Overview : 9/11 and the Impact on U.S. Immigration
Article by Attorney Sheela Murthy for the SiliconIndia Magazine.

The United States has always been the envy of other countries with respect to personal freedom. But some aspects of this freedom may be compromised by the impact of the September 11 terrorist attacks. Here is a brief overview of the short and long term impact on U.S. immigration policies.

From an immigration perspective, a weak economy is a double-edged sword. On the one hand, the U.S. Department of Labor takes the position that, when unemployment increases, foreign nationals are not needed, because there should be qualified and available U.S. workers. On the other hand, in a weak economy the United States needs to rely even more on foreign markets for exports and for specialized and skilled foreign technical personnel to increase the productivity of U.S. businesses. After Sept. 11, a third factor has come into play. Since the attacks appear to have been the work of foreign terrorists, there is now a sudden fear of foreigners, particularly those who appear to be from Arab countries.

In this article, we outline the areas directly impacted by the events of September 11^th:

Travel Requirements for Domestic Travel

Travel advisories were issued for foreign nationals in mid-September 2001, based on the latest reports from various clients about their family members who had been questioned even when boarding domestic flights. Some of these people felt harassed merely because they believed they “looked different.”

The Immigration and Nationality Act provides that any non-U.S. citizen over the age of 18 is required to carry certain registration documentation. For nonimmigrants, this means an I-94 form, or in the case of an H-1B employee, the H-1B approval notice or I-797 form with the I-94 card attached to it. Failure to comply with the law results in a federal misdemeanor offense and the person can be fined $100 or be imprisoned for up to 30 days, or both.

Until September 11^th, this provision of the law was really never utilized but now it is routinely requested even for domestic travel. Accordingly, it is wise for any non-U.S. citizen in the country to be prepared and to keep all appropriate immigration paperwork under these circumstances.

Travel Abroad

Similar to domestic travel, most immigration law attorneys are advising their clients to be careful when traveling outside the U.S. On the one hand, the government advises us to help the U.S. economy by traveling and purchasing goods and services but on the other, there is fear of being able to return safely back to the U.S.  In addition to carrying the documents for domestic travel listed above, which includes the passport and the INS approval notice, a person should have the visa stamped in the passport, preferably matching the employer with whom they are working, and a recent letter from the U.S. employer confirming the availability of the job offer. Of course, a visa stamp from a prior employer, as long as it is in the correct category and has not expired, is also valid for use with the new employer's approval notice; again, a recent employer letter is helpful as well.

Foreign nationals, even long time permanent residents are subject to much greater levels of investigation at ports of entry, whether it be land borders or at the airports. Carrying the documents listed above is a good starting place.  It is helpful to be honest and direct with authorities, if questioned, if a person has nothing to hide. If a person feels harassed, the person may opt to withdraw their entry into the U.S. and decide to return back on the next flight, so as not to be subject to removal or deportation. In addition, U.S. Customs officials have broad rights to search baggage and personal belongings for security reasons. It is useful to remember that the U.S. Department of State (DOS) provides updates on the security conditions at various countries for the benefit of U.S. citizens.

Visa Processing at U.S. Consulates Worldwide

Although no official statistics have been released, it appears that the number of visa applications at U.S. embassies and consulates around the world has dropped significantly. The Visa Office of DOS and various consulates have confirmed that there is no policy change in issuance of visas, both immigrant and nonimmigrant visas. Laws and policies in effect prior to September 11^th continue with respect to eligibility of visa applicants. Most consulates are open for regular business, other than some procedural changes at some higher security consulates, like the consulate in Paris only accepting mail in visa applications for nonimmigrant visas after September 11^th. All the consulates in India had always, even before September 11^th, preferred mail in procedures for nonimmigrant visa applicants, except in emergencies. After September 11^th, DOS has informed consulates that they may obtain security clearance reports on certain individuals, if they need to do so. 

Even though some law firms are apparently advising their clients to avoid consular processing abroad after September 11th for the immigrant visa (IV), at the Law Office of Sheela Murthy, we have found that majority of the clients are successfully and with few problems obtaining their IVs at all the three IV posts in India, New Delhi, Mumbai and Chennai.  (Calcutta only processes nonimmigrant visas).

Visa Processing at Border Posts in Canada and Mexico

Those wishing to obtain a multiple entry visa stamp in their passports at one of the U.S. border posts like Mexico or Canada will now need to comply with additional security restrictions after September 11^th. To secure its border, Mexico has imposed additional visa restrictions on nationals of fifty-five countries, including India, Pakistan, and China. This restriction applies not merely to nonimmigrants, but also to permanent residents. This additional security measure will involve a prior check conducted by the Mexican Immigration Authority in Mexico City, which could take a month on average. Generally, a person is required to obtain a visa to enter Mexico in order to visit the U.S. consulates based in Mexico, though under certain circumstances, it may be possible to obtain a one-day "permiso" even for nationals of these 55 countries. This one-day pass would have restrictions, such as limiting the person to visiting the U.S. consulate and surrounding area and not traveling elsewhere within Mexico. 

Since October 1, 2001, there is a new Border Crossing Card (BCC) with security features for Mexicans wishing to enter the U.S. Similar BCCs will be introduced for Canadian permanent residents and visas may be required for those entering Canada. Keeping in mind these new restrictions, it is advisable to check visa requirements for the appropriate consulate before making an appointment with a visa post in Canada or Mexico.

Delays at Various INS Offices and Service Centers

It is difficult to imagine that there could be additional delays at various INS District offices around the U.S. and with the INS Service Centers. The anthrax scare with a piece of mail received at the Vermont Service Center on Saturday, October 13, 2001, could result in several additional days of delay in processing cases since VSC was closed for a few days. The other INS Service Centers were closed for about a day and half reopened in the afternoon on Tuesday, October 16, 2001.

Govt. Agencies Sympathetic to Victims of Attacks and their Families

There is a spirit of cooperation among various governmental agencies with respect to helping those adversely affected by the Sept. 11^th attacks. Soon after the attacks, the INS Commissioner announced that victims and their families should not be afraid to provide information about their missing relatives to local authorities for fear of INS investigations. The DOS has recommended to its consulates worldwide to be sensitive and to expedite visa processing for the family members of victims. The DOS has made available information on financial and other assistance to families of victims.

INS, DOL, and local Department of Labor offices have all stated that they will liberally exercise discretion to accept filings that miss deadlines as the result of delays in mail deliveries created by the attacks. Even as late as October 12, 2001, the INS Commissioner pointed out that the INS will not commence deportations or removals against family members of the Sept. 11^th attacks, if the principal nonimmigrant worker was killed in the Sept. 11^th attacks and the INS will grant additional time and possibly issue employment authorizations for such family members.

Legislative Update and Our Future

There have been rumors afloat about a possible moratorium on the issuance of F1 student visas to the U.S. after September 11^th. Senator Dianne Feinstein, Democrat from California, had planned to introduce such a bill for a moratorium on F1 visas for 6 months. The purpose of the moratorium is to enable the INS and schools to update the status of the 800,000 plus international students in the U.S. There is no tracking mechanism in place if a student does not attend the designated school, drops out or just goes underground. It is unlikely that any such Bill would pass both Houses, even in this climate. Besides the F-1 student visa, it is likely that the M-1 for vocational students could have some new restrictions. Some of the alleged terrorists were apparently on the M-1 visa.

The extension of the old Section 245(i) that allowed those without status to obtain file for permanent residency in the U.S. is not likely to get passed in Congress any time in the near future.

In the immediate aftermath of September 11, an antiterrorism proposal has been put forward. The proposal would require that if the INS or the U.S. Attorney General has any reason to believe that any person may further acts of terrorism, they should “certify” such a person. Unfortunately, many of the terms are only loosely defined. This proposal does not afford the opportunity for any review by a court of law, and requires mandatory detention and removal of any “certified” foreign national — including lawful permanent residents of the U.S. that have been living permanently and peacefully in the country for ten, twenty or fifty years!

The proposal would apply retroactively, irrespective of when the particular act occurred, and it would apply to all past, pending or future removal, exclusion, deportation or any other immigration proceedings. Even in this climate, it is unlikely that the proposal could become law in its present form, because even conservative figures believe that if such a law were to pass it would be tantamount to abrogating the constitutional freedoms.

Although President Bush has openly expressed the need to respect and understand people of different countries and of different faiths, rumors abound that there are informal e-mails and messages being passed by word of mouth to law enforcement and senior administration officials, to target people of certain nationalities or races. Immigration to the United States and the attitude towards immigrants will be some of the areas that will have to be revisited in this new world order.

As has often been noted, immigration laws and policies in the U.S. seem to follow the ebb and flow of the tides with liberal attitudes and restrictionist attitudes, varying at various times in our history. After September 11^th, we should expect more restrictions on U.S. immigration. The overall softening of the U.S. economy is not helping either.