In other immigration developments stemming from the September 11th tragedies, there is much to report.

Foremost in the headlines has been the congressional plan to restructure the INS. While the INS has been restructured many times, the current proposal appears to be the most sweeping thus far. Congress proposes to break up the INS into two separate agencies. One agency would be responsible for providing benefits to eligible aliens. The other agency would be responsible for enforcement of immigration laws and policies. It is unclear how the two agencies are going to collaborate with one another, given that their work overlaps to a substantial extent. For example, an alien may apply to the benefits agency branch. His/her application may be referred to be enforcement agency. Therefore, the aliens’ case may be transferred from one agency to another, giving rise to instances where delay, loss of a file, or jurisdictional issues could prove detrimental to an applicant’s lawful interests. It is extremely crucial in this reorganization process that the agency heads have a close knit interaction in order to keep track of all of the aliens in the system. This need will be felt most at the district offices, where the benefit and enforcement branches currently work side by side. In his address to the nation on June 6, 2002, President Bush indicated that he would seek congressional approval for his plan to develop a new cabinet-level department of .Homeland Security. that would include the INS. How this inclusion will affect the proposed INS reorganization remains to be seen.

The INS has already begun to crack down on foreign students entering the United States. Since many of the 9-11 hijackers entered the USA as students, this issue has become a top priority. Individuals seeking to enter the United States as tourists or some other non-immigrant status are now forbidden from enrolling in studies at schools or universities unless the INS has first approved their transfer to student status. Intending students who enter on a .B. visitor visa must inform the INS or customs officer at a port of entry that they are entering the USA with the potential to pursue further studies. Failure to do so will result in denial of the visitor’s application to subsequently change status from visitor to student, and may then subject the alien to removal. The INS has also proposed a regulation to deter visa overstays; the Service is proposing to limit the initial period of time that a visitor may enter the United States from the current six month maximum to a mere 30 days. This latter limitation has prompted opposition from the tourism industry and immigrant advocates. Finally, in the most recent development, the INS is proposing to fingerprint and photograph all visitors from Arab countries. This of course, raises its own set of civil rights and constitutional issues.

In keeping with its desire to ensure that aliens remain in valid status at all times within the U.S., the Department of State changed its regulations on automatic visa revalidation. To explain, in the past, the Department of State approved reentry to the United States for individuals with expired visas but valid I-94’s who had departed the United States to contiguous territories (Mexico, Canada, and the Caribbean islands). The Department of State now takes the position that an alien who applies for a new visa and is denied such visa will not be allowed to re-enter the United States from a contiguous territory even if he or she has a valid I-94. Therefore, if for some reason the visa is not issued, then the alien would have to return to his or her home country and reapply for a visa there. For details on changes to the visa revalidation regulations, please see a related article on my website titled “Restrictions on Visa Issuance”

In another recent development, the Department of Justice has announced that it will seek to have state and local law-enforcement officers assist in the enforcement of the nation’s immigration laws and policies. Under that scenario, a traffic stop could result in questions about a driver’s or passenger’s visa status and ancestry. While the idea of involving the local law enforcement is laudable, such involvement may place a substantial burden on police officers besides invoking the specter of civil rights violations. For instance, while a green card may be easily carried, no naturalized citizen carries his or her Certification of Naturalization with them, and likewise very few nonimmigrant visa holders carry their passports with them at all times.

The Immigration and Naturalization Service is purchasing information from various private sources and all so the databases of several Latin American countries. This information is obtained, from among other sources, the U.S. firm of “ChoicePoint.” The INS has indicated that any information it retrieves will be used to confirm identity, establish alienage or citizenship, and investigate alien smuggling, trafficking, and other violations of federal immigration law.

Broader enforcement of the law together with an expansion of the federal databases may perhaps be a “backdoor” attempt to institute a national ID card. While most Americans may have been against this concept before September 11, the current general public perception is not clear. What is clear is the administration’s willingness to use its executive power to implement policies and procedures that appear to directly impinge upon civil and individual rights.

In conclusion, this is scarcely the last word on the subject area. The INS and the executive is attempting to implement, by regulation, what it may be unable to do through legislation. In the coming months, it will be interesting to see how the INS reorganization affects the millions of honest, law-abiding, and legal residents and aliens in the United States. Visa overstays, even inadvertent, have significant penalties. Innocent applications for extensions or change of status could attract unwarranted and potentially detrimental governmental response.

It is critical that foreign nationals research and understand the ever-changing complexities of immigration and visa law. Alternatively, it is critical that an alien seek and receive competent legal assistance on these issues and the potential impact of any changes on their lives.

Copyright Farhad Sethna, 2002