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October 2001 Newsletter
As a general overview statement, the "official" policy of the United States is that normal business operations should resume which would include such activities as: visa issuance, case adjudication, and a myriad of other actions which affect the activities of foreign nationals in this country. However, we have unquestionably noticed a sharp new emphasis on enforcement related actions. The Administration has introduced in the Congress a far reaching anti-terrorist proposal which contains various immigration related provisions including expanded grounds for lengthy and/or indefinite detentions of suspected foreign terrorists. We have noticed heightened security and inspection procedures implemented at the land border crossings with Canada and Mexico as well as at the various ports of entry. While U.S. Consulates worldwide are operational, there is unquestionably a change in Consular practice in such areas as: hours of operation, issuance standards for new nonimmigrant visas, institution of various background security checks, procedures for scheduling immigrant visa interviews, and a reduction in consular services offered to non-U.S. citizens. Internally, we have received episodic reports of the detention for questioning of foreign nationals. There also seems to be a growing emphasis not only on tracking the legality of status of foreign nationals living in this country, but in creating long-term penalties for foreign nationals who have resided here without authorization. We again want to state forthrightly that U.S. Government policy and conduct continues to oppose any type of ethnic profiling or immigrant "bashing" based on nationality or citizenship. Perhaps the most basic macro issue concerns whether this new, heightened emphasis on security will serve as a justification for imposing restrictions on our civil liberties. We would suggest that this discussion be premised on four (4) core considerations: 1) that this country historically has achieved its greatness and its uniqueness precisely because of and not in spite of our commitment to civil liberties, ethnic diversity, and political/social pluralism which has created the critical mass for an unparalleled unleashing of the human genius; 2) that given the importance of these values to the "American Way of Life", both governmental institutions as well as society as a whole bear a large burden to justify any diminution in the scope of our personal liberties; 3) that we are faced with an unprecedented threat to our national welfare and security emanating not from nation states, but rather from splinter groups so as to call for new, innovative responses to these threats; and 4) that whenever a liberty is surrendered, it in all likelihood is taken away permanently and unequivocally so as to intensify the need to carefully and indeed with reluctance surrender areas of our personal, political, and civil liberties. In trying to get a sense of the current changes arising in the aftermath of the World Trade Center attack, one of the most interesting - if not outright inspiring - features is the strong commitment from both public and private sources to resume "business as usual". Whereas this type of terrorist attack in many other societies would serve as a prelude to draconian measures aimed at minority and alien population groups, we believe that any such revisions to immigration law, policy, and procedure will continue to receive public debate and careful consideration within the Congress and the Administration. But nevertheless with the caveat that our policies, procedures, and behavior are currently in a state of change, I would like to provide some additional thoughts on current immigration related developments. The United States has instituted a systematic program of inspection not only for entering foreign nationals, but also for those departing the United States. Therefore, it is a matter of extreme importance that foreign nationals be able to document the legitimacy of their residence in the United States. Please note: the burden to establish this legitimacy lies with the foreign national rather than with the U.S. Government inspecting agencies. We suggest that foreign nationals now make it a habit to carry on their person evidence of their legality in this country. This admonition is particularly important when departing from as well as when arriving to the United States. For employment-based nonimmigrants, we suggest that foreign nationals have available for inspection the following: I-797 approval notice; I-94 form; copy of the petitions and applications filed with the relevant governmental agencies; and confirmation of employment with the designated petitioning employer (i.e., employment letter and even copies of recent pay-stubs). For students, suggested evidence would include: I-94 form, I-20 or IAP 66 form (DS-2019), evidence of current enrollment in the course of academic study, and course transcripts. It goes without saying that foreign nationals should make sure that they hold valid passports which are valid at least six months into the future. Above all, foreign nationals as never before should thoroughly understand the terms, conditions, and the scope of their allowable activity incidental to their visa status, and to then be able to document their past and ongoing adherence to their visa status. Foreign nationals who violate their immigration status or who are unable to establish satisfactorily the legitimacy of their activity in the United States should expect to be entered in various databases generally known as "Lookout Books". These databases list foreign nationals who are considered to pose some level of risk to the United States. Please note that previous periods of unauthorized residence or other immigration irregularities may well be considered to fall into this category. At present, the Immigration and Naturalization Service, the Department of State, and even the international carriers all maintain their own databases which are based on concurrently distinct and overlapping criteria. Particularly in this current period, any foreign national appearing in any such "Lookout Book" may well experience major delays and inconveniences in receiving any immigration-related benefits. Once entered into such a database, it is next to impossible to gain extrication. I continue to believe that it is prudent for foreign nationals - in particular, those holding temporary, nonimmigrant visas – to refrain from international travel unless strongly required for business or personal reasons. This advice is predicated in part on the belief that international travel has become much more cumbersome owing to the implementation of enhanced security measures. However, as noted in my previous article, another major area of concern is that foreign nationals may lose many legal protections upon seeking re-entry to the United States which they possess when remaining within the borders of this country. Prior to embarking upon a trip abroad, foreign nationals should further assess whether they already hold a visa so as to provide for re-entry to the United States or whether it will be necessary to apply for a visa through a U.S. Consulate abroad. While most U.S. Consulates have resumed normal operations, many other Consulates now have altered their hours of operation and reduced the scope of their operations – particularly for services provided to non-U.S. citizens. These changes generally are not posted to the Embassy’s Websites, but are implemented in response to local exigent circumstances. Furthermore, we have also noticed immeasurably greater difficulties in being able to speak directly with various consular officials on individual case adjudications. Under U.S. immigration laws, a Consular official has broad discretion under Section 221(g) of the Immigration and Nationality Act (INA) to refuse the issuance of a nonimmigrant visa and we have seen a sharp escalation of recourse to this particular legal provision. We have also noticed that U.S. Consulates are becoming more resistant to the issuance of first-time visas as opposed to the renewal of visas previously issued. While all temporary, nonimmigrant visa applicants should expect delays as the Consulates go through various security and related background checks, these delays and uncertainties become even greater for first-time applicants. In the direct aftermath of the WTC terrorist attack, it appears to be increasingly difficult for foreign nationals to obtain visitor visas which legally requires the applicant to establish an intention of returning to their home country following a temporary trip to the United States. Whereas many U.S. Consulates maintain rather expedited visa issuance procedures for a wide range of business professionals, we have already seen a slowdown in visa processing schedules as the various Consulates become progressively more prone to conducting background security checks. As stated above, the U.S. Department of State maintains extensive databases - generally, called "Lookout Books" - which list foreign nationals who may pose some level of potential problems within the United States. Particularly in this period of time, it is extremely difficult for an individual to extricate himself/herself from this type of listing For years, many foreign nationals as a matter of convenience have processed for various immigration visas and benefits through the U.S. Consulates located in the contiguous countries of Canada and Mexico. Thus far, these Consulates have continued to provide nonimmigrant visa processing services to Third Country Nationals, although we expect to see an increase in waiting times for interviews, delays upon re-entry to the United States, and instances of discretionary denials. Both Canada and Mexico have considerably tightened up their own policies and practices pertaining to the admission of foreign nationals entering from the United States with the specific intention of applying for U.S. visas. Whereas Mexico had generally maintained rather expedited, facilitative provisions for foreign nationals processing at U.S. Consulates located in close proximity to the border, Mexico has now instituted rather formal and time consuming visa provisions covering nationals from a number of countries. Canada has now instituted a Website updated in two hour increments which lists the expected waiting times at land ports of entry. http://www.ccra-adrc.gc.ca/customs/general/times/menu-e.html In conclusion, we would suggest adherence to the following three (3) cardinal rules governing immigration-related activities during this current period.
By Robert D. Aronson. *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. |