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US IMMIGRATION UPDATES
IMMIGRATION / 01 OCT 2001 |
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Possible Immigration Consequences of the Events of Sept 11,
2001 |
By Vanessa S. Barcelona
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The events of September 11, 2001 are tragic, horrifying, and
astounding. Always the optimist, perhaps even too much of an idealist, I
am continually amazed at man's never-ending (and seemingly
ever-increasing) capacity for inhumanity.
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Needless to say, we will feel
the effects of these attacks for a very long time and they will
affect us in every way we can imagine. This being said, let us focus --
or try anyway, to focus -- our discussion today on what the possible
immigration consequences are to the recent terrorist attacks in New York
and D.C. It will be safe to say that Congressional discussions on the
possible extension of 245(i) will most likely be tabled for now,
together with other important domestic issues such as education, the
budget, social security, etc.
These very important matters -- at least
they were of paramount importance before 9/11/2001 -- have
understandably been eclipsed by the more urgent business at hand. War is
not just imminent, folks. For if the past weekend's headlines are to be
believed, we are at war. I believe what we will see in the coming days
and weeks, and perhaps months, is not so much a change in the laws
regarding immigration; but rather, a re-examination of how the
government has implemented procedures pursuant to policies that are
presently in effect today.
Most affected will be the manner of
inspecting arriving aliens at our ports of entry. Each non- U.S.
citizen entering the United States is an "arriving alien" and is subject
to inspection. Lawful permanent residents of the U.S., after the
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996,
are now "arriving aliens" as well, and subject to the enhanced entry and
exit control systems in place after IIRIRA was passed.
I do not believe
we will see a closing of our borders. It will take extreme circumstances
to do that. And I will venture to say that we have not quite gotten
there yet. But I do believe that we will most definitely see a
tightening of our borders, i.e., more diligent efforts on the part of
officers at our ports of entry to ascertain the stated and actual
intentions of, and probe into the validity of the documents presented
by, each person seeking entry.
Arrivals to and departures from the U.S. are recorded in a computer
database, and airlines cooperate with the U.S. INS on these matters. And
yet, individual "histories" are not checked on the computer each and
every time an entry is made. Make no mistake: Just because you failed to
turn over your I-94 at the time of your departure, it does not mean
that your exit was not recorded. I have met some people who stay here
longer than 6 months (for years, even), leave the U.S. and then have
someone in their final destination stamp an arrival date not consistent
with the actual arrival date.
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If being allowed re-entry using these fraudulent means has made
entry possible in the past, I would think twice about employing
these tactics now. Gone are the days when the INS officer will
simply look at your visa (to check if it is valid on its face) and
ask a few questions (if at all) before allowing entry.
We should anticipate that INS officers will check computer records
available for everyone seeking entry. We should anticipate that INS
officers will ask more probative questions -- perhaps the kind of
questions asked of those whose intentions are doubted and who are then
subjected to "secondary inspection": |
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Where are you going? Who are you
staying with? If staying at a hotel, do you have a reservation? What is
your confirmation number? If staying with friends or family, what is
their address? What is their telephone #? Do they know you are arriving
on this flight? Are they outside to pick you up? How will you get there
if they are not picking you up? How long will you be staying? What is
the exact purpose of your trip? How many times have you entered the U.S.
on this visa? How long did you stay each time? How long ago did you last
enter? And you want to return now? Why?
These are only examples, by the
way, of the kinds of questions asked in the course of hours of
interrogation which take place during such inspections. We should
anticipate that the inspecting officer may demand that you provide
them with corroborating documents as evidence.
To our "frequent
tourists", now is not the time to try your luck. So many of us come in
to the U.S. for 5 months, leave and return to our native country for 1
month (or 2) and then return again for another 5 to 6 month period.
While this may have worked in the past, one would be ill-advised to try
doing so at this time. After all, such extended stays in the U.S., while
not in and of themselves violative of the usual 6-month stay given,
become understandably suspect when done in succession and with very
little lapses of time abroad.
To our H-1B workers who are no longer
working in the U.S. but who still have an H-1B visa that is valid on its
face, do not try your luck at entering the U.S. at this time. I would
imagine that visas will be looked at more closely and questions will be
asked about the Petitioner in the H-1B visa. How long have you
been working there? What do you do? What is their telephone #? Who is
their contact person?
Of course, one with a valid H-1B visa with a
Petitioner name on the visa need not be working for that same Petitioner
in order to enter the U.S. But that person will need to e working
for another H-1B employer, and should be travelling into the U.S. with
an original approval notice for that subsequent H-1B employer (to
supplement the valid visa obtained through prior employment).
If you
have done this in the past -- enter on an H-1B even though you stopped
working for that H-1B employer or for that matter, any H-1B
employer -- do not try to do so now. (I am not tacitly condoning these
actions, mind you! These examples are given as a way to demonstrate how
relatively easy it had been for some people to enter in the past, and
how much more "serious" the government's efforts will be, now and in the
future, to ensure that entry is granted only to those with valid
intentions matched with valid documents).
Luggage will be checked, not
just electronically, but by hand. Northwest Airlines, the U.S.
airline which has arguably cornered the SE Asian market (certainly the
Philippine market), is already implementing a policy of checking by hand
each checked-in luggage for all its domestic and international flights.
I would assume they are doing the same with hand-carried items as well.
I would not be surprised if INS and Customs would begin stepping up such
manual checks at this time. Some of you may not have had occasion to
witness this, much less experience it, but if an INS officer is not
satisfied that you are being truthful in answering their questions about
your stated purpose for entering the U.S., you may be subjected to
"secondary inspection" and have your bags checked by hand (in addition
to being thoroughly interrogated).
How would you explain having your
diplomas and transcripts and letters of experience in your luggage, when
you were supposedly coming in to visit Disneyworld?
Those with prior
arrests who have not disclosed these "run-ins" with the law at the time
of application and issuance of a visa, may have some explaining to do
when a criminal background check is run on you and this indiscretion,
however minor, is discovered at the time of inspection.
Again, the above
are clearly examples of cases where someone with less than "honorable"
(for lack of a better word) intentions would experience problems at the
port of entry when they would otherwise not prior to September 11, 2001.
We will thus see, I imagine, more vigorous efforts on the part of people
in government in the performance of their jobs, particularly when
determining who can be allowed into the country. We will see a more
concerted effort on their parts to check all records and use all means
technologically and logistically possible to correctly ascertain the
real purpose of your trip (as opposed to your stated intentions), your
actual (not just your intended) purpose for coming, and the validity of
the papers -- facially and otherwise -- by which you seek to
procure your entry.
If you state the truth
and have not lied, these changes should not alarm you, and should
not give you reason for anxiety other than the fact that you will
experience a more fact-finding line of questioning.
While they may
result in delays, given the security issues we must grapple with, we
should be thankful for the efforts made to secure our borders and keep
them safe from the same types of characters who entered the U.S. on
B-1/2 visas, only to be found out later to have participated in the
hijackings which killed and terrorized so many innocent lives of late;
and who terrorize us now, even after their deaths. How many of them
remain in our midst now? Unfortunately, many will be weeded out --
perhaps wrongfully, or perhaps unnecessarily -- in the face of these more
stringent inspections. And if this "war" that we evidently are in right
now escalates and with it the violence and bloodshed, perhaps we should
not be surprised if our U.S. embassies abroad close down temporarily,
even indefinitely; or if interviews are suspended for a time period.
I
do not claim to have the answers. Neither does the government have all
the right answers for now. Not one among us anticipated what happened on
September 11, 2001; and none of us can even begin to imagine the extent
of what lies ahead. Some would say that America lost its innocence (or
what was left of its innocence) on September 11, 2001.
Judging from the
shock experienced by the rest of the world, the sadness which has
pervaded our planet since that day, the overall feeling of insecurity
and lack of control over our individual and collective futures -- all of
us -- citizens of the world -- lost our innocence on that day.
May God
bless us all.
VANESSA S. BARCELONA is a partner with the law offices
of Barcelona & Pilarski, P.A. She obtained her law degree from the
University of Florida. She is a member of the American Immigration
Lawyers Association, the American Bar Association, and the Florida
Bar. Please send all e-mails to: vsbarcelona@earthlink.net
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