New Restrictions
"Special Registration"

Cigdem A. ACAR, Esq.
Prepared by

The immigration field has changed in many ways since the terrorist attacks of September 11, 2001.  For example, quick action is no longer possible for some applicants and visa issuance in Canada or Mexico is out of the question for nationals of significant groups of countries.  Those not belonging to the listed countries, if denied visa issuance in Mexico or Canada will be unable to return to the U.S. on their old visa status and will have to depart to their home countries directly from Canada or Mexico for visa issuance.

Backlogs have significantly increased and are now going through mandatory security checks.

Naturalization applications are skyrocketing as the legal risks to green card holders grow, but adjudication of those applications have slowed in some cases for security reasons.

Finally, the U.S. is debating whether aliens, permanent residents, and even U.S. citizens can be arrested and deprived of liberty on U.S. soil without charges being filed, and whether any court has jurisdiction to determine whether such incommunicado, indefinite detention without access to an attorney are constitutional.

Cigdem A. Acar, Esq. (left), informed Turkish Cummunity about legal changes on the Immigration Laws since September 11, 2001 at the Turkish House in New York City on November 26, 2002. Event sponsored by Turkish American Federation and organized by Bircan Unver (right) Photo: Canalp Caner

There is a backlog of 10,000 visas at US consulates throughout the world. These delays are mostly caused by extensive background and security checks conducted in coordination with U.S. government agencies.  Many foreign students, business people and other travelers visa applications have been subject to the security procedure known as “visas condor”. In the future, these security reviews are expected to take less than a month from the time of visa application.


New Restrictions on the way for entering in the U.S.
Started October 1, 2002

(INS Publishes Final Rule on Special Registration, Monitoring in Light of Ongoing Terrorism Concerns)

The INS Published a final rule on August 12, 2002 relating to the special registration and monitoring of certain nonimmigrants in response to ongoing terrorism-related concerns following the September 11, 2001, attacks on the U.S.  The final rule, effective on September 11, 2002 requires that certain foreigners provide specific information at regular intervals to ensure compliance with the U.S. immigration laws because of U.S. national security and law enforcement interests. The final rule modifies existing requirements to require certain nonimmigrants to report to the INS upon arrival, approximately 30 days after arrival, every 12 months after arrival, upon certain events (such as a change of address, employment, or schooling), and at the time of departure from the U.S. Those nonimmigrants will also be required to supply photographs and fingerprints.

One set of changes reflects the fact that the special registration system will be paperless. The Department of Justice noted that, until an electronic filing system is fully implemented, the agency will continue to require nonimmigrants aliens subject to special registration to make their special registrations.

The only paper process that is being continued is that of the change of address form (AR-11)

The final rule continues to provide that a foreign national must reregister at each 30-day interval and annually, but adds that if a nonimmigrant subject to special registration can show a “specific burden,” he or she may seek relief (exemption) from the appropriate INS district director.

One commenter stated that the proposed rule would effectively create a new ground of inadmissibility (exclusion from the U.S.)  as its characterizes failure to comply with the final registration provisions as “unlawful activity.” The commenter noted that the alien would be presumed thereafter to be inadmissible as an alien “who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in…any other unlawful activity.”

The Department recognizes, the final rule states, that there may be reasons why a departing foreign national may not be able personally to report for final registration when leaving the U.S., and the Department acknowledges that some failures to register upon leaving are likely not to be the result of a preconceived intent to engage in unlawful activity at some future time of the alien’s reentry intro the U.S.  If such a nonimmigrant violates the specific regulations relating to final registration, however, that alien will be presumed to be inadmissible.  The presumption maybe overcome, the final rule states, but  the INS has not provided a list or circumstances in which such a failure would be excused

The Final rule is effective September 11, 2002,  and expanded on October 1, 2002.

There will be four different methods by which a nonimmigrant alien will be identified for special registration.  The four method are: 1) citizens or nationals or countries designated through publication of a notice in the Federal Register, 2) notification through the Interagency Border Inspection System (IBIS), 3) pre-existing criteria, as defined by the Attorney General and 4) INS officer discretion at the ports of entry to the U.S.

Currently, citizens of Iraq, Iran, Sudan, Libya and Syria are subject to special registration requirements. Therefore, any nonimmigrant alien 14 and older, (with the exception of A and G visa holders), who is a citizen or national of Iran, Iraq, Sudan, Libya or Syria, will be registered pursuant to the new special registration procedures.

The list was also expanded recently to include citizens or nationals of Pakistan, Saudi Arabia, and Yemen who are males between 16 and 45 years of age who will also be registered under new INS directives.

Commencing October 1, 2002, inspecting officers are also required to specially register nonimmigrant aliens in accordance with the following guidance. 

The inspecting officer will receive “special registration” lookouts via the IBIS database pursuant to State Department Instructions during their primary inspection. The lookout will direct the officer to register the nonimmigrant alien or exempt the nonimmigrant alien from special registration.

Finally, any nonimmigrant alien, regardless of nationality, must be specially registered when the INS inspecting officer has determined or has reason to believe that a nonimmigrant meets pre-existing criteria, as determined by the Attorney General, that would indicate that such alien’s presence in the United States warrants monitoring in the interest of national security. 

In determining whether to exercise his or her discretion to require a nonimmigrant alien to comply with the special registration requirements the INS officer may only consider the following criteria:

1)             The nonimmigrant alien has made unexplained trips to Iran, Iraq, Libya, Sudan, Syria, North Korea, Cuba, Saudi Arabia, Afghanistan, Yemen, Egypt, Somalia, Pakistan, Indonesia, or Malaysia, or the alien’s explanation of such trips lacks credibility.

2)             The nonimmigrant alien has engaged in other travel, not well explained by the alien’s job or other legitimate circumstances.

3)             The nonimmigrant alien has previously overstayed in the United States on a nonimmigrant visa, and monitoring is now appropriate in the interests of national security.

4)             The nonimmigrant alien meets characterization established by current intelligence updates and advisories.

5)             The nonimmigrant alien is identified by local, state or federal law enforcement as requiring monitoring in the interest of national security.

6)             The nonimmigrant alien’s behavior, demeanor, or answers indicate that alien should be monitored in the interest of national security.

7)             The nonimmigrant alien provides information that causes the immigration officer to reasonably determine that the individual requires monitoring in the interest of national security.

The INS officer’s decision to register any nonimmigrant will be reviewed by a supervisory immigration officer.

For more information about “Special Registering” see:

INS Website Containing A New Section on Special Registration.

The INS has updated its website with detailed information on how and where to comply with the new Special Registration requirements, which a 9/6/02 Federal Register notice made applicable to nationals of 5 countries. Click on the link below to view the information.

http://www.ins.usdoj.gov/graphics/lawenfor/specialreg/index.htm

The above list indicating the various types of circumstances under which an INS officer at a U.S. port of entry will make a special registration decision for any applicant, should give everyone pause and cause for reflection. 

It could very well be that an INS officer, not satisfied by a visitor’s – student’s – H-1B worker’s – or other nonimmigrant’s explanations, overall attitude and appearance during the brief interview, to require registration and its attendant headaches. 

It is highly recommended that all nonimmigrants remain courteous, polite and calm during the admission process, limit their answers to the questions asked.  Lack of English fluency could also be a potential problem during this process. Having in one’s possession relevant back up documentation regarding the potential areas of questioning is also highly recommended.

E-mail: cigdem@cigdem-acar.com
Web site: http://www.cigdem-acar.com

Disclaimer:

This article is drafted for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship between the author and the reader while The Acar Law Firm hopes that the information presented in this article is useful and informative, readers are strongly encouraged to seek independent counsel for advice regarding their individual legal issues. We assume no liability or responsibility for any errors or omissions in the content of this article.

© November 2002, The Acar Law Firm, PLLC