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Possible Immigration Consequences of the Events of Sept 11, 2001

By Vanessa S. Barcelona
  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.

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.
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":

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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