Unless and Until We Act,
Inefficiencies and Inadequacies in the Special Immigrant Visa (SIV) Program for Afghan Nationals
By William A. Thompson
LIA Intern, Summer 2022
The Need for Reform and Responsibility
Last August’s withdrawal of American troops from Afghanistan and the ensuing reconstitution of the Taliban regime can only be described as nothing short of chaos. Photos and videos of the turmoil at the Hamid Karzai International Airport in Kabul dominated American media for weeks, but the crisis in Afghanistan seemed to depart from public consciousness just as abruptly as it arrived. Despite the significant public concern for the evacuation of our American servicemembers and Afghan allies at the time, little public discourse continues today regarding the uncertain futures of the tens of thousands of Afghan allies that we left behind. 1
Simple reforms to the Special Immigrant Visa (SIV) program for Afghan nationals could allow the United States to provide security and safety to those left behind. But throughout the past year Congress has failed to act to address the program’s systemic failures. In consequence, the responsibility now falls on everyday Americans both to understand the inadequacies of the SIV program and to push for their elected representatives to enact commonsense reforms so that we—as Americans—are able to fulfill the promises and obligations that were made to the tens of thousands of Afghans that supported our mission.
While simple legislative changes could substantially increase the efficiency and accessibility of the SIV program, Congress has refused to act on the issue and instead chosen to condemn tens of thousands of Afghans to a lifetime of uncertainty and instability under the persistent threat of harm.
What is a Special Immigrant Visa?
In 2006, the U.S. Congress first enacted the SIV program. The program was originally designed to provide a “special immigrant” status to individuals who had worked as interpreters or translators for the U.S. military in Iraq and Afghanistan, and it was later expanded by the Afghan Allies Protection Act of 2009 to include all Afghan nationals who were directly employed by the U.S. government, or its contractors, for a period of at least 1 year. 2
As currently amended, in order to be eligible for SIV status such individuals must provide documentary proof of “faithful and valuable service” to the U.S. government, its contractors, or the International Security Assistance Force (ISAF) in the form of letters of employment verification and recommendation from the senior supervisor of their employment. Furthermore, individuals must be able to prove that they have experienced, or are experiencing, a serious threat to their safety as a consequence of their employment. 3
Despite the fact that public attention has shifted away from the Afghan refugee crisis throughout the past year... the fundamental policy failures of the SIV program remain a powerful determinant in the lives of tens of thousands of Afghan nationals to whom we — as Americans — continue to owe a great debt.
Individuals eligible for SIV status must complete a multistep application process. First, an applicant must submit documents proving that they satisfy the above requirements to the Department of State’s Chief of Mission for Afghanistan (COM) for approval. Once COM approval has been received, the applicant must next file a petition with U.S. Citizenship and Immigration Services (USCIS) for conditional SIV approval (these two steps were combined into a single step process as of July 20, 2022). 4 Upon receiving both COM and USCIS conditional approval, the applicant must then schedule an in-person interview with the National Visa Center (NVC) to be conducted at an eligible U.S. embassy or consulate. If the interviewing consular officer exercises their discretion to approve the applicant’s SIV request, the applicant may then pick up their SIV at an American embassy or consular location. 5
Unkept Promises and Unattainable Requests
While these eligibility requirements and application procedures are ostensibly straightforward in nature, they have in effect served both to restrict access to the SIV program for eligible individuals and to introduce significant delays to the process. Despite the fact that in 2013 Congress passed an amendment to the SIV program requiring that the U.S. government complete all steps of the application process within 9 months of receiving an eligible applicant’s documents (except under “extraordinary circumstances”), as of January 2022 the average processing time for an SIV application was 734 calendar days (almost exactly 2 years). 6
Perhaps the most problematic element of the screening process for eligible SIV applicants that remain in Afghanistan is the requirement that an in-person interview must be conducted at a U.S. embassy or consulate. Following the withdrawal of U.S. forces from Afghanistan, the Department of State indefinitely suspended operations at the U.S. Embassy in Kabul, the capital city of the country. 7 In consequence, in-country SIV applicants are forced to arrange interviews at U.S. embassy or consular locations in third countries at their own travel expense and at their own risk. 8
An additional complexity exists for many eligible SIV applicants who were employed in Afghanistan by private contracting firms affiliated with the U.S. government. Many of these private contracting and subcontracting firms were notorious for shoddy record-keeping to begin with; now that those firms have withdrawn from Afghanistan, it has proven frustratingly difficult for many eligible SIV applicants to obtain the letters of employment verification and recommendation necessary to obtain SIV status. And this problem has only been further exacerbated by the fact that many of these private contracting corporations no longer exist. 9
Furthermore, the limited scope of the employment requirement for SIV status restricts access to the program for a wide variety of American allies and supporters in Afghanistan who were not directly employed by the U.S. government, its contractors, or its allies in the ISAF but that were nonetheless funded in large part by these same entities—most notably, individuals who served in the Afghan National Security Forces and civil service that had supported the American mission and worked closely alongside the American forces and in government as indispensable allies throughout the war.
Effects of Inefficient Design
As a result of the bureaucratic complexities and inefficiencies that plague the existing SIV program, approximately 40,000 Afghan SIV applications remained pending as of December 31, 2021. 10 And this May, the Department of State filed a motion in federal court seeking to modify a 2020 judicially imposed adjudication plan for the swift processing of the SIV backlog. In the filing, the Department cited the COVID-19 pandemic, the surge of Afghan SIV applicants, and the shuttered Kabul embassy as “extraordinary” factors contributing to the SIV backlog and claimed that it had reduced the average processing time of SIV applications to 587 days. 11
Taking the State Department’s claims at face value, it is evident that the pervasive inefficiency of the SIV program is not a failure of implementation or execution but instead a failure of inherent design. Both the multistep review process (requiring the approval and coordination of two federal departments) and the onerous in-person interview requirement serve to unduly delay and complicate the application process for eligible individuals remaining in Afghanistan. 13 Furthermore, the inequitable employment eligibility requirements prevent access to the program for a wide variety of individuals who undoubtedly find themselves in acute danger under the Taliban regime as a result of their past support for, and association with, the American mission in Afghanistan—including both the Afghan civil servants and activists who supported our efforts at democratization and the members of the Afghan Security Forces who fought alongside American servicemen throughout our involvement in Afghanistan.
Despite the fact that public attention has shifted away from the Afghan refugee crisis throughout the past year thanks to the ongoing war in Ukraine and rising domestic economic anxiety, the fundamental policy failures of the SIV program remain a powerful determinant in the lives of tens of thousands of Afghan nationals to whom we—as Americans—continue to owe a great debt. And while simple legislative changes could substantially increase the efficiency and accessibility of the SIV program, Congress has refused to act on the issue and instead chosen to condemn tens of thousands of Afghans to a lifetime of uncertainty and instability under the persistent threat of harm.
In order to make good on our national promise and to regain our moral integrity, I urge you to contact your representatives and senators in Congress and to push for common sense reforms to the SIV program for Afghan nationals. Unless and until we act, countless lives hang in the balance.14
About the Author
William A. Thomson is a senior at Grand Valley State University working toward his Bachelor of Science degree in political science along with a paralegal studies certificate. After he completes his undergraduate education, he plans to attend law school concentrating in constitutional law and appeals. He is passionate about both justice and public policy and interested in understanding the influence the law has over people’s lives. As a New American Legal Clinic intern at LIA, he is grateful for the opportunity to work closely with Afghan refugees in his community and to expand his understanding of immigration policy at a personal and human level. In the future, he looks forward to utilizing this experience to inform and improve his continued advocacy for the underprivileged and underrepresented both within and outside of our immediate communities.
References
Kim Staffieri, Matt Zeller and Michael Trudeau, Ass’n, of Wartime Allies, The Left Behind Afghans 1 (February 2022)
National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 1059, 119 Stat. 3136, 3443 (2006); Afghan Allies Protection Act of 2009, Pub. L. No. 111-8, § 602, 123 Stat. 524, 807 (2009).
Afghan Allies Protection Act of 2009, Pub. L. No. 111-8, § 602, 123 Stat. 524, 807 (2009), (As Amended Through Pub. L. No. 117-31, Enacted July 30, 2021).
U.S. Department of State Bureau of Consular Affairs, Special Immigrant Visas for Afghans—Important Notice: Afghan SIV Petition Change, https://travel.state.gov/content/travel/en/us-visas/immigrate/special-immg-visa-afghans-employed-us-gov.html (2022).
U.S. Department of State Bureau of Consular Affairs, Special Immigrant Visas for Afghans—Step 4: The Visa Interview, https://travel.state.gov/content/travel/en/us-visas/immigrate/special-immg-visa-afghans-employed-us-gov.html (2022).
National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1219, 127 Stat. 672, 913 (2013); Joint Department of State/Department of Homeland Security Report to Congress on Status of the Afghan Special Immigrant Visa Programfor Q1 of Fiscal Year 2022 (January 2022).
U.S Embassy in Afghanistan, Visas, https://af.usembassy.gov/visas/ (2022).
U.S. Department of State Bureau of Consular Affairs, Special Immigrant Visas for Afghans—Step 4: The Visa Interview, https://travel.state.gov/content/travel/en/us-visas/immigrate/special-immg-visa-afghans-employed-us-gov.html (2022).
Drew Lawrence, ‘Left to the Devils’: How Red Tape and Paperwork Errors Betrayed America’s Afghan Allies, Task & Purpose (September 30, 2021), https://taskandpurpose.com/news/afghan-interpreters-siv-bureaucracy-paperwork/.
Joint Department of State/Department of Homeland Security Report to Congress on Status of the Afghan Special Immigrant Visa Programfor Q1 of Fiscal Year 2022 (January 2022).
Brief for Defendant at 1-2, Allies v. Blinken, No. 1:18-cv-01388-TSC (D.D.C. May 24, 2022).
Press Release, The United States Department of State, Update on Special Immigrant Visa Processing (June 9, 2022), https://www.state.gov/update-on-special-immigrant-visa-processing/.
The offices of the National Visa Center and Afghan Chief of Mission are organized under the Department of State while the office of United States Customs and Immigration Services is organized under the Department of Homeland Security.