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Likely Changes in Visa Rules After Recent Furor over INS Actions Concerning Terrorists' Visa Applications
by Cyrus D. Mehta

INS Commissioner James W. Ziglar recently stated in Congress that the Immigration & Naturalization Service (INS) is considering regulatory changes that would result in most holders of visitors' visas being admitted for a period of 30 days, rather than the current practice of admitting visitors for 180 days. The Commissioner also indicated that the INS is considering changes to regulations that would prevent a person who has entered under some other status from beginning a course of study before their request for a change of status to student is approved.

Reason For Furor Over INS Action

Recent news reports about the INS granting student visas to two men, Mohammed Atta and Marwan Al-Shehhi, who flew the planes into the World Trade Center on September 11 distort the picture. The INS does not issue visas at all. In fact, only the US consulates abroad can issue entry visas to prospective or continuing students. Rather, the INS can change the status of individuals who are already in the US.

In this particular case, the change of status applications were granted to the two men in July 2001, long before the September 11 terrorist attacks. The INS sends a notification to schools about approved change of status applications after the forms have gone through the INS data processing center in London, Kentucky. Due to the tremendous backlog, it is not unusual for the school to receive such notification many months after the change of status approval took place.

Therefore, contrary to media reports, the INS did not recently grant visas to the two men. In fact, the flight training school merely received a copy of the form that was issued to the individuals in July 2001. Such inaccurate reports needlessly portray foreign students as the weak link in our immigration system, resulting in clamor to restrict visas and to place impossible burden on schools to monitor and track foreign students. Foreign students generally play by the rules, and enhance academic and campus life. Many students who stay on in this country make valuable contributions to their professions and their communities. Those who return home contribute greatly to academic exchange and communication across cultures.

Flak Against INS

The INS has received a lot of flak due to its recent action, and is currently undergoing a number of personnel changes. In addition, a more complete reorganization of the agency is underway. It is unclear whether the contemplated reorganization will be done administratively or legislatively. It appears that the Chair of the House Judiciary Committee, James Sensenbrenner (R-WI) and the Bush Administration are at odds over the shape of the reorganization. Meanwhile, Governor Ridge and the Office of Homeland Security are pushing a proposal that would combine INS, Border Patrol and the US Customs Service into an entirely new agency. The House will be holding further hearings on reorganization in early April, and Governor Ridge's proposals may be moving forward very quickly as well.

Furthermore, INS personnel who have been replaced or reassigned in the recently announced changes include Michael Pearson, Executive Associate Commissioner for Field Operations, who has been replaced by Johnny Williams from the INS Western Region, Joe Cuddihy, Assistant Deputy Executive Associate Commissioner for Immigration Services who has been replaced by Janis Sposato, Special Counsel to the Commissioner; Joe Green, Assistant Commissioner for Inspections who has been replaced by Michael Cronin who most recently served as Acting Executive Associate Commissioner for Programs; and Jeff Weiss, Acting Director for International Affairs, who has been replaced by Renee Harris who was Acting Deputy Chief for the Border Patrol.

Commissioner Ziglar's Testimony Before Congress

On Tuesday, March 19, 2002, INS Commissioner James W. Ziglar appeared before Congress to respond to the recent notifications issued in the cases of the two men who launched terrorist attacks on September 11.

Although Mr. Ziglar again clarified in great detail that the INS did not recently issue visas or approved applications, but merely sent copies of paperwork to the school, he also revealed Mohammed Atta's travel into and out of the US following his application for change of status from visitor to student. According to Mr. Ziglar, Atta entered this country on June 3, 2000, as a visitor and on September 19, 2000 requested to change his status from a visitor to that of a student. While that change of status was pending before the INS, he started taking classes, which is allowed under current INS regulations.

Mr. Ziglar then noted that Atta departed the US in early January 2001 and returned on January 10 while the application for change of status was pending. Mr. Atta attempted to enter the country at Miami International airport on a B-2 visa. If the INS inspector had knowledge that Mr. Atta was entering to pursue courses at school, he should not have been admitted under B-2 visa. The B-2 visa is a tourist visa, which does not allow foreign nationals to pursue full-time courses in the US.

Once an individual leaves the US during the pendency of an application or after the grant of change of status, the INS takes the position that the change of status is abandoned. The foreign student must obtain a student visa at a US consular post in order to reenter the US.

Mr. Atta made another entry on July 19, 2001, according to Mr. Ziglar. In the meantime, his application for change of status to student had been approved two days before, on July 17. Mr. Ziglar reported that he was again admitted on a tourist visa. Even if the INS did not possess intelligence about Atta's terrorist objectives, he should not have been admitted into the US on a tourist visa when there was a record that he was pursuing a program at a flight school.

This writer has known of many innocent people with no terrorist inclinations, who unaware of our complex immigration system, have erroneously presented tourist visas to pursue programs at US schools only to be turned away at the US port of entry.

INS Visa Reform Proposals

While describing Atta's movements, Mr. Ziglar stated that the INS is considering regulatory changes that would result in most holders of visitors' visas being admitted for a period of 30 days, rather than the current practice of admitting visitors for 180 days. The Commissioner also stated that INS is considering changes to regulations that would prevent a person who has entered under some other status from beginning a course of study before their request for a change of status to student is approved.

It is inappropriate to use Atta's example to prevent a person from beginning a course of study while the request for change of status is pending. Under current INS policy, Atta should not have been admitted to pursue his studies once he left the US. He had abandoned that application. Since the INS takes several weeks to adjudicate such applications, the ability of a student to commence studies is indeed beneficial. The fact that a student may study while an application is pending does not in any way undermine our security.

Furthermore, although the maximum period of time for admitting visitors into the US is 180 days, INS inspectors use their discretion to admit people for shorter periods of time. It is best to leave such discretion to a well trained INS inspector. However, many visitors may need to be in the US legitimately for more than 30 days, especially if they have family or business objectives. A fixed period of 30 days would undermine both commerce and tourism. Furthermore, people desirous of spending more time in the US will need to file applications to extend status with the INS. This would burden the INS even further and increase backlogs.

Mr. Ziglar also told Congress that the current system for foreign student applications is being replaced with a new automated Student Exchange and Visitor Information System, known as SEVIS. INS will begin deploying this system in July 2002, stated Mr. Ziglar. SEVIS is an internet-based system and once the system is fully deployed schools will receive quick electronic notification of student approvals, eliminating most of the paper elements in the current foreign student process.

Department of State (DOS) Proposal To Change Visas Rules For Travel To Contiguous Countries

In a parallel development, the DOS has proposed changes to its long standing "automatic visa revalidation" rule when traveling to contiguous countries (or adjacent islands in the case of students or exchange visitors) for less than 30 days.

22 CFR 41.112(d) is the DOS regulation that allows noncitizens to travel to contiguous countries or adjacent islands without a valid visa, as long as the individual possesses a valid I-94 card and accompanying documentation verifying current lawful status. This could either be a valid I-797 approval notice, or in the cases of students, it would involve a valid I-20 issued by the school or a valid IAP-66 issued by the program sponsor.

On March 7, 2002, the DOS announced that the rule would be revised effective April 1, 2002. From that date, nationals of the following terrorist sponsoring states - Iran, Iraq, Syria, Libya, Sudan, North Korea and Cuba - will be unable to benefit from the provisions of this rule. If, for example, an Iranian national goes to Mexico or Canada for a day and has an expired visa, but is in valid nonimmigrant status, this individual would need to obtain a new visa to return to the US.

Additionally, the rule would also prohibit an individual from reentering the US from a contiguous country if he or she "applies" for a visa and the visa is not issued for any reason at the US consulate at Mexico or Canada. Such a person would also not be able to enter the US without a valid visa. All other nationals, as long as they are not from the terrorist sponsoring status or have not been refused a visa, can enter the US from a trip to Mexico or Canada for 30 days or less on an expired visa as long as they are in valid nonimmigrant status.

Those who are unable to enter, such as denied visa applicants or nationals from the terrorist sponsoring states, may still be able to enter through deferred inspection, parole, or a documentary waiver at the port of entry into the US. There is no guarantee that the INS will use one of these discretionary measures to allow an individual back into the US.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or