Federal oversight of visas and research topics: making sacrifices for security.

The Federal Response to September 11, 2001: Increased Security

As the federal government implements multiple systems aimed at elevating national security by monitoring and regulating the flow of ideas and people into and out of the U.S., the question already is not one of whether these measures will negatively affect the U.S. education and research enterprise, especially in science and technology; but rather to what degree they will do so. As various arms of the nation's homeland security apparatus enact and pursue anti-terrorism policies and practices, researchers, administrators, and educators watch to see how these various measures will affect them. Beyond observation, however, many policies entail practices that require individuals and organizations to increase national security as well. As actions are taken to comply with these mandates, individuals have begun to debate governmental controls and their effect on international exchanges of ideas and people. Much of the argument over security appears to hinge on differences of opinion over the basic ideologies of openness versus protectionism. But, because of September 11, 2001, the stakes for choosing to act or not have risen precipitously.

Probably no one doubted the sincerity expressed by John Marburger, director for the Office of Science and Technology Policy (OSTP), when he addressed the American Association for the Advancement of Science's (AAAS's) 28th Annual Colloquium on Science and Technology (S&T) Policy on April 10, 2003, regarding the state of U.S. science research and education in the face of heightened security. Focusing many of his remarks on the Student and Exchange Visitor Information System (SEVIS), implemented by the Immigration and Naturalization Service (INS) on January 1, 2003, Marburger assured the audience that the Bush Administration "values the contribution foreign scientists and students make to the nation's scientific enterprise, to our economy, and to the appreciation of American values throughout the world" (Marburger 1).

According to Marburger, the Bush Administration maintains that "it is possible to take appropriate precautions against terrorism without inhibiting the numerous relationships with other nations that are essential in today's globalized technical society" (Marburger 1). Marburger's statement implies the inclusion of relationships that develop through research and education activities. Still, frequent reports on SEVIS's implementation indicate potentially harmful effects are only beginning to become evident. Marburger admitted that increased regulation has led to longer waits and potential discouragement, noting that after 9/11, the number of institutions certified to accept foreign students fell from 75,000 (in 2000) to 8,000 (Marburger 3). Clearly, a large decrease in numbers of schools able to accept students and scholars, with even stable numbers of applicants, could contribute to a backlog in processing applicants, since those applicants need to have an institution at which to attend classes or a degree program. Still, Marburger contended that rejection rates for visas have not increased so much as cases submitted for review have skyrocketed, overloading SEVIS and creating applicant backlogs. Another means for monitoring visa applications more closely is "code-named [Visas] MANTIS ... established under section 212 of the Immigration and Nationality Act," whose purpose "is to exclude applicants whom a consular official or, since March 1, the Secretary of Homeland Security, has reasonable grounds to believe intends [sic] to violate or evade laws governing the export of goods, technology, or sensitive information" (Marburger 4). According to Marburger, a recommendation for Visas MANTIS review is based on guidelines accompanying the Technology Alert List (TAL), which State Department officials compile and maintain with the input of other federal agencies which also assist in reviewing cases. As of August 2002, TAL categories were clarified, and cases reviewed under Visas MANTIS dramatically increased:

   In calendar year 2000, about 1,000
   cases were reviewed under [Visas]
   MANTIS, and 2,500 the following year.
   In 2002 the figure jumped to 14,000,
   overloading the system last summer and
   fall. Today the State Department estimates
   that at any given time there are
   about 1,000 visa applications in the
   [Visas] MANTIS review process.
   (Marburger 4)

Herein lies a major component of backlog to which critics have referred when discussing SEVIS, TAL, and other monitoring systems. To understand the systems designed to monitor the flow of individuals and sensitive information, one should remember the context in which these measures were developed and implemented: the September 11, 2001 tragedy, its effect on the American psyche, and the government's attempts to respond to this event.

One focus of this response was the student visa system, and a primary purpose for the legislative responses was to establish greater control over the flow of people, information, and products into and out of the U.S. The magnitude of this undertaking is reflected in the basic logistics pertaining to visa oversight in the U.S. According to Stuart Patt, a State Department spokesman, "Of the 5.8 million visas granted last year [2002], 16 percent went to students" (Giegerich 1), which is the number that roughly equates to the one million referred to by Marburger during his AAAS speech. Among this nearly one million individuals, according to testimony before the House Science Committee, which cited as a source the Institute of International Education (IIE), there were some "582,996 international students [who] attended colleges and universities in the United States in 2002" (Hearing Charter, House Committee on Science). Another IIE study listed the numbers of international researchers in the U.S. at over 86,000 in 2001/2002, up over 6,000 from 2000/2001 (IIE Open Doors 2002 Report).

The USA Patriot Act (Public Law 107-56 enacted on October 26, 2001) mandated the use of a database to monitor this population. In this way, SEVIS, initially a voluntary system, in July became mandatory and all colleges and universities were required to implement it by January 29, 2003 (Hearing Charter, House Science Committee). The implementation date was changed to February 15, 2003, and currently information on all foreign scholars and students must be maintained and updated in SEVIS by August 1, 2003 (Hearing Charter, House Committee on Science). Testifying before the House Science Committee about the implementation of SEVIS and the backlogs of those awaiting processing, David Ward, president of the American Council on Education and chancellor emeritus of the University of Wisconsin at Madison, focused on three areas in which the system was failing: technological flaws, lack of real time access to data, and inadequate training for those affected by the implementation (Testimony of David Ward).

One serious technological flaw of SEVIS cited by a number of critics was corruption of data. Sensitive and confidential data were incorrectly associated with a person and reportedly printed. Moreover, entry of large amounts of data was often unsuccessful. The ability for real time access to data never materialized (Testimony of David Ward). Consequently, critical access to data already entered was often not possible, a crucial problem for students and scholars with time-sensitive appointments or definite periods during which to begin and end their activities. As a result of this inaccessibility of data, at consulates and embassies, foreign students have been and continue to be rejected outright for visas.

According to Ward, solutions to such problems will not come easily. He conservatively estimated new records must be entered at a rate of "250,000 per month," or one million overall, for institutions to meet the August 1, 2003, deadline. Ward predicted that the system would not only fail to accommodate the information surge, but foreign students and scholars, college and university administrators, and immigration offices would become overwhelmed, which would lead to extreme difficulties in complying with the August deadline. Finally, according to federal law, a fee was to be charged for international students who register with SEVIS. No process has been established to levy or collect this fee (Testimony of David Ward).

Other monitoring systems have been criticized as well. For instance, all visas are initially evaluated against the principal database known as CLASS (Consular Lookout and Support System), which matches applicant names against lists derived from the Federal Bureau of Investigation's (FBI's) National Criminal Information Base and other intelligence databases. A match on CLASS leads officials to refer that visa application to the State Department for more review. CLASS not only slows the visa application process by introducing another process but CLASS searches have been slowed because additions by the FBI after 9/11 doubled the number of records to almost 12 million (White and Peterson 1).

Add to these databases the previously mentioned Technology Alert List (TAL), by which the State Department oversees study in major fields of technology transfer (such as chemical and biotechnology engineering and lasers), which have been deemed "sensitive" by the government. The TAL list has grown with the addition of several sub-areas of the biological sciences, community development, environmental planning, geography, urban planning, and housing and landscape architecture (Hearing Charter). If an applicant's research area of interest and country of origin match on TAL (the State Department also maintains a list of "state sponsors of terrorism" that can affect this process), that person's visa request must go through the Visas MANTIS system and State Department scrutiny.

Managed by the State Department, Visas MANTIS was designed to "stem proliferation of weapons of mass destruction and missile delivery systems; to restrain file development of destabilizing conventional military capabilities in certain regions of the world; prevent the transfer of arms and sensitive dual-use items to terrorist states; and maintain U.S. advantages in certain militarily critical technologies" (White and Peterson). The Visas MANTIS system and TAL are thought by many observers to have caused most of the significant delays in visa processing, which as of Fall, 2002, were said to have affected nearly 25,000 applicants (Testimony of David Ward).

The following might explain the delays created by implementation of TAL and Visas MANTIS:

   Many are concerned that the TAL is
   too vague and that the consular officers
   with little or no background in science
   are misapplying the broad categories.
   Others believe that the consular officers
   are using their discretion to err on the
   side of caution, broadly and subjectively
   interpreting State Department policies
   and guidance. Still others have attributed
   delays in processing visas--and their
   denial--to a provision in the 1994
   Foreign Authorization Act, which established
   liability for consular officers who
   approve visas for applicants who commit
   an act of terrorism. Anecdotally, the
   Committee has been informed that applicants
   can expect to wait three to nine
   months for their visa. (Hearing Charter,
   House Science Committee)

Another system for conducting background checks for visas, Visas CONDOR, went into State Department use in January 2002. This program can check an applicant's name in nearly 20 security databases, and as with Visas MANTIS, applicants undergoing a Visas CONDOR clearance must receive a federal status review and ruling. Some critics of this system claim that Visas CONDOR has focused surveillance almost exclusively on Muslim men between the ages of 16 and 45 or those who originate from approximately 26 predominantly Islamic countries (White and Peterson).

Finally, another means for reviewing visa applicants, called I-PASS (Interagency Panel on Advanced Science and Security), is due for implementation in the near future. I-PASS was created in response to the October 2001 Presidential Decision Directive "Combating Terrorism through Immigration Policies." The I-PASS panel, composed of representatives from the major U.S. science agencies, including the State Department, Department of Justice, and the Department of Commerce, are supposed to evaluate the applicant's background, education and training, country of origin, area of study, training or research, and the nature of the work conducted at the college or university as well as the uniqueness of the knowledge, its availability, and the terrorist groups or organizations that wanted to gain access to it. (White and Peterson; Hearing Charter)

Many in academe do not look favorably upon implementation of I-PASS, and in his AAAS presentation Marburger noted that there might be "a potential downside to I-PASS," in that it could add "even more steps to the process without adding value," leading to even greater increases in what he called "wait times." If such delays become part of I-PASS implementation, Marburger stated that it was not the intention of the government to introduce further delays (Marburger 2).

U.S. Academic Community Response to Security Measures 

What might be the longer-term consequences of such complications in the processing of visa applications for U.S. exchange programs for students and scholars? How might the security systems affect the choices individuals make in deciding where to pursue their projects and other research or education activities? How might federal restrictions on access to scientific or technological information, or on who might be allowed to receive support to conduct research on "sensitive" topics, affect where foreign scholars choose to study or work? Some observers are very concerned that delays in visa application processing and restrictions on research topics are already driving the best student and scholar candidates away from the U.S.U.S. critics observing this migration crisis claim that it will weaken the research infrastructure of the U.S. and eventually erode long-term national security.

According to Victor Johnson, associate executive director for public policy at NAFSA Association of International Educators, "foreign students [and scholars] bring important and growing educational benefits to American colleges," adding to student body diversity, providing American students with opportunities to connect with foreigners, and filling "perennially under-enrolled science courses that colleges would otherwise find difficult to offer." In fact, "foreign graduate students provide crucial support for teaching and research, particularly in the sciences." Johnson asserts that U.S. "graduate education could not function without foreign students" (Johnson B7).

That U.S. graduate schools would have to close en masse without foreign student attendance is uncertain, but recent data suggest that foreign student participation and success in science and engineering studies at U.S. institutions continue to advance at rates greater than those of their U.S. student counterparts. Johnson also emphasizes that "[f]oreign students and scholars, who constitute an exceptional reservoir of good will toward" the U.S., might possibly represent the nation's "most under-valued foreign-policy asset" (Johnson B7). According to Johnson, three basic problems, which "taken together, threaten the capacity of [the U.S.] to continue to attract foreign students and scholars: inefficient visa screening, a problem-plagued foreign-student monitoring system, and over zealous enforcement" (Johnson B7).

No data yet exist to determine the negative impact of such problems on foreign student enrollment in U.S. degree programs or foreign scholar pursuit of advanced research in the U.S., since such data will not be available until the year following application processing, and trends will not become apparent until some years thereafter. But, according to Johnson, by the time that such trends are in evidence, the "damage" to U.S. foreign student and scholar exchange programs "will be irreparable" (Johnson B7). Although data do not yet reflect negative trends in foreign student or researcher activity at U.S. institutions in response to regulations, anecdotal evidence suggests that such trends have begun to emerge.

Johnson told the story of Ambassador Kenton Keith, chairman of the Alliance for International Educational and Cultural Exchange, who, in testifying before the Senate Foreign Relations Committee in February 2003, stated that "his alma mater, the University of Kansas, told him 'that undergraduate applications for Fall are down 20 percent, and that it finds good students around the world increasingly looking to Great Britain, Australia, Canada, and New Zealand for higher education'" opportunities. This is so, contends Johnson, because "many in the international scholarly community, both faculty and students, view the U.S. as inhospitable to them" (Johnson B7).

Similar anecdotal evidence of students and scholars' visa problems and their subsequent decision to alter academic career plans has emerged from other sources as well. In one incident, according to the South China Morning Post (Hong Kong), scores of students from mainland China who were already enrolled as students in U.S. colleges and universities could not return to the U.S. after having gone home to visit China. In particular, the report noted, students in science and technology fields came under greatest scrutiny and were delayed longer than others. Before September 11, 2001, such students would have received a re-entry visa in fewer than three days, but in the post-9/11 political climate, obtaining either an initial visa or re-entry visa can take weeks or months. The report concluded by noting that a substantial number of the nearly 63,000 Chinese nationals already in the U.S. as students chose not to leave the country, either to attend professional conferences or to visit their families back in China, for fear that their return to academic programs here would have to be delayed or abandoned. In fact, such delays in obtaining visas "are causing financial problems and splitting families. One M/T nuclear engineering student has been stranded on the mainland because her re-entry visa was denied, while her husband was permitted to go back" (Cheung 4). Developments in other countries seem to offer similar consequences for U.S. colleges and universities, in that nations with predominantly Muslim populations, such as Malaysia and Saudi Arabia, have apparently begun to advise residents not to study in the U.S. (Arnone 1).

Observations coming from U.S. government sources, such as the Secretary of State's science and technology adviser, Norman Neuriter, seem to confirm that a genuine trend has developed regarding students' (and researchers') choices of whether to study in the U.S. or elsewhere. According to Neuriter, the

   best students from abroad are giving
   up on coming into the United States.
   They're going to France. They're going
   to Germany. They're going to Japan. In
   Asia, they're going to China, because it's
   gotten too difficult to come into this
   country to work in scientific fields.
   (Henderson B1)

Similar warnings come from those studying the effects of federal controls over research on what the government deems to be "sensitive" information. Writing in the Summer 2002 edition of Issues in Science and Technology, John Hamre stated that, in the post-September 11, 2001, world, "misplaced and poorly conceived security procedures will provide little security and could potentially cripple the nation's scientific vitality, thereby posing a serious threat" to U.S. national security in the long-term (Hamre 52). As a former deputy secretary at the Department of Defense in the Clinton Administration and as president and CEO of the Center for Strategic and International Studies in Washington, DC, Hamre used both a federal and private perspective by which to view the "tension" between national security and open scientific inquiry. He noted that the "very nature of the scientific enterprise requires open collaboration. The essence of national security is restricted and controlled access to critical information"; however, he claimed that this tension arises not from an incompatibility between science and security, but from "inside the national security community itself" (Hamre 51). Basically, Hamre contends, scientists need to be better informed about national security concerns and trusted to honor them, where these concerns are relevant to the research that takes place. Since openness is, in fact, necessary for genuine advances in the sciences to occur, then to disrupt an open atmosphere is to under-mine inquiry, and perhaps to drive creative minds away from the restrictive environment.

Still, the situation for policymakers, researchers, students, and research administrators is by no means simple. What are unacceptable or acceptable procedures when the stakes for error involve public safety on a scale of September 11, 2001? Most often, those who participate in the research enterprise attempt to conduct their business thoughtfully, idealistically, with no one acting in ways to consciously jeopardize national security. However, as Hamre noted, even while academicians and legislators seek reasoned means by which to advance the ideals of research and education, alongside these concerns the world and its threats grow more complex. "Science has become an increasingly international enterprise," so that "[s]ince the end of the Cold War, [U.S.] security priorities have shifted from a largely bipolar world to an increasingly complex world with asymmetric threats to U.S. interests" (Hamre 53). In response to such threats the "worst thing [the U.S.] can do" is to "throw a smothering blanket of regulation over the entire [research] enterprise and chase away creative scientists" from U.S. institutions (Hamre 54). Yet, in the post-September 11th political climate, "there are a number of efforts to protect and restrict access to scientific information," including "efforts to restrict the activities of foreign nationals, limit the information already in the public domain, expand the use of 'sensitive, unclassified information', broaden enforcement of 'deemed exports', and impose new restrictions on fundamental research" (Hamre 55).

Higher education administrators, in general, and sponsored research administrators, in particular, may find themselves increasingly in this international situation which will require them to use their counseling and diplomatic skills as never before and to develop new administrative procedures. Those who deal directly with foreign students or scholars in exchange programs must be prepared to counsel participants that if they return home for a visit or attend a professional activity outside of the U.S., their re-entry into the U.S. might be delayed or denied. Those working with foreign scholars and students will need to have information fully presented to them, as early as possible, about activities involving foreign visitors, such as conference activities, laboratory or other site visits, and travel for planning grant activities in order to prepare for the possibility that security systems will affect an activity's timeline. Respecting controls on research data topics deemed to be sensitive by the federal government, Sponsored Research Offices (SROs) should get access to updated listings of such topics, in case researchers must obtain specialized clearances to get access to materials or to qualify to apply for funding. Clear, timely communications will become more important than ever in SRO operations, especially when the personnel or research materials involved in a project might be affected by systems designed to protect national security. These communications must span the entire spectrum of those involved in the research and education enterprise including students, researchers, research administrators, and other higher education administrators; governmental agencies tasked to enforce security measures; and legislators whose activities mandate these measures.

References

Arnone, M. (2003, June 19). College groups ask Secretary of State to postpone new interview requirement. The Chronicle of Higher Education. (Electronic version). Retrieved June 23, 2003, from http://chronicle.com/daily/2003/06/2003061901n.htm

Cheung, R. (2003, April 11). U.S. security clampdown leaves mainland students stranded. South China Morning Post [News section], p. 4.

Dealing with foreign students and scholars in the age of terrorism: Visa backlogs and tracking systems: Hearing before the House Committee on Science, 108th Congress, 1st Session (26 March 2003) (testimony of David Ward). Retrieved May 8, 2003, from http://www.house.gov/science/hearings/full03/mar26/charter.htm

Giegerich, S. (2003, June 26). Educators ask the State Department to ease visa restrictions for foreign students. The Atlanta Journal-Constitution. Retrieved June 29, 2003, from http://www.ajc.com/news/content/news/atlantaworld/0603/26visas.html

Hamre, J. (2002). Science and security at risk. Issues in Science and Technology. 18(4), 51-55.

Henderson, D. (2003, February 16). Journals to weigh 'risky' science terror fears censorship debate. The Denver Post. p. B1.

Institute for International Education. Open Doors 2002 Report. Retrieved August 10, 2003, from http://www.opendoors.iienetwork.org/?p=25199

Johnson, V. (2003, April 11). The perils of homeland security: When we hinder foreign students and scholars, we endanger our national security. The Chronicle of Higher Education, 49(31), B7.

Marburger, J. (2003, April 10). [Untitled Keynote Address]. Delivered to the 28th Annual AAAS Science and Technology Policy Colloquium, Washington, DC. Retrieved May 8, 2003, from http://www.ostp.gov/html/jhmAAASvisas.pdf

White, W., & Peterson, L. (2003, April). Visas for visiting scientists and students: Current situation. The Physiologist. 46(2). Retrieved August 15, 2003, from http://www.the-aps.org/publications/tphys/2003html/april03/visas.htm

Daniel T. Riggle

American Association of State Colleges and Universities 

Author's Note: This article grew out of a presentation that the author made at San Diego State University, on April 22-23, 2003, on programs offering support to non-U.S. citizen faculty members at U.S. institutions of higher education. Research performed in preparing for that presentation, the Grants Resource Center's coverage of related events, and discussion of the topic with colleagues became the basis for this article. The author thanks his colleague Jeffrey Lagda, Program Advisor for the Grants Resource Center, for his research on federal government databases and their effects on the education and research communities, without which this article could not have been written. Contact: Daniel T. Riggle, Program Manager, Grants Resource Center, American Association of State Colleges and Universities, 1307 New York Avenue, NW, Fifth Floor, Washington, DC 20005-4701. Ph: [phone]. E-mail: [e-mail]

Dan Riggle began working for the Grants Resource Center (GRC), American Association of State Colleges and Universities (AASCU), as a research assistant in July of 1992, was promoted to program associate in September of 1992, senior program associate, in 1997, and program manager in 2002. Primary responsibilities during this period included providing coverage of federal science funding agencies, the National Science Foundation, U.S. Department of Agriculture, Environmental Protection Agency, the National Academy of Sciences/National Research Council, and at times, the National Aeronautics and Space Administration, Department of Defense, and Department of Energy. He served for nearly five of years as editor of the GRC Bulletin, GRC NIH/NSF Bulletin, and GrantWeek publications, until 2001. At present, as GRC program manager, Dan supervises program staff; coordinates training and professional development activities, and manages team-related activities, in addition to continuing to serve schools in the Western Region and monitor science agencies with two other staff members.