Major Immigration Initiatives

The full impact to U.S. immigration resulting from the September 11^th attacks on the United States is unknown. Needless to say, the breakdown in communication between the intelligence community and the INS and Department of State, which enabled terrorists to obtain visas and legally enter the United States must be addressed. However, there is no doubt that some anti-immigrant groups are using the CIA’s and FBI’s failures to relay information as a subterfuge to launch a xenophobic campaign against immigrants and the immigration laws that have contributed to the longest period of economic growth in U.S. history. This edition of the Immigration Observer explores the Congressional and administrative activities that could impact employers, their workers, and families.

The tragic events of September 11, 2001 have placed the United States immigration system in the spotlight on Capitol Hill. In response, Congress and the White House have announced measures to defend the country from foreign terrorists, which directly impact foreign nationals, their employers, and their U.S. citizen and permanent resident family members. These measures include the enactment of the USA Patriot Act of 2001, an executive order regarding military tribunals, administrative restructuring announcements, and proposed legislation. This attached articles summarizes these initiatives starting with the USA Patriot Act, the only piece of legislation that has been passed to date.

Fall 2001 Major Immigration Related Initiatives

ENACTED LEGISLATION

On Friday, October 26, President Bush signed into law the USA PATRIOT ACT. This legislation contains provisions that provide relief to foreign nationals whose family members were victims of the September 11^th attacks in New York, Washington, D.C., and Pennsylvania. The final version also contains provisions that expand the definition of terrorism and terrorist activity for the purposes of holding individuals to be inadmissible to the United States and for removing individuals from the United States. The USA Patriot Act provides for the mandatory detention of aliens whom the Attorney General suspects have engaged in terrorist activity, and limits judicial review in these types of cases. While the USA Patriot Act contains these broader powers, it is less restrictive than the Bush Administration’s initial legislative proposal to Congress, which would have granted uncontested power to the Attorney General to detain individuals suspected of terrorist activities indefinitely without an opportunity for an immigration judge to review the Department of Justice’s actions.

November 13, 2001 Executive Order Regarding the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

President Bush authorized the Secretary of Defense to immediately detain and try any non-citizens before a military tribunal if they are believed to be or have been in the past members of the Al Qaeda terrorist network, or have engaged in, or aided and abetted, or conspired to commit terrorist acts, or knowingly harbored members of Al Qaeda or other terrorists.

Effective immediately, the State Department now requires new security clearances at US consulates worldwide for some nonimmigrant visa applicants. Individuals between the ages of 16 to 45 from countries with a high concentration of Arabs and Muslims are subject to these security clearances, which take 20 days at a minimum to complete. Nonimmigrant visa applicants who are in possession of a valid I-94 card, have not had a visa denied for any reason, and are renewing their visas with the same employers may return to the U.S. while the application is pending. All other nonimmigrant applicants must wait to seek admission until the visa is approved.

Citizens, nationals and permanent residents of the following countries are subject to the additional clearance process: Afghanistan; Algeria; Bahrain; Djibouti; Egypt; Eritrea; Indonesia; Iran; Iraq; Jordan; Kuwait; Lebanon; Libya; Malaysia; Morocco; Oman; Pakistan; Qatar; Saudi Arabia; Somalia; Sudan; Syria; Tunisia; Turkey; the United Arab Emirates; and Yemen.

Significantly, the Department of State originally announced the cancellation of all nonimmigrant visa interviews at the U.S. Consulates in Canada and Mexico for all third country nationals (individuals who are not residents of Canada or Mexico), including those for individuals who are not from the countries listed above.

On November 14, 2001, the Department of Justice announced a plan to restructure the Immigration & Naturalization Service into two distinct bureaus, one to provide service and the other for enforcement. Attorney General Ashcroft stated yesterday that "[the] President is concerned that the INS has been hindered by the current structure of the agency to perform its responsibilities of welcoming new immigrants and protecting our borders by enforcing immigration laws." Officials estimate that the plan will be in effect by fiscal year 2003. It does not require Congressional approval. Interim measures, including the Commissioner’s appointment of a Director of Restructuring, will occur immediately. Also, the District Director and Regional Director positions will be eliminated to streamline the chain of command within the agency.

According to an email sent to the American Immigration Lawyers Association (AILA) from the Department of Justice (DOJ), the Department plans to interview approximately 5,000 foreign nationals in connection with the investigations of the September 11 terrorist incidents. The interviews will be coordinated through the DOJ’s Anti-terrorism Task Forces with U.S. Attorneys in each district and will include the assistance of local law enforcement officials. Each task force is receiving a list of individuals to interview.

These bills would require the INS, Department of State, and Central Intelligence Agency to work together to develop an information-sharing plan, which the INS and the State Department would use to screen visa applicants and applicants for admission (permanent residence applicants). In addition, if passed and signed by the President, this legislation would mandate the implementation of an entry/exit system utilizing a technology standard to confirm identities and use biometric identifiers with arrival departure records, visa and other immigration documents. The legislation also mandates the INS to conduct reviews of educational institutions authorized to accept foreign students and the Department of State to perform similar audits of exchange visitor programs.

This legislation’s objectives are similar to S.1618/H.R. 3205 in that it calls for government agencies to work together to share information and to develop a database to screen visa applicants. This legislation would require certain government-issued identification cards to have biometric information regarding the individual. Citizens and non-citizens would be required to carry these new forms of identification.

This bill would limit the number of H-1B nonimmigrant visas issued in any fiscal year. At this time, there is not a companion bill in the Senate.

This proposed legislation calls for a temporary moratorium on the issuance of student (F-1) and exchange visitor (J-1) visas, as well as to change the reporting requirements for universities authorized to accept foreign students. The Senate has not introduced a similar bill.

This bill calls for the reorganization of the Immigration & Naturalization Service. It lacks a companion bill in the Senate at this time.

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