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Law and U.S. Immigration and 9/11 – one year later

Shortly after the terrorist attacks a year ago, I wrote in this column that there were no significant changes in the basic U.S. immigration laws, and none proposed. Changes, if any, were confined to s...

Shortly after the terrorist attacks a year ago, I wrote in this column that there were no significant changes in the basic U.S. immigration laws, and none proposed. Changes, if any, were confined to stricter enforcement of existing laws, particularly those relating to border security.

Although some expressed the extreme view to close our borders and severely limit immigration entries, the general view was that it is the system and procedures, not the government policies on immigration, that are the problem. There was no great cry to reduce immigration levels, and no legislation proposed that would restrict routine international transportation activities or related topics such as availability of waivers for drivers. A year later, I can safely say the same thing is true.

Perhaps the biggest change in U.S. immigration policy is the new requirement for Canadian landed immigrants with UK Commonwealth citizenship, to hold a valid entry visa before crossing into the States. In the past, such landed immigrants were exempt from the visa requirement, and could cross the border under the same rules as Canadian citizens. UK Commonwealth nationals were therefore treated differently than Canadian landed immigrants from other countries. The new rules erased this distinction, and all Canadian landed immigrants now need a Consular-issued visa to enter the U.S. The visa-exempt status of Canadian citizens has not changed.

Currently, processing delays present the biggest problem in dealing with the INS. There has always been a goal to improve efficiency while at the same time doing it without errors and without compromising national security.

The interplay between “doing it fast” and “doing it right” should be a balancing act based on giving both priorities similar weight. However, after 9/11, “doing it right” became a much higher priority, and “doing it fast” seems to have vanished. Processing delays are not new; they have been a feature of U.S. Immigration for years. At a national conference in Seattle three years ago, the INS General Counsel remarked there are very few issues and problems he is dealing with that do not have something to do with processing delays.

More recently, my office contacted a U.S. Senator to achieve assistance in a matter that had been mishandled by the INS. The Senator’s office deals with his constituents on a wide range of business and personal matters, including taxes, government benefits and all types of government regulations. The Senator’s aide told me, currently the INS accounts for seven or eight out of every 10 complaints and problems he receives.

The INS processing delays were highlighted in an unfortunate way in March of this year, coincidentally on the six-month anniversary of 9/11, when the INS sent some confirming documents to the flight school in Florida relating to the student visas of two of the terrorists who had attended the school.

The fact this routine follow-up document took more than six months to get to the school is shameful, but that was not the main issue. The main issue, of course, was that the INS failed to notice the names and remove them from the system prior to their mailing.

Some high-ranking INS officials lost their jobs, and it looks like their successors don’t want to risk similar mistakes.

Since that date, INS processing times, already taking too long, have doubled or tripled, as priorities and personnel are re-allocated to avoid further embarrassing breaches of security.

At the U.S. Consulates in Canada and overseas, it is not processing delays that are problems, but outright refusals of visas. I have not seen the statistics yet, but I will not be surprised to see an extraordinary increase in the percentage of visa applications denied at U.S. Consulates. The 9/11 attacks highlighted to the public the fact that visitors or students to the U.S. can easily disappear into the system, with little accountability or tracking by INS.

In many countries, a man between the ages of 20 and 45 has little chance to achieve a visitor visa to the U.S., particularly if he is single without a substantial work history. If the Consular officer is not absolutely convinced that the person intends to return to the home country, the visitor visa will be denied.

We have also seen evidence of this to a lesser extent at the U.S. Consulates in Canada, and the new rule requiring landed immigrants from UK Commonwealth countries to receive visas, will undoubtedly result in the loss of privileges to enter the U.S. Some of these individuals will be truck drivers seeking or continuing employment in Canada, who will be refused business visitor visas at the Consulate unless they can show substantial ties to Canada, such as some combination of property ownership, family relationships, long-term employment, and the like.

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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