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Survey of Post-9/11 Security, Travel and Visa Related Changes in U.S. Immigration Law and Procedure

by George N. Lester

George N. Lester IV In the wake of September 11 there have been many changes affecting how foreign nationals may be admitted to the U.S., and what they must do after arrival to maintain lawful status.

The September 11, 2001 terrorist attacks quickly came to be seen as a gross failure of the process by which foreign visitors are screened and admitted to the U.S. Apparently, most if not all of the hijackers entered the U.S. legally with valid visas for business, tourism or study, but then "overstayed" the period for which they had been admitted or otherwise violated their terms of admission without drawing any attention from the Immigration and Naturalization Service ("INS") or other enforcement authorities.

In the aftermath of 9/11 there have been several changes proposed or enacted in U.S. immigration law to address these national security concerns. The changes focus on how foreign visitors are screened before coming to the U.S., what questions they face at the time of entry, and what they must do after arrival to adhere to the conditions of admission and otherwise stay in compliance with immigration laws.

There has been Congressional legislation, such as the Enhanced Border Security and Visa Reform Act of 2002 ("EBSVRA") and USA PATRIOT Act of 2001 (the "Patriot Act"), signed into law respectively in May 2002 and October 2001, several proposed or final regulatory promulgations from INS and the Department of State ("DOS"), and changes made by INS or DOS at the basic policy or procedure level. This article is intended to provide a survey of the most significant of these changes that directly affect foreign nationals traveling to or living in the U.S.

The main objective of the changes is to identify and weed out potential terrorists from entering the U.S. or from remaining in the country undetected after entry. However, they affect all non-U.S. citizens traveling to, living or working in the U.S. in a variety of ways it is important to understand. Employers and family members of foreign nationals in the U.S. and businesses engaged in international commerce should also be aware of these altered processes and new legal requirements.

I. Visa and Passport Requirements

Most foreign nationals must apply for a visa at a U.S. consulate abroad before coming to the U.S. There have been several changes in the visa application procedure at U.S. consulates, in which certain classes of applicants face heightened background screening or additional processing that can greatly lengthen the process. There are also substantive changes to require certain visitors to obtain visas in circumstances where it would previously have been waived, and in the form of passport others must carry.

Under EBSVRA, all visa applicants from certain countries designated "state sponsors of terrorism" by DOS (currently North Korea, Cuba, Syria, Sudan, Iran, Iraq, and Libya) require a special background security check, known as a "Visas Condor" check, which will add significant delays to the normal visa processing period.

Separate from and predating EBSVRA, in November 2001 DOS on its own initiative, in a classified directive, began imposing a special background security check requirement for all male applicants aged 16-45 from a broader list of 26 predominantly Muslim countries, which carried a minimum of a 20 day additional processing period. In both this procedure and the Visas Condor check, the consulate must submit the applicant's name and biographical data to DOS headquarters in Washington, D.C., and affirmatively wait for DOS to manually check the person's name in its secure database sources and respond.

In practice, the "20 day hold" period grew much longer over the summer of 2002, leading to much public complaint. Many students, both prospective and returning, for example, were prevented from obtaining student visas in time to begin fall semester in the U.S. Ultimately, in October 2002 DOS officially terminated the broad-based 20 day hold procedure for applicants from the "list of 26" countries, determining that it was no longer needed in light of "enhanced interagency data sharing and additional clearance procedures" implemented in the interim. The Visas Condor check for applicants from a more narrow group of countries required by EBSVRA continues, and a consular officer may in his or her discretion require extra security check procedures for any other applicants where information warrants. It remains advisable that all visa applicants, but most particularly males from Muslim countries, should be prepared for possibly lengthy delays in the visa process at the consulate.

Certain broader classes of applicants are being required to submit new forms with extensive categories of background information. One such form, the "DS-157," added to the process in January 2002, must be completed by all male visa applicants aged 16-45 regardless of nationality (except for diplomatic or international organization representatives), and asks for lengthy personal detail on work, education and travel history, such as what countries the applicant has visited in the previous 10 years, whether the person has ever had a passport stolen, whether the applicant has any "specialized skills or training, including firearms, explosives, nuclear, biological or chemical experience," and whether the person has ever performed military service or "been in an armed conflict." Another, the "DS -158," added in July 2002, is required from student or exchange visa applicants and requests extensive background information on the applicant's work history as well as reference contact information where the information can be verified. Information provided on either of these forms may lead to further inquiry from the consulate or a background check.

Students and exchange visa applicants also face additional heightened scrutiny at the consulate through required use of an on-line system for electronic verification of the applicant's admission to or good standing in the school or exchange program. The academic institution or exchange program is required to directly enter certain information about the person into the system, and the consulate will access the information at the time of the visa application to check the applicant's bona fides. Beginning in January 2003, this will be accomplished through DOS access to the "Student and Exchange Visitor Information System" (SEVIS), a system being developed by INS for electronic information collection and tracking of foreign students and exchange visitors when they apply for visas and throughout their stay in the U.S. (see below).

EBSVRA required an interim system to accomplish this purpose for consulates to be in place before full SEVIS implementation in 2003, so effective September 11, 2002 DOS implemented its own "Interim Student and Exchange Authentication System" (ISEAS). In this system a consulate can obtain the electronic verification in several ways, including direct e-mail with the institution or program. Implementation of this system exacerbated the problem of visa delays for students in the fall of 2002 outline above.

In March 2002 DOS promulgated a regulatory change restricting "automatic revalidation" of visas. Under this procedure a temporary visitor to the U.S. who has extended or changed status with INS after the original admission may visit Canada or Mexico for 30 days or less and be readmitted without obtaining a new visa, based on INS' approval of the extension or change. This had been popular because it allowed foreign nationals in the U.S. who in fact wanted a new visa to travel to Canada or Mexico and apply at a U.S. consulate there as "third country nationals" knowing it was possible to come back to the U.S. without penalty if the visa was delayed or refused. The change now excludes from the benefit of automatic visa revalidation any person who applies for a new U.S. visa while outside, as well as nationals of the DOS designated state sponsor of terrorism countries. This will discourage the "third country national" visa application strategy, because now if the visa is delayed or refused the applicant will not be readmitted to the U.S. and must instead wait in Canada or Mexico or depart directly for his or her home country and reapply there.

DOS has stated its intent to propose a regulatory change that will revoke the nonimmigrant visa waiver for Canadian "Landed Immigrants" (non-citizen permanent residents in Canada). Under current regulations, such persons are allowed to enter the U.S. as nonimmigrants from Canada without a visa, the same as Canadian citizens. The proposal would subject Canadian Landed Immigrants to whatever visa requirements apply to their country of nationality. The proposal was expected to be published on November 1, 2002, but has been temporarily withdrawn pending additional interagency comment.

The form of visa placed in the passport itself is changing to incorporate enhanced security features. Consulates are now starting to use a special machine readable, tamper-resistant "Lincoln Visa," so called because an image of Abraham Lincoln appears in foil backing. The next change, due by October 2004 under a requirement in EBSVRA, will be to incorporate a unique form of biometric identifier in the visa such as fingerprinting.

Even for visitors allowed to come to the U.S. without a visa, changes are in store regarding the form of passport they must carry. Individuals allowed to come to the U.S. under the Visa Waiver Program ("VWP") (which permits nationals from 28 countries, mostly European, to visit the U.S. for 90 days or less for business or pleasure without first obtaining a visa) will be subject to enhanced passport requirements. Under EBSVRA, beginning in October 2004 to stay in the VWP participating countries must issue machine-readable passports that incorporate special new biometric and authentication identifiers and tamper-resistance features.

II. Admission Procedures at Ports of Entry

Heightened scrutiny of visitors continues when they arrive at a U.S. port of entry and face "inspection" by an INS officer. New technology, mandated by EBSVRA, will integrate several "lookout" databases so that the inspector can conduct more extensive real-time security screening. Visitors can also expect more pointed questioning about the purpose and itinerary of the requested stay in the U.S. and closer scrutiny of the visa and any necessary documents presented with the visa. The overall process can be expected to take longer. Anticipating this, EBSVRA repeals a requirement previously contained in 286(g) of the Immigration and Nationality Act ("INA") that the INS complete inspection of arriving passengers within 45 minutes.

The most significant change at the borders will be that INS is now required, by EBSVRA and the Patriot Act, to finally implement the "Integrated Entry and Exit Data System" that was originally called for in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") but postponed several times over concerns about lack of technology readiness and potential delays that would be caused at high traffic land ports. Under this system, an automated record will be created of every entry of every foreign national to the U.S., at all ports. The person's presence in the U.S. will be tracked in the computer-based system until a corresponding record of exit is created when he or she leaves. Currently, such records are generated for airport entries in a paper based format, later entered in a database known as the Nonimmigrant Information System (NIIS), while at land ports of entry they are usually not made at all.

In cases where the inspector suspects misrepresentation or intent to engage in activity incompatible with the requested admission status, there will be more instances of the person being searched for evidence, and/or being refused entry. Under an important change directed by a November 2001 INS policy memorandum, inspecting officers no longer have the discretion to admit foreign nationals under "deferred inspection" or "parole" status or with a waiver of documentary requirements, which was formerly common in instances when an arriving visitor was missing a required document or even the correct visa, but it appeared he or she could correct the deficiency and report back to INS or was otherwise entitled to the status and the lapse was an honest mistake. Now, such a grant of discretion may only be approved at the District Director level of INS.

Thus, visitors should understand the visa and documentary requirements of the admission status they are requesting before coming to the U.S., and the importance of dealing with the inspector upon arrival in a clear, respectful and honest manner and fully articulating their intended activities in the U.S.

Finally, in April 2002 INS published a proposed rule that would eliminate the current presumptive 6 month minimum period of admission for visitors for pleasure under a "B-2" visa. Instead, the inspector would question the visitor on the proposed activities and itinerary and grant an admission period that is "fair and reasonable for the completion of the purpose of the visit," which, the proposal suggests, would be 30 days or less in the majority of instances. The maximum admission period for a B-1 (business) or B-2 visitor would also be reduced to 6 months from the current 1 year.

Also under the April 2002 proposed rule, a visitor seeking to visit schools as a prospective student while in the U.S. and then apply for change to student status must state that intention at the time of entry and obtain a special annotation from the INS inspector on the form I-94 entry card.

III. New Requirements After Arrival In The U.S.

Several further initiatives from INS are designed to facilitate monitoring foreign nationals in the U.S. more closely after entry. These changes create reporting obligations for foreign visitors, and in the case of students or exchange visitors, for their schools or exchange program sponsors.

Most widely publicized in recent months has been INS' announcement of plans to strictly enforce a long standing but previously ignored requirement that all non-citizens in the U.S. more than 30 days report any change of address to INS within 10 days of the move. This applies to both temporary visitors and permanent residents. A special form (the "AR-11") and instructions for submitting the notice are available on the INS web site, and can be accessed by clicking here. Failure to provide the notice can be a ground for deportation or other penalties.

Related to the AR-11 change of address notification requirement, in July 2002 INS published a proposed rule which requires any alien applying for an immigration benefit to acknowledge that he or she has received notice of the requirement and understands that INS will use the most recent address provided by the person for all purposes, such as Notices to Appear commencing deportation proceedings, and will not be responsible for the person not receiving communications from INS if he or she in fact moved but failed to inform INS.

Next, an INS final rule promulgated in August 2002 creates a system of "special registration" for certain classes of temporary visitors, to be known as the National Security Entry-Exit Registration System ("NSEERS"). Symbolically, it becomes effective on September 11, 2002. Those subject to this procedure are (1) all nonimmigrant visitors (other than diplomatic or international organization representatives) who are or who are believed to be nationals or citizens of certain selected countries to be designated by Federal Register publication, (2) individual nonimmigrant visitors who meet or who are believed to meet "certain pre-existing criteria" determined by the Attorney General and DOS to indicate that "such aliens' presence in the United States warrants monitoring in the national security [or law enforcement] interests." Foreign nationals subject to special registration must be fingerprinted and photographed by INS upon arrival in the U.S., and then must make specific reports to INS, in person, demonstrating compliance with the terms of admission, at approximately 30 days after arrival, every 12 months after arrival, upon certain events such as a change of address, employment or school, and at the time of leaving the U.S.

The initial Federal Register publication of "selected countries" for categorical special registration consists of Iran, Iraq, Libya, Sudan and Syria. The Attorney General's separate "pre-existing criteria" warranting individual designation for special registration were discussed in a September 5, 2002 INS memo, which was intended to be for limited official use only but was obtained by the press and made public. The first stated criteria was simply to include all males aged 16-45 who are or who are believed to be citizens or nationals of Pakistan, Saudi Arabia and Yemen. Other criteria include an alien's history of unexplained trips to certain countries, a previous nonimmigrant visa overstay, or the alien's behavior, demeanor or answers to questions.

The public release of this proposal to make a de facto addition of such large, ostensibly U.S. ally countries as Pakistan and Saudi Arabia to the blanket criteria for special registration generated much controversy. Further public concern resulted from the fact that by including all "nationals" special registration will apply to persons born in the designated countries who may have gone on to become citizens of other countries such as Canada. This led to the unusual action of the Canada Department of Foreign Affairs and International Trade issuing a warning to its citizens who are nationals of the eight named countries to "consider carefully whether they should attempt to enter the United States for any reason, including transit to or from third countries," because of the heightened attention they would face in the NSEERS system.

In fact, at press time for this article INS has not yet begun applying special registration on a blanket basis to nationals of Pakistan, Saudi Arabia or Yemen entering the country, and has not confirmed when or if it still intends to do so. However, in a separate significant expansion of the program, INS has published two Notices requiring special registration in person for persons who are already in the country as nonimmigrant visitors under a previous admission. First, in a November 6, 2002 notice, INS requires males over 16 who are nationals or citizens of Iran, Iraq, Libya, Sudan or Syria admitted before the September 11, 2002 effective date of the procedure at ports of entry to report to a local INS office to register, by December 16, 2002. Persons leaving before that date are exempt.

In the second notice, published November 22, 2002, anyone who is a male born on or before December 2, 1986 and a national or citizen of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, or Yemen, who was inspected by the Immigration and Naturalization Service and was last admitted to the U.S. as a nonimmigrant on or before September 30, 2002 and will remain in the United States until January 10, 2003, must report to the local INS office for registration by that date.

This procedure is applicable to any alien who is a national or citizen of a designated country, notwithstanding any dual nationality or citizenship the person may have obtained with another country. The INS has posted information about special registration in a special page on its web site, which may be accessed by clicking here.

Next, INS is beginning implementation of the Student and Exchange Visitor Information System ("SEVIS"), a computerized tracking system for foreign nationals in the U.S. in student or exchange visitor status. A responsible official for the school or exchange program will be required to enter pertinent information about the student or program participant into the online SEVIS database, to verify that the person properly showed up after admission to the U.S. to begin the schooling or program for which he or she was admitted, and to verify continued attendance at regular intervals over time. The responsible official must also report when the person has graduated or left the school or program. Persons who are reported in SEVIS to have failed to enroll, taken an unauthorized reduction in course load, dropped out or otherwise failed to comply with the terms of the program will automatically be deemed "out of status" and come to the attention of INS personnel.

As described above, SEVIS will also be used by U.S. consulates overseas to verify a student or exchange visitor's admission to or participation in the relevant program at the time of a visa application.

Finally, in April 2002 INS published an Interim Rule, effective immediately, that prohibits a B-1 or B-2 nonimmigrant visitor to enroll in a course of study prior to obtaining approval for a change to nonimmigrant student status from INS. Under the previous rule, such a visitor in the U.S. could begin attending school without first obtaining approval of the change of status request, as long as it was filed.

IV. Changes in INS Processing of Petitions and Applications

INS processing of application and petitions filed by foreign nationals or their U.S. employers or family members has been affected by national security related changes. A new step was added in March 2002 whereby the examiner must conduct a background check for every name appearing on an application or petition in the "Interagency Border Inspection System" (IBIS) database. The check by itself is a brief procedure, but the cumulative effect of adding it in every case has caused overall processing times to drastically lengthen. An H-1B petition that formerly took 30-60 days to process has now been taking 4-6 months, for example.

As well, INS headquarters has instituted a stated policy of "zero tolerance" for cases where it appears an applicant or beneficiary has violated status or overstayed an admission, or the application or petition has been filed past a required deadline. Formerly examiners showed a fair amount of discretion in forgiving minor lapses of this nature. Discretionary relief may still be requested when there are "extraordinary circumstances" beyond the person's control, but it can be expected to be far less freely given.

Author's note: This article is an expanded and updated version of an article that was originally published in the November/December 2002 issue of the Boston Bar Journal, volume 46 number 5, which may be accessed by clicking here.

About The Author

George N. Lester, of the Foley Hoag LLP Immigration Practice Group, is a frequent speaker and author on business immigration topics and is active in the American Immigration Lawyers Association. Mr. Lester was assisted in this article by Patricia Wedding, a Legal Assistant at Foley Hoag LLP and student at New England School of Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.