Special Alerts On Post-September 11 Dangers
In the wake of the September 11, 2001 terrorist attacks on the United States, the U.S. Government has added many new restrictions on foreigners in the United States, especially on people from countries believed to be state sponsors of terrorism. This article collects selected news items and practical suggestions that may be important for many of our clients.
For 50 years, ever since the Immigration and Nationality Act was enacted in 1952, most foreigners in the United States, including those who have been granted U.S. lawful permanent resident status, have been required to notify the Immigration and Naturalization Service (INS) in writing on Form AR-11 within 10 days of any change of residence. The law has always authorized serious penalties for a failure to comply, including deportation and criminal penalties. In practice, however, the law was almost never enforced or publicized, and until recently even many immigration lawyers were not aware of the requirement. In the wake of September 11th, however, the INS has been aggressively enforcing this law, including an attempt in North Carolina to deport a Palestinian father of four, who had entered the United States lawfully as a refugee and is a U.S. lawful permanent resident (green card holder), after local police officers in Raleigh stopped him for driving four miles over the posted speed limit and reported him to the INS, which claimed that he had failed to file an AR-11 after a change of residence. Reportedly deportation charges against this man were dismissed, because his lawyer succeeded in persuading the Immigration Judge that the failure to file an AR-11 was not "willful," as required by Section 237(a)(3)(A) of the Immigration and Nationality Act. Nonetheless, noncitizens in the United States must now regard this requirement with deadly seriousness, even if they have been law-abiding green card holders with American families for many years.
What should I do?
Within 10 days of any change of residence, all noncitizens in the United States (except for diplomats and diplomatic workers on A or G visas) should mail the simple, one-page Form AR-11 to the INS address specified on the form. Please note that the INS recently issued a new version of Form AR-11, and it now requests that the form be mailed to an address in Kentucky. The new version of the form and the new mailing address can be found at the INS web site . It is recommended that the form be filed by certified mail, without filling out a return receipt. This will enable you to prove that you mailed the form. You should keep the original certified mail receipt and postal receipt showing payment of the postage plus a photocopy of the AR-11 itself. Please do not send copies of these documents to Bruce A. Hake, P.C. unless requested to do so.
What should I do if I neglected to file an AR-11 with regard to one or more previous changes of address?
There is no clear guidance from the INS. In this situation it is recommended that an AR-11 be filed, as suggested in the previous paragraph, with regard to the most recent change of address only.
What about contacting other INS offices where an application of mine is pending?
In addition, the INS generally recommends that you should send a change of address notice by letter to every INS office where you have an application or petition pending. One can find the mailing addresses for INS field offices on the INS web site. Your lawyer can tell you how to give a case number to reference each specific application or petition and which address to use for the particular INS office. Please do not send copies of such letters to Bruce A. Hake, P.C. unless requested to do so, but be sure to keep copies for yourself. Be aware that it is unlikely that the INS will actually match the address change notice with your case file, and you will almost certainly receive no acknowledgement from the INS regarding your letter.
Is the AR-11 used only for address changes?
No. The INS has announced that persons who are subject to the new "Special Registration" requirements must also file an AR-11 within 10 days of any change of employment or change of school. At present it appears that persons who are not subject to the Special Registration requirements do not need to worry about this.
Are there any other change of address requirements I should know about?
Yes. If you have ever "sponsored" anyone by filing a Form I-864 Affidavit of Support, you are required to report any change of address to the INS within 30 days if your obligations under the Affidavit of Support are still "in force" (typically, one's obligations under an Affidavit of Support remain in force until the sponsored immigrant becomes a U.S. citizen, departs the U.S. permanently, or dies). If this rule applies to you, you should mail the simple, one-page Form I-865 to the INS address specified on the form. As with the AR-11, the form may be downloaded from the INS web site. It is recommended that you file the form by certified mail, without filling out a return receipt. You should keep the original certified mail receipt and postal receipt showing payment of the postage plus a photocopy of the I-865 itself. Please do not send copies of these documents to Bruce A. Hake, P.C. unless requested to do so.
Effective September 11, 2002, pursuant to a final rule issued by the INS on August 12, 2002, certain nonimmigrant foreigners traveling to or residing in the United States will be required to comply with extensive new registration requirements, including fingerprinting, periodic interviews at INS offices, special rules regarding departures from the United States, special rules regarding filing of Form AR-11 to report changes of address, school, or employment, among other things.
(i) All nonimmigrant males aged 16 years or older who
According to an INS notice in the Federal Register dated November 6, 2002, certain nonimmigrant males aged 16 years or older who were last admitted to the United States before September 10, 2002 and who are nationals or citizens of Iran, Iraq, Libya, Sudan, or Syria must appear before an immigration officer at one of several designated locations. They must do so PRIOR TO DECEMBER 16, 2002. If they are departing from the United States before that date, they do not have to register. They will be required to answer questions, to provide certain documentation, and to be photographed and fingerprinted. Following this registration, they will be required to comply with follow-up registration requirements. The INS has released a "Fact Sheet" that nonimmigrants in this category should carefully review.
(ii) All nonimmigrant foreigners, regardless of age or gender, who are
The special registration requirements apply to most nonimmigrant foreigners attempting to enter the United States who are nationals or citizens of countries that are the subject of a special designation made by Attorney General John Ashcroft. These countries are currently Iran, Iraq, Libya, Sudan, and Syria. This list may be added to at any time. The foreigner is first registered upon his or her arrival in the United States. Following this registration, he or she will be required to comply with follow-up registration requirements.
(iii) All nonimmigrant foreigners attempting to enter the United States who meet certain INS or Department of State "pre-existing criteria." These include males between the ages of 16 and 45 who are
All nonimmigrant foreigners attempting to enter the United States who meet certain INS or Department of State "pre-existing criteria" are required to comply with the special registration requirements. As a general rule, it is not expected that such criteria will ever be disclosed by the government. Recently, however, a confidential INS memorandum addressing this issue made its way to the popular press. The memo, dated September 5, 2002, states that all males between the ages of 16 and 45 who are attempting to enter the United States in a nonimmigrant status other than A or G and who are citizens or nationals of Pakistan, Saudi Arabia, or Yemen are subject to the new special registration requirements.
In the wake of September 11th, many INS offices have slowed down due to various kinds of new security checks. In addition, at least three different lists of countries have been announced, subjecting citizens of such countries to special enhanced security procedures.
The List of 26
In November 2001 the U.S. State Department announced that all men between the ages of 16 and 45 from certain "countries of interest" would be subject to a special 20-day waiting period on nonimmigrant visa applications. The list of countries was never officially published, but it was thought to include 26 mainly Muslim countries. Such persons were required to complete a detailed questionnaire on their backgrounds, including information about any military service, weapons training, and previous travels. One of our clients, a dual citizen of both the United Kingdom and Pakistan and a distinguished medical scientist, had to wait for months before he was able to get a routine visa from the U.S. Embassy in London to return to his family and employment in the United States. This list is believed to include these countries: Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudia Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen. Turkey has appeared and Bangladesh has not appeared on some versions of the list, and other countries may be added or dropped from time to time.
Enhanced Border Security List
The Enhanced Border Security and Visa Entry Reform Act of 2002 (H.R. 3525), signed by the President on May 14, 2002, bars the issuance of nonimmigrant visas to nationals of seven countries, unless it is determined that the person does not pose a security threat. This list includes these countries: Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. Anecdotal evidence suggests that individuals who have resided in these countries, even if only for a short time, may be subject to substantially enhanced security screening as well.
Alien Registration List
As discussed above, the new Special Registration requirements apply to certain persons from Iran, Iraq, Libya, Sudan, Syria, Pakistan, Saudi Arabia, and Yemen, plus any other country as determined on a case-by-case basis by the U.S. State Department or INS.
The "Axis of Evil"
So far there have been no additional requirements imposed on citizens of the so-called Axis of Evil (North Korea, Iran and Iraq) [Corrected 11/22/02], but stay tuned.
This is a brief summary of an issue that may become important for many of our clients. In 1996 the U.S. Congress passed legislation that bars many nonimmigrants from reentering the United States for long periods of time if they accrue extended periods of "unlawful presence." "Unlawful presence" is a technical term that mainly applies to nonimmigrants who overstay their authorized periods of admission or who work without employment authorization. In the most common situation, the "unlawful presence clock" starts to run when the current visa status expires. If the person accrues 180 days of unlawful presence, he becomes subject to a 3-year bar on reentry. If the period of unlawful presence stretches to an entire year, the person becomes subject to a 10-year bar on reentry.
Be aware that the U.S. Justice Department under Attorney General John Ashcroft has attempted to reverse years of law that prohibited local police officers from enforcing federal immigration laws. During the War on Terrorism, initiatives have started to permit and encourage local police departments to conduct immigration investigations. Many or most local police departments will not make this a priority, or will even actively resist. But others will not. Therefore, foreigners in the United States now must be much more careful about complying at all times with all details of U.S. law.
It appears that the U.S. Government has started serious tracking and security checking for all J-1 exchange visitors and other student visa categories. It is going to take much longer for many people to obtain original or replacement J-1 visas, causing many students to be "stuck" overseas and unable to attend the first classes of a semester or other training program. In addition, there is going to be aggressive monitoring of whether J-1 exchange visitors are maintaining status by staying in school or otherwise doing what they are supposed to be doing in J-1 status. All J-1 exchange visitors should monitor these developments closely. Much valuable information about these developments is contained in a cable issued by the U.S. State Department on September 11, 2002. It is hard to read, but the effort is worthwhile.
Another important post?September 11 development is the abandonment of Third Country National (TCN) processing of visa applications in Canada, Mexico, and other countries for certain individuals. This means that many persons seeking to obtain a new J-1 visa, or seeking an H-1B or O-1 visa, among other visa categories, may no longer be able to apply in Canada or Mexico and return to the United States the same day. Instead, they will need to return to their home countries, where they may have to wait for months for security checks to be completed.
Persons from countries on one or more of the post?September 11 country lists should consult with a law firm that has expertise in overseas consular processing before planning to travel abroad for a visa application. Bruce A. Hake, P.C. does not have such expertise.
In addition to the above consular processing issues, the State Department has ongoing concerns about the prevalence of visa fraud in certain countries. Recently the Department announced that it is particularly concerned about visa fraud encountered in Russia, Nigeria, and China. Persons from these countries may also experience long waiting times. Rumors persist of other kinds of special security checklists as well.
In many ways since September 11, 2001, the U.S. Government has been taking steps that result in the destruction of due process/fair hearing rights for foreigners in the United States. Indeed, some of these steps pose dire threats to the civil liberties of all American citizens. The American Immigration Lawyers Association (AILA) has prepared a good summary of the major Executive Branch actions since September 11th that restrict due process rights of foreigners.
As of November 15, 2002, it appears that final passage of Homeland Security legislation is virtually assured. The bill currently before the U.S. Senate would abolish the INS and create a new Department of Homeland Security. A new "Bureau of Border Security" within the Department of Homeland Security would focus on border patrol, detention, removal (deportation), intelligence, investigation, and inspection functions, while a "Bureau of Citizenship and Immigration Services" would undertake the adjudication of immigrant visas, asylum, refugee matters, naturalization, and any other petitions or applications currently handled by INS regional service centers. The bill would also give the Secretary of Homeland Security the authority to issue regulations and administer and enforce laws relating to the functions of the Department of State consular officers in the issuance and refusal of visas. The Executive Office for Immigration Review, however, which includes the Immigration Judges, would remain under the umbrella of the Department of Justice, subject to the direction of Attorney General John Ashcroft. An excellent statement on the pending legislation--and a cogent discussion of its many flaws--can be found on the AILA web site .
The bottom line now for foreigners who are lawfully present in the United States is that it may be prudent not to depart the United States except for a bona fide emergency, so long as one is maintaining lawful status, even if one seems not to be directly affected by the developments above.
Disclaimer: This information is provided as a free service to the clients of Bruce A. Hake, P.C. and other interested persons. The firm may update this page from time to time as circumstances warrant, but it does not guarantee that the information on this page is current, complete, or accurate. Moreover, Bruce A. Hake, P.C. disclaims any liability for adverse results that may occur from action or inaction taken in response to information or suggestions on this page, unless the firm has specifically undertaken in writing to be responsible for advice in a particular situation. The information on this page is generalized and should not be relied upon as legal advice. These are serious times and for many people there may be serious and unexpected consequences in connection with seemingly minor matters such as notices of change of address. Readers should conduct their own research beyond this page and they should retain the services of an experienced immigration lawyer for specific advice in particular situations.
Bruce A. Hake is a lawyer in Damascus, Maryland. With his wife Judy and his brother Gordon, he founded Immigration Lawyers on the Web, which was sold to American Immigration LLC in 1999.
Joseph J. Kranyak is an associate lawyer with Bruce A. Hake, P.C.