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November 2001 Newsletter
President George W. Bush signed the "Patriot" Act into law October 26, 2001. The full title, "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" has several parts aimed at deterring and punishing terrorist acts in the U.S. and provides law enforcement (including the U.S. Immigration and Naturalization Service*) with investigatory tools to do so. Title IV includes a provision for a substantial increase in personnel as well as funds for the INS to maintain the U.S. border with Canada. Another Section, 414, deals with visa integrity and security which calls for a speedy implementation of the integrated entry and exit data system originally discussed by Congress in 1996. Yet another Section, 416, requires the full implementation of the foreign student visa monitoring program which also was originally conceived in 1996. The events of September 11, 2001 made it clear that the INS has no practical means of identifying aliens admitted to the U.S. legally on temporary visas but failing to leave at the expiration of their lawful periods of stay. Although all temporary visitors are required to have I-94 departure cards when they enter and are required to turn them in to the airlines when they depart, they may or may not get sent to the INS by the airlines. If the INS received them, they were essentially accumulating by the millions without being put into a computer system database or in any other form making the information accessible. The sad truth is that in the context of the resources that the federal budget has allocated to the INS and under the direct pressure from Congress, a priority of INS has been to locate and deport aliens who have committed crimes in the U.S. with little money left over to identify or find aliens who overstayed their temporary status. Up until September 11, this was considered to be "normal" in light of resource allocation and priority-setting. After September 11 and the vast coverage by the media, it came as a shock to the American public that the INS did not know who overstayed and where they could be found! This was an issue eight years ago as well with the first bombing of the World Trade Center when it was discovered that one of the conspirators was an overstayed foreign student. Thus, a major immigration change in 1996 included the provision requiring the INS to put into place a computerized entry-exit control system to allow the INS to identify aliens who had not left the country upon the conclusion of their authorized stay. Clearly, the existence of such a system would not have addressed the lack of resources to actually track down and remove those overstays however it would have been a first step. The sad truth is that the INS has not been in the position to put into place an electronic system to handle 30 million nonimmigrant admissions annually. Furthermore, the governments of Canada and Mexico have traditionally expressed their displeasure with the potential for extremely long lines at ports of entry and members of Congress from states bordering with those two countries concurred. Ultimately, the booming economy and the benefits of globalization all pointed towards easier access to the U.S. - not barriers that would impede or discourage travelers. As it became clear that the September 11th hijackers entered the country legally, the public began to question how the INS failed to have a system for keeping track of who entered, who remained, where they are, and when they leave. Until the Patriot Law, the question was whether the U.S. was ready to devote additional billions of dollars to analyze the raw data generated by the entry-exit control system and actually track down, find, and deport those are here unlawfully. The answer now is yes and this will come about! It is also expected that there will be greater pressure on Canada and Mexico to tighten up on their own admission requirements so that fewer foreign nationals will be able to gain entry to those countries and then find a way to enter the U.S. There has always been doubt as to whether the INS has the ability to make finding and deporting overstays a priority. There are those who argue that the substantial amount of money that would be involved could be more effectively spent on better screening of visa applicants in their own countries, better intelligence to discover and maintain an updated lookout book, and simply more enforcement. The new law seems to suggest that foreign students and for that matter, all temporary visitors to the U.S. will be placed on a much "tighter leash" meaning that they will not be admitted for as long a timeframe as in the past. Of course, this will then result in increased applications to extend or change status which in turn will clog an already clogged Immigration Service. Money and staff are important but so is morale and whether the INS can meet the challenges of greater oversight will be left to be seen. By Jerome Ingber * At the time this article was written, the Immigration and Naturalization Service (INS) served as the main immigration body of the U.S. Government. Since March 2003 immigration processing functions are a part of the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS).
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Aronson & Associates, P.A. |