The Technology Alert List, Visas Mantis and Export Control: Frequently Asked Questions

by Tien-Li Loke Walsh *

Since 9/11, numerous measures designed to enhance security and streamline visa processing have been implemented to identify and eliminate vulnerabilities in the visa processing system. Various government agencies, including the Department of Homeland Security, the Department of State, the Central Intelligence Agency, the Federal Bureau of Investigation, the National Security Agency and others have consulted in an extensive and ongoing review of visa issuing procedures. These efforts at data sharing have created increasingly sophisticated government databases. These recent initiatives, together with the introduction of mandatory visa interviews, intensified security check measures, and the recently updated and expanded Technology Alert List have resulted in unexpected and lengthy delays in visa issuance.[1] To further complicate matters, the focus on foreign nationals and their activities in the United States has generated significant government investigation and enforcement in the overlapping issues of export control, bringing these issues to the forefront of immigration practice. This article provides some general guidance to these emerging trends.

What is the Technology Alert List?

The Technology Alert List (TAL) was originally designed to help maintain technological superiority over the Warsaw Pact and was targeted at individuals from the Soviet Union and other Communist countries. In 1996, the TAL was revised to broaden its focus and reflect more accurately current laws restricting or prohibiting the export of goods and technologies. These laws are designed to further four important security objectives: (i) Stem the proliferation of weapons of mass destruction and missile delivery systems; (ii) Restrain the development of destabilizing conventional military capabilities in certain regions of the world; (iii) Prevent the transfer of arms and sensitive dual-use items to terrorist states; and (iv) Maintain U.S. advantages in certain militarily critical technologies.

The TAL is now designed to assist in efforts to prevent the transfer of sensitive technology or material, (e.g., controlled nuclear or biotechnical information), from falling into the wrong hands and being used by hostile individuals or regimes. The increasing sophistication of off-the-shelf technology, dual-use technologies (i.e., technologies with both commercial and military applications), allegations of insufficient information about controls on foreign students in the United States, recent tensions in the Middle East and the September 11 terrorist attacks combined to renew concern among law enforcement and intelligence communities that controlled U.S. origin goods and information are vulnerable to theft. In August 2002, the DOS significantly updated the TAL and issued a cable providing updated guidance to consular posts on the use of the TAL Visas Mantis security checks. The recently updated TAL, released in March 2003, consists of two parts.

The first part includes a “Critical Fields List” (CFL) of major fields of technology transfer concern, including those subject to export controls for nonproliferation reasons. The CFL is used to assist in the effort to prevent the transfer of sensitive technology or material, particularly dual-use technologies, from falling into the wrong hands and being used by hostile individuals or regimes.

The critical fields list which constitutes the TAL is as follows:

§ Conventional Munitions: technologies associated with warhead and large caliber projectiles, reactive armor and warhead defeat systems, fusing, and arming systems, electronic countermeasures and systems, new or novel explosives and formulations, automated explosive detection methods and equipment;

§ Nuclear Technology: technologies associated with the production and use of nuclear material for both peaceful and military applications, including enrichment of fissile material, reprocessing irradiated nuclear fuel to recover produced plutonium, production of heavy water for moderator material, plutonium, and tritium handling. Also, certain associated technologies related to nuclear physics and/or nuclear engineering, including materials, equipment or technology associated with power reactors, breeder and production reactors, fissile or special nuclear materials, uranium enrichment, including gaseous diffusion, centrifuge, aerodynamic, chemical, Electromagnetic Isotopic Separation (EMIS), Laser Isotope Separation (LIS), spent fuel reprocessing, plutonium, mixed oxide nuclear research Inertial Confinement Fusion (ICF), magnetic confinement fusion, laser fusion, high power lasers, plasma, nuclear fuel fabrication including Mixed Oxide (uranium-plutonium) fuels (MOX), heavy water production, tritium production and use, hardening technology;

§ Rocket Systems (including ballistic missile systems, space launch vehicles and sounding rockets) and Unmanned Air Vehicles (UAV) (including cruise missiles, target drones, and reconnaissance drones): technologies associated with rocket systems and UAV systems—the technology needed to develop a satellite launch vehicle is virtually identical to that needed to build a ballistic missile;

§ Rocket System and Unmanned Air Vehicle (UAV) Subsystems: Propulsion technologies include solid rocket motor stages, and liquid propellant engines. Other critical subsystems include re-entry vehicles, guidance sets, thrust vector controls and warhead safing, arming and fusing. Many of these technologies are dual-use and include liquid and solid rocket propulsion systems, missile propulsion and systems integration, individual rocket stages or staging/separation mechanism, aerospace thermal (such as super alloys) and high-performance structures, propulsion systems test facilities.

§ Navigation, Avionics and Flight Control Useable in Rocket Systems and Unmanned Air Vehicles (UAV): These capabilities directly determine the delivery accuracy and lethality of both unguided and guided weapons. The long-term costs to design, build, and apply these technologies have been a limiting proliferation factor. Technologies include those associated with internal navigation systems, tracking and terminal homing devices, accelerometers and gyroscopes, rocket and UAV and flight control systems and global Positioning System (GPS);

§ Chemical, Biotechnology and Biomedical Engineering: technology used to produce chemical and biological weapons is inherently dual-use. The same technologies that could be applied to develop and produce chemical and biological weapons are used widely by civilian research laboratories and industry; these technologies are relatively common in many countries. Advanced biotechnology has the potential to support biological weapons research. In the biological area, areas of interest in technologies associated with Aerobiology (study of microorganisms found in the air or in aerosol form), Biochemistry, Pharmacology, Immunology Virology Bacteriology, Mycology, Microbiology, Growth and culturing of microorganisms, Pathology (study of diseases), Toxicology, Study of toxins, Virulence factors, Genetic engineering, recombinant DNA technology, Identification of nucleic acid sequences associated with pathogenecity, Freeze-drying (lyophilization), Fermentation technology, Cross-filtration equipment, High “DOP-rated filters” (e.g., HEPA filters, ULPA filters), Microencapsulation, Aerosol sprayers and technology, aerosol and aerosolization technology, Spray or drum drying technology, Milling equipment or technology intended for the production of micron-sized particles, Technology for eliminating electrostatic charges of small particles, Flight training, Crop-dusting, aerosol dissemination, Unmanned aerial vehicle (UAV) technology, Fuses, detonators, and other munitions technology, Submunitions technology, Computer modeling of dissemination or contagion, Chemical absorption (nuclear-biological-chemical (NBC) protection). In the chemical area, includes Organo-phosphate chemistry, Neurochemistry, Chemical engineering, Chemical separation technology, Pesticide production technology, Pharmaceutical production technology, Chemical separation technology, Toxicology, Pharmacology, Neurology, Immunology, Detection of toxic chemical aerosols, Chemical absorption (Nuclear-Biological-Chemical (NBC) protection), Production of glass-lined steel reactors/vessels, pipes, flanges, and other equipment, Aerosol sprayers and technology, Flight training, Crop-dusting, aerosol dissemination, Unmanned Aerial Vehicle (UAV) technology, Fuses, detonators, and other munitions technology, Submunitions technology, Computer modeling of dissemination;

§ Remote Sensing, Imaging, and Reconnaissance: satellite and aircraft remote sensing technologies are inherently dual-use; increasingly sophisticated technologies can be used for civilian imagery projects or for military and intelligence reconnaissance activities. Drones and remotely piloted vehicles also augment satellite capabilities. Key-word associated technologies include, Remote sensing satellites, High resolution multi-spectral, electro-optical and radar data/imagery, Imagery instruments, cameras, optics, and synthetic aperture radar systems, Ground receiving stations and data/image processing systems, Photogrammetry, Imagery data and information products, Piloted aircraft, Unmanned Air Vehicles (UAV), Remotely-piloted vehicles; and drones;

§ Advanced Computer/Microelectronic Technology: advanced computers and software play a useful (but not necessarily critical) role in the development and deployment of missiles and missile systems, and in the development and production of nuclear weapons. Advanced computer capabilities are also used in over-the-horizon targeting airborne early warning targeting, Electronic Countermeasures (ECM) processors. These technologies are associated with Supercomputing, hybrid computing, Speech processing/recognition systems, Neural networks, Data fusion, Quantum wells, resonant tunneling, Superconductivity, Advance optoelectronics, Acoustic wave devices, Superconducting electron devices, Flash discharge type x-ray systems, Frequency synthesizers, Microcomputer compensated crystal oscillators;

§ Materials Technology: the metallic, ceramic, and composite materials are primarily related to structural functions in aircraft, spacecraft, missiles, undersea vehicles, and propulsion devices. Polymers provide seals and sealants for containment of identified fluids and lubricants for various vehicles and devices. High density graphite is used in missile nosetips, jet vanes, and nozzle throats. Selected specialty materials (i.e., stealth and the performance of these materials) provide critical capabilities that exploit electromagnetic absorption, magnetic, or superconductivity characteristics. These technologies are associated with advanced metals and alloys, Non-composite ceramic materials, Ceramic, cermet, organic and carbon materials, Polymeric materials, Synthetics fluids, Hot isostatic, Densifications, Intermetallic, Organometals, Liquid and solid lubricant, Magnetic metals and superconductive conductors;

§ Information Security: Technologies associated with cryptography and cryptographic systems to ensure secrecy for communications, video, data and related software;

§ Laser and Directed Energy Systems Technology: Lasers have critical military applications, including incorporation in guided ordinance such as laser guided bombs and ranging devices. Directed energy technologies are used to generate electromagnetic radiation or particle beams and to project that energy on a specific target. Kinetic energy technologies are those used to impart a high velocity to a mass and direct it to a target. Directed energy and kinetic energy technologies have potential utility in countering missiles and other applications. Look for technologies associated with Atomic Vapor Laser Isotope Separation (AVLIS), Molecular Laser Isotope Separation (MLIS), High Energy Lasers (HEL) (i.e., laser welders), Low Energy Lasers (LEL), Semiconductor lasers, Free electron lasers, Directed Energy (DE) systems, Kinetic Energy (KE) systems, Particle beam, beam rider, electromagnetic guns, Optoelectronics/electro-optics (Europe), Optical tracking (i.e., target designators), High energy density, High-speed pulse generation, pulsed power, Hypersonic and/or hypervelocity, Magnetohydrodynamics;

§ Sensors and Sensor Technology: Sensors provide real-time information and data, and could provide a significant military advantage in a conflict. Marine acoustics is critical in anti-submarine warfare; gravity meters are essential for missile launch calibration. Includes technologies associated with Marine acoustics, Optical sensors, Night vision devices, image intensification devices, Gravity meters, High speed photographic equipment, Magnetometers;

§ Marine Technology: Marine technologies are often associated with submarines and other deep submersible vessels; propulsion systems designed for undersea use and navigation and quieting systems are associated with reducing detectability and enhancing operations survivability. Includes technologies connected with Submarines and submersibles, Undersea robots, Marine propulsion systems, Signature recognition, Acoustic and non-acoustic detection, Acoustic, wake, radar and magnetic signature reduction, Magnetohydrodynamics, Stirling engines and other air independent propulsion systems;

§ Robotics: Technologies associated with Artificial intelligence, Automation, Computer-controlled machine tools, Pattern recognition technologies;

§ Urban Planning: Expertise in construction or design of systems or technologies necessary to sustain modern urban societies. (PLEASE NOTE: Urban Planning may not fall under the purview of INA §212(a)(3)(a), U.S. technology transfer laws, or any other U.S. law or regulation. However, Urban Planning is a special interest item and posts are requested to refer such visa application requests to CA/VO/L/C for further review.) Technologies/skills include Architecture, Civil engineering, Community development, Environmental planning, Geography, Housing, Landscape architecture, Land use and comprehensive planning, and Urban design.

The second part of the TAL includes the DOS list of designated State Sponsors of Terrorism, currently identified as Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria (“Terrible 7”).[2]

Where can I find the TAL?

The 2003 version of the TAL can be found as part of a Department of State cable, “Using the Technology Alert List: (UNCLAS STATE 147566).[3]

How does the TAL impact foreign nationals?

INA §212(a)(3)(a) renders aliens inadmissible where there is reason to believe they are seeking to enter the United States to violate or evade U.S. laws prohibiting the export of goods, technology, or sensitive information from the United States. Therefore, when a foreign national applies for a nonimmigrant visa at a U.S. consulate or embassy, the post may examine whether an applicant is involved in any dual-use technologies that may fall within a critical field listed on the TAL. If the applicant’s planned activities raise questions of possible ineligibility under INA §212(a)(3)(A), consular officers must submit a security advisory opinion (SAO) in the form of a Visas Mantis check.

How can I tell if my client is subject to the TAL?

The DOS cable “Using the Technology Alert List,” mentioned above, is designed to provide guidance in determining whether a visa applicant’s planned activities in the United States fall under the purview of INA §212(a)(3)(A).

While restrictions on the export of controlled goods and technologies applies to scientific and technical visitors from all countries, the cable reminds posts that technology transfer SAOs are not mandatory for all scientific and technical visitors seeking to engage in one of the critical fields. The cable advises consular officers to determine whether an applicant proposes to engage in advanced (doctoral, postdoctoral, or research scholar) research or studies, or business activity involving any of the scientific/technical fields listed in the Critical Fields List. According to the cable, information in the public domain (e.g., widely available to the public), and information presented in an academic course generally is not controlled for U.S. technology transfer control purposes. If the applicant’s planned activities raise questions of possible ineligibility under INA §212(a)(3)(A), consular officers must submit an SAO in the form of a Visas Mantis check. The cable instructs officers to request an SAO if in doubt and to only issue the visa if 212(a)(3)(A) “clearly does not apply.”

Applicants from the “Terrible 7” countries seeking to engage in one of the critical fields warrant special scrutiny and a Visas Mantis check is mandatory.

In comparison to the previous version, the updated TAL includes a vastly expanded list of associated technologies within each critical field, which details virtually every potential “dual use” application. For example, the new TAL includes a Chemical, Biotechnology and Biomedical Engineering critical field—an all-encompassing list that includes almost every possible associated technology or skill involving chemistry, biochemistry, immunology, microbiology, pharmacology, genetic engineering, and chemical engineering to name a few. With such an all-inclusive list, nearly every research scientist, physician or academic, or engineer involved in any of these fields in commercial research laboratories, educational institutions and universities, or private industry may be subject to a TAL Mantis check by a consular post erring on the side of caution.

As further indication of the all-encompassing nature of the TAL, the updated list also adds a new field to the TAL—Urban Planning (expertise in construction or design of systems or technologies necessary to sustain modern urban societies)—indicating the government’s “special” interest in skills and technologies associated with architecture, civil engineering, community development, environmental planning, geography, housing, landscape architecture, land use and comprehensive planning, and urban design.

Despite the guidance, it appears that the cable fails to provide both consular officers and attorneys with clear direction as to when a Mantis SAO is required. In fact, it seems to signal a bureaucratic shift towards initiating TAL SAO requests for all cases unless posts are absolutely sure the applicant will not be engaged in any of the technologies or skills listed on the TAL.[4] In response to concern and criticism about the lack of clear guidance about the TAL, the DOS confirmed that the TAL guidance has been significantly revised and shared with the field via cable on October 1, 2003, but it remains classified.[5] Despite this general guidance, anecdotal and other reports continue to indicate that there have been delays and a marked increase in the number of TAL security checks initiated by consular posts in China,[6] India, Israel, Pakistan, and Russia because of concerns that applicants are involved in activities with “dual use” applications.[7]

If your client has a possible TAL issue, what should you tell HIM OR HER?

Based on the all-inclusive nature of the TAL, it has become virtually impossible to predict if a foreign national will be subjected to a Visas Mantis security check. Although the TAL specifically states that information in the public domain or academic courses are not controlled by the TAL, the cable fails to provide any objective criteria to make these determinations. Indeed, anecdotal evidence supports the mounting belief that many officers are simply not prepared to make the judgment call in this “zero tolerance” environment and are initiating security checks for any applicants with a scientific or research background, simply to err on the side of caution. This is particularly daunting news for anyone involved in the scientific and technical fields, particularly researchers, professors, and engineers.

It has, therefore, become difficult to provide any definitive guidance to clients except to warn them of the risks involved when applying for a nonimmigrant visa. If a Visas Mantis check is initiated, they will be subjected to significant delays of three to six months or longer. Based on the uncertainty, it may simply become necessary to warn some of your clients who do not have visas that any international travel in inadvisable. This is particularly relevant where an applicant is from a Muslim country or from a “Terrible 7” country or from a country of “concern” (such as China or Russia). Similarly, if your client is applying at a border post in Canada or Mexico, he cannot reenter the United States while a TAL security check is pending because of changes to the “automatic revalidation” rule.[8] Thus, this is a difficult and unpredictable decision for many applicants who simply cannot afford to remain outside the United States for any prolonged periods of time.

In addition, it may be prudent to advise an employer to take the precautionary step of submitting documentation to the Department of Commerce to determine if the technology involved requires export control licensing. If the technology is not classified as “sensitive” technology and does not require an export license, it could help to avoid the initiation of an SAO.

If your client has a possible TAL issue, what kind of documents should he or she bring to the consular post?

Applicants involved in any activities that have potential “dual use” applications should bring as much of the following documentation to a nonimmigrant interview:

§ A letter from their employer, detailing the nature of the work and specific job duties, project descriptions and information distinguishing how the work has no possible military applications;

§ Complete resumes and lists of publications of the applicant;

§ Recommendation letters from U.S. sources;

§ Documentation to show that the information is in the public domain;

§ Documentation to show that the information is found in academic courses;

§ Documentation to show that the Department of Commerce determined that the technology involved is not a “sensitive” technology and an export license is not required.

Both the employer and the foreign national should be prepared for inquiries from a consular post about whether the employer secured export licenses or committed any violations of existing licenses. Further information about export control requirements is covered later in this article.

What happens if a consular post initiates a TAL MANTIS security check?

If a consular post initiates a security check based on the TAL, the officer will submit a SAO in the form of a Visas Mantis and transmit the request by cable simultaneously to the Visa Office (VO) at the DOS, the FBI and interested agencies.[9] After the FBI name check unit runs the names of the subjects of SAO’s through their name check system, the responses are uploaded onto a CD containing updated clearance information, which the VO receives twice a week.[10] The CD is an historical record of more than 500,000 responses provided to DOS by the FBI.[11] The information from the CD is uploaded into the DOS’ own FBI Response database, as well as into an automated system known as VISTA, which is the VO’s tracking system for SAO’s.[12] Unfortunately, for various technological reasons, VISTA does not always capture all of the clearance information.[13] Therefore, if analysts do not find an updated response to a case in VISTA that is due, they must check the FBI Response database to see if in fact, the FBI has cleared the case, because the DOS does not complete processing of the visa until they have the FBI response.[14] In some cases, it can delay a case by a week or longer between the time the FBI responds to a clearance request and when the VO analyst is able to send out the clearance response to the post.[15]

The other clearing agencies are given 15 working days to respond to SAO’s, but notify the VO when they need additional time to clear a specific case.[16] Additionally, the VO may have a clearance from the FBI, but may be waiting for another clearing agency to complete a review of a specific case.[17] One of the agencies may also ask a consular post to obtain more information from an applicant, which can also take time and delay a final response to post.[18] At other times, the VO must wait to receive a report from another clearing agency that may contain derogatory information pertaining to the applicant.[19] According to the DOS, waiting for highly classified reports through appropriate channels can be another reason for delay in responding to a consular post.[20] Once the DOS receives all agency responses pertaining to the applicant, it summarizes them and prepares a response to the consular posts.[21] A cable is then transmitted to the post which indicates that DOS does or does not have an objection to issuing the visa, or that more information is needed.[22]

How can I find out the status of a Visas Mantis security check?

There is currently no procedure in place that allows an applicant or counsel to check on the status of a Visas Mantis check. However, the DOS has internal systems in place to regularly check their databases for overdue cases and has reminded consular posts to follow up after 60 days. If a Mantis clearance has been pending for over 60 days, counsel may either call the Public Information office at (202) 663-1246 or email legalnet@state.gov.[23]

How long does the Visas Mantis security check take?

When initially implemented, TAL-based SAO requests routinely took three to six months or longer for clearance. However, The DOS reports that the average processing times for Mantis checks is approximately 30 days unless a government agency places a processing hold on the check. At any given moment, DOS has approximately 1,500 to 2,000 Mantis checks pending from the interagency review process.[24] Consular posts may not issue the visa until they receive an affirmative response from all participating agencies.

If a determination is made that the technology involved presents a security risk, the applicant may be permanently barred under INA §212(a)(3)(A), which is nonwaiverable.

Can I request an expedite of the Visas Mantis security check?

According to the DOS, they now have procedures for expediting individual cases when appropriate.[25] When an expedited clearance is needed, DOS faxes such requests to the FBI, which routinely responds in a timely manner.[26] Anecdotal evidence concerning the successful use of congressional pressure to speed up the procedure is spotty and may in fact antagonize a consular post.

IF THE VISA IS ISSUED, FOR HOW LONG IS IT VALID?

In October 2003, after extensive interagency consultation, the DOS agreed to extend the validity of the Visas Mantis clearance to one year. Based on this guidance, posts will no longer need to seek an additional Mantis clearance within a 12-month period after initial clearance has been given provided certain conditions are met, including that the applicant must be returning to a program or activity and will perform the same duties/functions at the same facility or organization that was the basis of the original Mantis authorization.[27] According to this guidance, consular officers may issue visas to applicants who have received Mantis clearance according to the applicant’s reciprocity table, but in no case, for longer than 12 months.[28] Visas for Chinese and Russian Mantis applicants can only be issued single-entry visas valid for three months.[29]

It also appears that many NIV applicants who are subjected to a Mantis security check are now considered “persons of interest” when they arrive in the United States. There have been several anecdotal reports that the FBI has made follow-up visits to universities, as well as private companies to check up on such individuals to ensure that they are in full compliance with the terms of their nonimmigrant status.

WILL THE VISA REVALIDATION UNIT REISSUE A VISA REQUIRING A VISAS MANTIS SAO?

According to the DOS, Mantis applicants may subsequently submit a revalidation application to the Visa Revalidation unit during the 12 months validity period. Realistically, this option will soon no longer be available because the requirement for use of biometric identifiers in visas by October 26, 2004 will ultimately end the visa revalidation program.