Immigration Provisions in the Intelligence Reform and Terrorism Prevention Act of 2004

On December 17, 2004, President Bush signed into law the Intelligence Reform and Terrorism Prevent Act of 2004 (“the Act”). The Act includes various important changes to U.S. immigration laws. Below is a summary of the immigration provisions which affects U.S. employers and their foreign national employees.

• Mandatory in-person interviews of visa applicants: The Act amends the Immigration and Nationality Act (“INA”) to require consular interviews for applicants for nonimmigrant visa applicants between the ages of 14 and 79. Waivers of the interview requirement may be granted in very limited circumstances. As the Department of State (“DOS”) has already implemented this in practice, the law simply codifies the current DOS protocol. An interview may be waived by a consular official if: (1) the foreign national is applying for a visa that has expired no more than 12 months ago; (2) the applicant is applying for the same visa classification; the applicant is applying at the consular post located in his or her country of residence; and (3) there is no indication that the foreign national has failed to comply with U.S. immigration laws and regulations in the past. Employers and employees should realize that the mandatory interviews could cause substantial delays in the processing of nonimmigrant visas, thus proper planning is required to ensure that employees are able to meet their employment obligations.

Visa application requirements. The Act amends the INA to include language that requires foreign nationals applying for a nonimmigrant visa to complete and accurately respond to any request for information contained in the application. Generally, USCIS in the past, issued a request for additional evidence if there was insufficient evidence to adjudicate the matter. However, would have this new provision could lead to the issuance of denials rather than evidentiary requests. Employers and employees should be aware that they may be requested to provide more documentary support prior to filing which will minimize denials and adjudicatory delays.

• Additional grounds for removal and deportability: The Act changes the INA by adding the following grounds for removal and deportation: 1) The revocation of a nonimmigrant visa or other documentation authorizing admission into the U.S. as a nonimmigrant by the Department of State as a ground for removal. Revocation of the visa or other documentation would be reviewable in a removal proceeding if such revocation is the sole ground for removal; 2) Aliens who have received military training from or on behalf of an organization that, at the time of training, was designated a terrorist organization; 3) Aliens who have committed acts of torture or extrajudicial killings abroad; or 4) Foreign government officials who, during their service, were responsible for or directly carried out particularly severe violations of religious freedom. Activities related to these provisions of inadmissibility and deportability committed before, on, or after enactment of this provision shall render the alien inadmissible or deportable from the U.S.

• Accelerated implementation of a biometric entry and exit system: The Act calls for the accelerated deployment of the US-VISIT, which is a biometric entry and exit system that helps verify the identities of individuals entering and leaving the U.S. based on identity documents and physical features. As of January 2005, US-VISIT was implemented at the busiest U.S. land and sea ports. It will be expanded to the remaining 115 land ports by the end of 2005.

• Documents required for entry: The Act calls for individuals entering the U.S., including U.S. citizens and visitors from Canada and other Western Hemisphere countries, to present a passport or other document sufficient to denote citizenship and identity. This provision will not affect most foreign nationals coming to the U.S., including Mexicans, as many already require a visa, border crossing card, or machine readable passport to enter the U.S.

• Standards for issuing identity documents: The Act requires the establishment of federal standards to ensure the integrity of the three basic documents used to establish identity in the U.S.: birth certificates; state-issued driver’s licenses and identification cards; and social security cards. The standards will include documents that the applicant must provide for proof of identity. The bill does not mention whether any standards will include proof of legal presence in the U.S.

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