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Special Alerts On Post-September 11 Dangers

by Bruce A. Hake and Joseph J. Kranyak

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.

  1. Form AR-11 Change of Address Notices

    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.

  2. Special Registration

    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.

    Information about these new requirements is available on the INS web site: General Information and How To Comply .

    The special registration requirements, including fingerprinting and periodic interviews, currently apply to all nonimmigrant foreigners who fall into one of three categories:

    (i) All nonimmigrant males aged 16 years or older who

    1. are currently in the United States,
    2. were last admitted to the United States before September 10, 2002,
    3. plan on remaining in the United States past December 16, 2002,
    4. have not applied for asylum prior to November 6, 2002, (e) have not been granted asylum,
    5. are not in A or G nonimmigrant status, and (g) are nationals or citizens of Iran, Iraq, Libya, Sudan, or Syria.

    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

    1. attempting to enter the United States in a nonimmigrant status other than A or G and
    2. nationals or citizens of Iran, Iraq, Libya, Sudan, or Syria.

    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

    1. attempting to enter the United States in a nonimmigrant status other than A or G and
    2. nationals or citizens of Pakistan, Saudi Arabia, or Yemen.

    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.

    Nonimmigrant foreigners who are males between the ages of 16 and 45 and who are citizens or nationals of Pakistan, Saudi Arabia, or Yemen should expect to be first registered upon arrival in the United States. Following initial registration, they will be required to comply with follow-up registration requirements.

  3. Lengthy Security Checks

    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.

    In late October 2002, the Department of State announced that it would terminate the 20-day waiting period that has come to be associated with the List of 26. The waiting period, according to the Department of State, was an interim measure and its need has been obviated by improved interagency data sharing procedures and additional security procedures.

    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.

    All visa applicants (with very few exceptions) who are nationals of the seven countries listed above and who are older than 16 years of age must complete Form DS-157, in addition to Form DS-156, and must appear for an interview with a consular officer before they will be eligible to receive a visa.

    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.

  4. Three- and Ten-Year Bars on Reentry for J-1 Exchange Visitors

    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.

    In 1997 and 1998 the U.S. State Department and the INS issued policy guidelines that exempt from the accrual of unlawful presence J-1 exchange visitors who were admitted for "duration of status" (I-94 card marked "D/S" instead of giving a fixed date for the termination of authorized stay). According to this policy, the unlawful presence clock would start to run for persons who had overstayed J-1 visa status only upon issuance of a written determination by the INS or certain other officials that the person was out of status. In practice such written determinations were extremely rare. Thus, in practice J-1 exchange visitors have not needed to worry about the 3- and 10-year bars.

    In 2002 a rumor circulated that the INS will soon release regulations that will remove this exemption. Indeed, it is possible that the change may be made retroactive. Therefore, it is possible that some people who have had to overstay their J-1 visa status and go out of status for extended periods (for instance, due to long INS delays in adjudicating a J-1 waiver application) may suddenly find themselves subject to a 3- or 10-year bar on reentry the next time they leave the United States. It is unknown when such regulations will be issued and exactly what they will say. At a minimum, this possible development makes it much more dangerous for J-1 exchange visitors to stay more than 30 days beyond the last date on their last IAP-66 form (now called State Department Form DS-2019).

  5. Local Police Enforcement of Immigration Laws

    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.

    In particular, it is critical that foreigners comply with the new special registration requirements. Attorney General Ashcroft announced on June 6, 2002 that when a foreigner violates one of the new special registration rules, his or her photographs, fingerprints, and personal information will be logged into the National Crime Information Center System ("NCIC"). When federal, state, or local law enforcement officers encounter a foreigner whose information has been logged into NCIC, the law permits them to arrest that foreigner and transfer him or her to the custody of the INS.

    Foreigners in the United States should carry on their person at all times their original Form I-94 card and other documents proving their current, lawful status. Photocopies of all such papers, of course, should be maintained separately in a secure place. Because the times are so serious, and the potential risks are so high, it may be prudent to err on the side of caution and carry copies of all immigration papers when traveling by vehicle.

  6. New Tracking And Security Check Features For J-1 Exchange Visitors

    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.

    For more information see the new ISEAS web page and the web page of the Interagency Working Group on U.S. Government- Sponsored International Exchanges and Training (IAWG) .

  7. Consular Processing Issues

    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.

    The U.S. State Department web site currently states: "Any third country national (TCN)* present in the United States and visitors present in Canada who wish to apply for a nonimmigrant visa at any of our border posts in Canada or Mexico must make an appointment for an interview. . . . * Please note that Border Posts can no longer accept applications from non-resident TCNs who are nationals of the seven countries currently designated as state sponsors of terrorism." Those countries are Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria.

    One consulate that has historically seen a great deal of TCN processing is no longer accepting many of those types of applications. On November 1, 2002, the U.S. consulate in Ciudad Juarez, Mexico stopped taking appointments from most TCN nonimmigrant visa applicants (it is continuing to accept TCN applications from certain F-1 students and residents of the Cuidad Juarez consular district).

    Most such TCN applicants must make their appointments through the NVARS ( system. It is advised that applicants wait five business days after scheduling before making airline reservations or other travel plans. Those not contacted by the State Department in this time frame will have appointments.

    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.

    All applicants for nonimmigrant visas, TCNs or otherwise, must be prepared for substantial delays in the application process. On November 1, 2002, the Department of State posted the following statement on its web site: "Responding to the attacks of September 11, 2001, the State Department, working with other U.S. Government agencies, has been engaged in an extensive and ongoing review of visa issuing practices as they relate to our national security. Visa applications are now subject to a greater degree of scrutiny than in the past. Applicants affected by these procedures are informed of the need for additional screening at the time they submit their applications and are being advised to expect delays. The time needed for adjudication of individual cases will continue to be difficult to predict. We recommend that individuals build in ample time before their planned travel date when seeking to obtain a visa. We recognize that these delays are having an impact on visa applicants, and we have already had success streamlining the process, consistent with our security and legal responsibilities. The State Department is working hard with other government agencies to rationalize clearance procedures in ways that continue to protect US borders, our first priority, while facilitating legitimate travel. We trust that affected applicants will understand that this waiting period is necessary as we strive to make every effort to ensure the safety and security of the United States for all who are here, including foreign visitors."

  8. Destruction Of Due Process Rights

    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.

  9. The Homeland Security Bill

    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 .

  10. Bottom Line For Foreigners Now Lawfully Present In The United States

    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.

About The Author

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.