Current Vetting Process for Anyone Entering or Re-Entering the U.S. is Extreme… Except for One Really. Big. Gaping. Loophole.
Not unlike defense contractors who have to re-up their security clearance every few years, so do foreigners as they progress from visitor to the U.S. (think of this as “Public Interest” clearance) to student (think of this as Level I Security Clearance), to worker (Level II), to Lawful Permanent Resident (Level III), to U.S. Citizen (Level IV). Each time a foreign national, visa holder and Lawful Permanent Resident exits the United States, he or she undergoes re-inspection wherever they enter the U.S.
Immigration lawyers frequently have no recourse but to file Mandamus Actions in Federal Court to force U.S. Citizenship and Immigration Services to render any decision (positive or negative) on an immigration application that has malingered for years pending background checks.
The vetting process presently includes but is not limited to:
- Full background checks including but not limited to
- FBI Check
- USCIS Check
- DHS Investigation which may include on the ground interviews with neighbors, employers, coworkers, and relatives of the foreign national in the United States
- Department of State Investigation which may include on the ground interviews with neighbors, employers, coworkers, and relatives of the foreign national in the foreigner’s home country
- DNA testing to prove blood relationships
- Global Watch Lists
- Exchange of information with other nations
- Criminal history checks both in the U.S. and abroad including dismissed, expunged and juvenile records
- Medical Examination (the foreign national must strip naked to be be examined and sometimes interrogated by the U.S. Embassy official)
- Psychiatric Evaluation (which sometimes turns into an interrogation)
- Numerous Interrogations conducted by
- Consular Officers at the U.S. Embassy (whose decisions can not be appealed no matter how fallacious they may be)
- Asylum Officers to assess Credible Fear (including of children who are 4 or 5 and don’t understand questions asked of them such as “Do you fear persecution or torture if returned to your home country?”)
- U.S. Citizenship and Immigration Agents (some of whom are not properly trained in forensic interrogation or reporting and improperly elicit and report inaccurate or misleading information)
- Customs and Border Protection Officers (most of whom do not have the proper training, time, and facilities to conduct proper forensic interrogations)
I have successfully challenged portions of the background check resulting in a denial of an immigrant’s otherwise valid application. In one case, a denial was issued based on the results of DNA test administered by an Embassy investigator, the results of which were in direct contradiction to our own independent DNA tests, conducted consistent with U.S. criminal evidentiary standards. The U.S. Embassy DNA test results were poor copies of facsimile documents, not certified originals. Further, the U.S. Lab that supposedly conducted the DNA test could not produce a record of having taken the DNA sample, conducting a DNA analysis, or providing a report to the U.S. Embassy.
In two other cases, the FBI Criminal Database (formerly known as NCIC and now known as NGI) had been manipulated to the detriment of a U.S. Citizen and a long time Lawful Permanent Resident. In the first case a male registered sex offender’s profile was merged with an a U.S. Citizen female’s FBI record by changing his birth date to hers. In the second case, three serious narcotics offenses appearing on my client’s rap sheet for cocaine and barbiturates triggered placement of my client into deportation proceedings. Once my client was in proceedings, the false drug charges disappeared from his FBI record and never reappeared during the three years he was in proceedings.
The Sale of US Citizenship to OFAC Sanctioned Nationals Poses the Greatest National Security Threat to the U.S.
There is one notable exception to the exclusion of an Applicant to the U.S. who fails to pass the extensive background checks. If the foreign national is either individually targeted by the U.S. Office of Financial Asset Control (OFAC) as a person who is blocked from engaging in any financial transactions with the U.S. (OFAC sanctioned) or who is from a Country under OFAC sanction and is an EB-5 Investor Visa Applicant, he or she may apply for an exemption. This OFAC exemption is euphemistically called an OFAC License.
Although an EB-5 Investor may be a Specially Designated National (Click here for the 1,371 pages of SDNs as of January 29, 2017) or from an OFAC sanctioned country, OFAC “frequently” grants exemptions to allow an otherwise prohibited person to buy U.S. Visas for himself and his entire family.
The People’s Republic of China is not an OFAC sanctioned country, despite the fact that all 17 U.S. Intelligence Agencies consider China to be one of the top cyber security threats. In 2016, the Director of the U.S. Center for Cyber & Homeland Security testified that “In reference to any threat vector, a worst-case scenario would combine kinetic and cyber-attacks; and the cyber component would serve as a force multiplier to increase the lethality or impact of the physical attack.”
How is it that China is not an OFAC sanctioned nation despite President Trump’s constant rhetoric decrying China as ” … a country that is ripping off the United States like nobody other than OPEC has ever done before.” Perhaps because a full 86% of all EB-5 funding originates from China? Perhaps because Jared Kushner’s Trump Plaza Apartment Property raised $50 million from mostly Chinese investors using EB-5 funding?
In any case it is certainly fortunate for Chinese Nationals and Americans like Jared Kushner that OFAC frequently grants exemptions. In fact, unlike most immigration applications, an OFAC license can be applied for online with the simple click of a button.
Despite China not being an OFAC Country, it is not uncommon for Chinese applicants to be required to apply for an OFAC exemption and one need only glance at the 1,371 page Specially Designated Nationals list to see Chinese entities ubiquitously referenced throughout the list, irrespective of the SDN’s Nation of Origin.
Friends in High Places
Congressional Leaders like Bob Goodlatte (R – VA 6, Current Chairman of the House Judiciary Committee), Senator Patrick Leahy (D – VA, former President Pro Tempore of the U.S. Senate), Jared Polis (D – CO 2), Darryl Issa (R – CA 49) and Mark Amodei (R – NV 2) are good friends of EB-5 Business Ventures that are deemed too nebulous to qualify for traditional financing and, as such, turn to EB-5 “investors.”
Thou Dost Protest Too Much
Ironically, Bob Goodlatte has vociferously criticized “gaping loopholes” in the immigrant vetting process while simultaneously serving as the most longstanding advocate of these nebulous businesses, some of which come to fruition, many of which do not, and not a few of which are outright fraud schemes.
Click here for an expose on how EB-5 is used to perpetrate fraud schemes even within state governments.
It is indisputable that the EB-5 program enables foreign nationals who would not pass the extensive background checks required of all other applicants for immigration to the U.S. to buy admission to the U.S. for themselves and their entire family. And, it is a special visa indeed – one with a direct path to U.S. Citizenship.
Trump’s ill thought through Muslim Ban is deafeningly silent on foreigners who are individually prohibited from engaging in U.S. financial transactions (Chinese Nationals represent 86% of all EB-5 American Citizenship Purchasers) as well as nationals of OFAC sanctioned countries (Iranians are the second largest group of EB-5 “investors”).