requirement
in connection with a subsequent application, although
that person may continue to be listed in CLASS because
of the underlying ineligibility.

e.  Any NIV applicant who is "from" a country
designated by the Secretary of State as a state
sponsor of terrorism, regardless of age, must be
interviewed, unless the applicant is eligible for a
waiver under 22 CFR 41.102(b)(3) or (4).  (9 FAM
41.102 N2 (3) or (4) notes and see also paragraph 3
below.)  (Guidance on the interpretation of "from" in
03 State 74382 remains in effect.)

f.  New INA 222(h) gives the Secretary of State, not
the consular officer, the statutory authority to waive
interviews in the case of emergent circumstances or in
the national interest.  The Secretary of State may
delegate her authority, however, and the Department's
current regulations operate as such a delegation.
Thus, consular officers may continue to waive
interviews in accordance with 22 CFR 41.102(b)(6) (9
FAM 41.102 N2.2), unless paragraphs b through e above
require the consular officer to interview the NIV
applicant.
STATE 00092176  002.2 OF 002

3.  In his signing statement, the President indicated that the Administration would treat 5301 of IRTPA "as advisory"
to the extent foreign diplomats or foreign officials are involved.  The legislation as enacted otherwise would impermissibly burden the President's constitutional authority to conduct foreign relations.  Therefore, the Department's regulations permitting exemptions from interviews for persons in A-1, A-2, C-2, C-3, G-1, G-2, G-3 G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO 6 classifications, and applicants for diplomatic or officials visas as described in 22 CFR 41.26 and 41.27 (9 FAM 41.102 N2 (3) or (4)), remain in effect.  Consular officers shall apply those  notwithstanding any of the above listed changes.
 
4.  Background on INA 222(h): Section 5301 of IRTPA created section 222(h) of the INA.  Borrowing extensively from the Department's current interim regulations, the new section 222(h) sets out requirements for the non-immigrant interview and the circumstances in which it can be waived. Please click here for IRTPA text. Note, however, that the President in his signing statement made clear that aspects of new section 222(h) would be construed as advisory only.  The above guidance reflects the  Department's interpretation of new section 222(h) in light of the President's signing statement.

5.  Minimize considered.

RICE