U.S. Department of Homeland Security Takes Shape
On June 18 2002, President Bush proposed the creation of the Department of HomelandSecurity (DHS) to Congress. In that address1, Bush stated that the mission of the newdepartment would be to accomplish the following three goals:
1. To prevent terrorist attacks within the United States;
2. To reduce America’s vulnerability to terrorism; and
3. To minimize the damage and recover from attacks that may occur.
The new department will perform several functions previously carried out bysubdivisions of other government departments such as the Department of Justice, theDepartment of Agriculture, and the Department of Defense. The DHS will be dividedinto the following subdivisions: Information Analysis & Infrastructure Protection;Science and Technology; Border Security & Transportation; Bureau of Citizenship andImmigration Services (BCIS); and Emergency Preparedness & Response.
The Immigration and Naturalization Service, currently housed in the Department ofJustice, will cease to exist on March 3, 2003. Its adjudication functions will be subsumedby the DHS’s Bureau of Citizenship and Immigration Services, and its enforcementfunctions will be subsumed by both the Bureau of Immigration Customs andEnforcement and the Bureau of Border Customs Enforcement. Exactly how thistransition will take place remains a mystery. Both the INS and the new DHS haveremained silent about the immediate practical implications of the transition. Forexample, to what agency should we make out checks when we submit immigrationpetitions on March 3rd? And when we address the envelopes for submission to INS orBCIS on March 3rd, what office title do we use? Such questions remain unanswered.
One question has been answered. Rumors have been circulating for some time that INSfield offices will be closing on March 3rd. This rumor has been quelled by a messagefrom the INS Community Affairs Office, which states that all current INS offices willremain at the same location after they are transferred to the Homeland Security
1 Bush’s message to congress is downloadable from www.whitehouse.gov/news/releases/2002/06.
2 More information about the Department of Homeland Security can be found on its newly operationalwebsite, at www.dhs.gov. Department. In addition, all of the forms and documents issued by the former INS arestill valid and there is no need to replace them at this time.
Beyond the immediate questions raised by the transfer of our nation’s immigrationfunction from the Department of Justice to the Department of Homeland Security loomlarger questions. What does it mean that the immigration function of the United Stateswill now be housed in a department whose mission is to desist terrorism? If the role andfunction of the DHS are fleshed out in a time of war and in an environment of fear, howwill that shape our attitudes toward immigration? To these questions there are noimmediate answers.
How Much is INS Charging These Days?
How much is INS charging for Filing Fees these days? Well, you’ll have to check theirwebsite, because the prices could change at any moment. The INS has typically includeda surcharge in each filing fee that goes toward paying for asylum and refugee applicants,for whom there are no filing fees. Recent legislation omitted the language providing forthe collection of these fees, however, and the INS was forced to lower its filing fees. Butthat could change. Legislation is currently pending that would re-introduce the oldsurcharge. It could happen any day. Meanwhile INS continues to accept the older,higher fee if you submit it.
U.S. Consulates in Certain Countries Subject to Delay
Due to increased security threats in the Middle East, the Department of State announcedon February 7, 2003 that they had authorized the voluntary departure of all dependentsand non-emergency personnel from the U.S. Embassy in Tel Aviv, Israel and the U.S.Consulate in Jerusalem, on a voluntary basis. The same decision was made for theEmbassies in Jordan, Syria, and Lebanon.
Our office recently sent an e-mail inquiry to the Embassy in Tel Aviv regarding theimpact of the security situation on visa issuance for one of our clients. The consul whoresponded wrote that they can no longer guarantee that any visas, including ImmigrantVisas for which appointments have already been scheduled, will be processed in a timelymanner. The consul further advised that if anyone travels to Tel Aviv in order to applyfor a visa, he or she should make plans in the event that he or she is detained in Israeluntil the political situation changes. This advice seems applicable to people traveling toany U.S. Embassy or Consulate in the Middle East.
U.S. Embassies in Canada Issue Guidance on New Visa Requirement for Landed Immigrants
Canadian landed immigrants who are nationals of Commonwealth Countries were oncevisa and passport exempt for travel to the United States. However, all landed immigrantsof Canada, including those from Commonwealth Countries, are now required to obtainpassports and visas before traveling to the United States3. U.S. Embassies andConsulates in Canada have issued guidance on how to obtain the newly required visasand passports.
Depending on which province and district the landed immigrant lives in, the proceduresvary. For example, Commonwealth landed immigrants in Halifax, Quebec City andCalgary districts may apply at those embassies on a walk-in basis and should consultwww.usembassycanada.gov for the public hours. However, Commonwealth landedimmigrants applying in Ottawa, Montreal, Toronto, and Vancouver should bookappointments for a visa interview through www.nvars.com. Applicants without internetaccess can contact 1-888-840-0032. Applicants who apply at the American Consulate inToronto must first deposit $100 USD as an application fee at a branch of the Bank ofNova Scotia in Ontario. A pre-coded 4-part deposit slip can be downloaded on line atwww.amcits.com, or by calling 1-900-451-2778.
For more information about visa application procedures, visit the U.S. Embassy online at:www.usembassy.Canada.gov.
Issues of Intent: How Does the INS Determine What’s In Your Head?
Employment-based nonimmigrant visa holders can obtain permanent residence (PR)either by Consular Processing or by Adjustment of Status. If Consular Processing ischosen, the alien must present a letter of employment at the time of the Consulateinterview abroad, stating that upon receiving of PR status, he or she intends to workindefinitely for the petitioning employer on the underlying I-140 petition. Unfortunatelyintent is a difficult thing to document or to prove.
In 1976, a landmark court case called Seihoon v. Levy clearly set the boundaries of theINS in determining the intent of individuals. Because the INS won the case, INS officerscite it constantly to demonstrate how intent can be determined. If the INS had lost thecase, INS officers would say that the decision was limited to the person who brought thecase. In any case, Seihoon v. Levy was brought before a U.S. District Court on appeal byan alien who contended that the INS had improperly denied his application for a change3 Note that this requirement does NOT apply to Canadian citizens. 3of status from Visitor status to Student status. The INS had originally denied his petitionbecause while he entered the U.S. as a visitor, he immediately enrolled in a U.S.university and sought to change his status to student status. INS decided that because thealien had decided so rapidly to change from Visitor to Student status, he hadmisrepresented his intention to enter the U.S. as a visitor only. INS determined that histrue intent, when entering as a “visitor,” was to enroll in a U.S. school.
The District Court decided that the INS had acted correctly when it denied the alien’sapplication for change of status to Student status. The Court’s reasoning was that the“rapid course of events” following the alien’s entry to the U.S. on Visitor status wasevidence of his intent upon entry. While the Court recognized that it is impossible for theINS to read people’s minds in order to determine their intentions, it is certainly possiblefor the INS to observe the behavior that people exhibit after they express an intention.They can then compare people’s behavior to their expressed intentions, to see if itcorresponds. If the “rapid course of events” following a person’s statement of intentseems to indicate that the person intended something other than what he or she expressedto the INS, then the consequences can be serious.
In the case of Seihoon v. Levy, the alien’s change of status was denied and he was notable to enroll in university classes in the U.S. at that time. In other cases, theconsequences may be more severe. The aforementioned scenario involving the ConsularProcessing applicant’s stated intention to continue working for his or her petitioningemployer after receiving a green card is a perfect example. If a permanent residentapplicant applies for a green card at a U.S. Consulate abroad, he or she is required to stateat the time of the interview that he/she intends to continue working for the petitioningU.S. employer indefinitely. The INS requires this statement based on the underlyingassumption that the alien is entering the U.S. primarily to work in an occupation forwhich there is a shortage of U.S. workers.
If the INS believes that a permanent resident received a green card following a ConsularProcessing interview at which he or she misrepresented his/her intention to continueworking for the petitioning employer, then he or she may not be able to become anaturalized citizen based on that green card. In addition, the INS routinely deportsindividuals who make such misrepresentations. There are two ways in which the alien’sintent at the time of the Consulate interview may come into question. The first would beif someone reported the alien’s misrepresentation to the INS. The tip-off could comefrom an aggrieved employer who supported the alien’s immigration process inanticipation of a continued employment; or it could come from a fellow employee who isaware of the situation. It could also come from an angry ex-boyfriend or girlfriend.Anyone can call the INS to report that someone has broken immigration laws. Uponreceiving a tip-off, the INS would have to launch an investigation. The other way inwhich the alien’s misrepresentation might be discovered would be at the time of his orher Naturalization interview. The INS officer conducting the interview would query thealien on his or her actions following receipt of the green card. If at that time it came outthat the alien changed employers of his/her own accord immediately following receipt ofthe green card, he or she could be deemed ineligible for naturalization.
In order to determine whether the alien truthfully represented his or her intent to remainwith his or her petitioning U.S. employer after receiving the green card, the INS uses thestandard created by Seihoon v. Levy. That is, the INS examines the “rapid course ofevents” following the alien’s receipt of his or her green card. INS has reduced this rule toa 30-60-90 day formula. If an alien ends employment with the petitioning employerwithin 30 days of receiving his/her green card, then it is highly likely that INS will decidethat the alien’s intent at the Consulate interview was not, as he/she stated, to remain withthe petitioning employer indefinitely. After 60 days have passed, it is less likely (but stillrisky) that INS will determine that the alien lied about his/her intent at the Consulateinterview. And after 90 days, it is highly unlikely that INS will have a problem with thealien’s change of employment.
Any alien who applies for permanent residence (the “green card”) using ConsularProcessing is required by the INS to intend to work for the petitioner on the underlying I-140 petition indefinitely. When the alien applies for Naturalization, or if the petitioningemployer raises an issue, then the INS will examine the veracity of the alien’s declarationof intent by examining his or her actions (or the “rapid sequence of events”) followingthat declaration. If the INS makes a decision that is not in your favor, you may loseimmigration benefits because of your misrepresentation at the time of the Consulate interview.
Special Registration Deadlines Extended for Certain Groups
On Friday, February 19, 2003, the Department of Justice will be placing a notice in theFederal Register stating that the Special Registration deadlines will be extended forcertain groups of nonimmigrants, as follows:
Saudi Arabia and Pakistan
Males who are citizens or nationals of Saudi Arabia or Pakistan, who were born on orbefore 01/13/1987, and who last entered the U.S. as a nonimmigrant on or before09/30/2002 and would stay in the U.S. until at least 02/21/2003, were required to registerbetween 01/13/2003 and 02/21/2003.Under the new rule, their registration deadline willbe extended for an additional four weeks. They may continue to register until March 21,2003.
Bangladesh, Egypt, Indinesia, Jordan, and Kuwait
Males who are citizens or nationals of Bangladesh, Egypt, Jordan, or Kuwait, who areover the age of 16, and who were last admitted as nonimmigrants on or before09/30/2002, and will remain in the United States after 03/28/2003 were required toregister between 02/24/2003 and 03/28/2003. Under the new rule, their registrationdeadline will be extended for an additional four weeks. They may continue to registeruntil April 25, 2003.
Out-of-Status Pakistani Men Targeted at Ports of Entry
A member of the American Immigration Lawyers Association reported last week that theLacolle/Champlain Port of Entry has enlisted the assistance of the State Police in settingup a road block. They are stopping all north-bound vehicles and are detaining all malePakistanis, and in particular those who are out of status. We have heard reports asrecently as this morning that all 3 ports of entry in Buffalo, NY are also detaining allPakistani men who are out of status. We assume that this policy is being applied at otherports of entry as well.
The information contained in this newsletter is for informational purposes only. It does not constitute legal advice.
