Though simple on its face, Question 19 of the SF-86 security clearance application poses a conundrum for many applicants who overthink it. The question asks:

Do you have, or have you had, close and/or continuing contact with a foreign national within the last seven (7) years with whom you, or your spouse, or cohabitant are bound by affection, influence, common interests, and/or obligation? Include associates as well as relatives, not previously listed in Section 18.

A legal analysis of the text shows that it contains four (4) key elements pertaining to the foreign contact(s) – all of which must be met for the applicant to check “YES”:

  • The contact must be close and/or continuing; AND
  • The point of contact must be the applicant or the applicant’s spouse or cohabitant; AND
  • The relationship must have existed within the last seven (7) years; AND
  • A bond of affection, influence, common interests, and/or obligation must exist between the foreign national and the applicant or the applicant’s spouse/cohabitant

Naturally then, contacts with foreign nationals that are fleeting, incidental, or arms-length (e.g. business transactions) need not be reported unless the applicant is given specific advice to the contrary from federal agency security officials[1]. Similarly, not even all distant relatives will meet the four-pronged test identified above. If your cousin is a foreign national, but you haven’t spoken with him or her since childhood, that’s not a contact that requires reporting.

Here are some recent examples of foreign national scenarios I’ve seen that don’t require reporting under normal circumstances:

  • A handful of former classmates from college, where the applicant maintains only a passive social media relationship, hasn’t actually interacted (whether in person or online) with the former classmates in years, and never established a relationship with these particular classmates beyond that of perfunctory daily greetings while in classes together.
  • A former colleague who happened to work down the hall from Applicant but with whom Applicant never socialized outside of work and with whom Applicant’s workplace interactions were limited to business matters and light “water cooler” talk.
  • A foreign exchange student who applicant’s family hosted ten (10) years ago and with whom Applicant’s parents continue to exchange annual Christmas cards and occasional online greetings, but with whom applicant has not maintained any relationship.
  • A foreign national neighbor who applicant waves hello to each morning and occasionally crosses paths with at the local gym, but with whom applicant’s relationship is limited to basic social courtesies.

I raise this issue because many well-meaning security clearance applicants over-report their foreign contacts, creating needless headaches for themselves that sometimes rise to the level of an initial security clearance denial that takes time and expense to challenge.

Indeed, just last month I appeared before a Defense Office of Hearings and Appeals judge with a client who had listed some dozen distant Afghani relatives on section 19 of his SF-86 – none of whom he maintained any relationship with or had even interacted with in years. His background investigation report failed to clarify this, as did his pro se response to a Statement of Reasons. So, there we were – $4,000 and six months later – unwinding this unfortunate situation and assuring the judge that, no, this applicant doesn’t maintain any communication whatsoever with the listed individuals, nor does he harbor any feelings of affection or obligation to them.

Of course, I can’t cover here every conceivable situation a security clearance applicant might encounter; the possibilities for potential foreign contacts are limitless. But I hope this at least helps some of you over-thinkers out there unpack the “close and continuing” conundrum in a way that helps you avoid problems down the road.

Just remember to always apply common sense and ask for clarification, in writing, from appropriate officials when necessary.

 

[1] For example, intelligence agencies typically request that their security clearance applicants complete supplemental documentation identifying each and every foreign national social media contact. Social media contacts are rarely “close and continuing” in nature, but follow your agency-specific guidance.

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com