Significant Changes to Immigration Proposed as Part of "Anti-Terrorism" Legislation

Many changes to immigration regulations and procedures have been discussed since the tragic events of September 11, 2001. We would like to provide you with information concerning some of these important proposals. Please note that the specific provisions of these proposals are rapidly evolving. Please continue to check the Greenberg Traurig Business Immigration website to receive the most current information.

Sweeping changes to current immigration law have been proposed as part of the administration’s "Mobilization Against Terrorism Act". This legislation, currently being debated in Congress, proposes several dramatic changes to immigration law which would significantly expand the INS’s powers and severely limit judicial review. The House Judiciary Committee has passed its own version of the anti-terrorism proposal known as the "Patriot" Act, and the Senate Judiciary Committee is reporting that it has reached agreement on the provisions of the anti-terrorism package as well. The Senate legislation largely tracks the House version, but differences remain which must be worked out in conference. The full House is expected to vote on the proposal this week, and we anticipate that the Senate will do the same.

The "Patriot" Act and the Senate legislation state that the INS Commissioner, after consultation with the Director of the FBI, may recommend to the Attorney General that an alien be "certified" if the INS has reasonable grounds to believe the alien may further or facilitate acts of terrorism….or any other activity that endangers the national security of the United States. The administration’s proposed legislation contains a provision which makes the "certification" of an alien under the procedure described above not reviewable by any court. However, the compromise legislation reached by the House Judiciary Committee specifies that only the Attorney General or the INS Commissioner would have the authority to "certify" an alien, and it subjects the decision to certify an alien to judicial review by allowing for habeas review in the U.S. District Court for the District of Columbia.

Under the compromise proposal passed by the House Judiciary Committee, a "certified" alien is conclusively presumed to be removable from the United States. The proposal mandates that if the Attorney General concurs with the recommendation to "certify", he shall take the alien into custody. The Attorney General may detain an individual suspected of terrorist activity for up to seven days. After that time, the government must either file criminal or immigration charges against the alien, or release the alien. However, the compromise legislation allows continued detention after the seven day period, if and when the alien is found removable, even if relief from removal is granted, when the Attorney General continues to certify that there are reasonable grounds to believe the person is a terrorist or is involved in terrorist activity. Judicial review of the detention of "suspected terrorists" detained under this provision is only available by habeas review in the U.S. District Court in the District of Columbia.

The immigration provisions of this proposal would apply to all aliens, no matter when and how they entered the U.S. and no matter if their conduct occurred before or after passage of the proposal. Please note that the Senate is reporting that a compromise has been reached with the administration on the provisions of the legislation. The Senate’s version of the legislation largely tracks the House version, but there are still some differences to be worked out in conference.

Other legislative proposals are being discussed. Senator Helms is currently drafting legislation to suspend the current Visa Waiver program which allows citizens of specified foreign countries who are entering the U.S. under certain limited conditions to enter without a visa. Senator Bonds is proposing legislation which includes provisions to tighten eligibility standards for the Visa Waiver Program and to require the use of biometric technology within a tamper-proof visa.

Some government officials are discussing changes to the student visa programs, such as F, J and M visas. Changes discussed include changing the period of stay for individuals in F, J or M status from "duration of status" to a specified period of time; more closely monitoring individuals in the U.S. in F, J or M status; and increased responsibility, and potential liability, for Foreign Student Advisors and Responsible Officers. Senator Feinstein has announced her intention to introduce legislation which would significantly change the way student visas are issued and tracked. Her legislation would include a six month moratorium on all student visas.

At this time, none of the above mentioned proposals have been implemented. Nevertheless, there is a heightened sense of security at all U.S. consulates, embassies, and ports of entry. We strongly recommend that all foreign nationals in the U.S. take the following steps to minimize any difficulty they might have in traveling outside the U.S., and inside the U.S. as well:

• Keep copies of documentation clearly showing your status with you at all times; i.e. your passport; your "greencard", if applicable; or your I-94 card and a copy of your I-797 approval notice.

• If you have a pending petition, have a copy of the petition and a copy of the receipt notice with you.

• Be prepared for delays at consulates and embassies and ports of entry due to more thorough processing at both the INS and the U.S. State Department.

• If questioned by and INS officer or other government official regarding your immigration status, respond truthfully and courteously to the request, but do not volunteer information which was not requested.

• If you have an appointment at a U.S. embassy or consulate, call ahead to make sure that they are keeping in person appointments. Some U.S. embassies and consulates have suspended in person interviews for an indefinite period.

In general, if you need to apply for a visa, check with your immigration attorney to make sure that the U.S. embassy or consulate you are applying at has not announced any changes to the visa application procedure.