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December 2, 2002 Immigration News Update
Click for a Printable Version of this Article
1. Special Registration Summary and Update * What is special registration? Special registration is a process devised by the Department of Justice (DOJ) to enhance security by tracking certain nonimmigrants whom the DOJ and the Department of State believe may pose a security threat to the United States. Special registration already affects a number of nonimmigrants, as discussed below, and can be expanded further. It does not apply to permanent residents. * Who is subject to special registration? So far four categories of nonimmigrants are subject to special registration. Two categories apply to nonimmigrants entering the United States; the other two categories apply to nonimmigrants already in the country. Category 1: A nonimmigrant who is a national or citizen of Iran, Iraq, Syria, Sudan or Libya is subject to special registration. This applies to females and individuals of all ages. Additionally, anyone who a consular officer or an Immigration and Naturalization Service (INS) inspecting officer has reason to believe is a national or citizen of one of the five designated countries will be subject to special registration. This means individuals who have dual citizenship with one of the designated countries will likely be subject to special registration. Additionally, individuals who were born in any of the designated countries, although they are not citizens of those countries, will also likely be subject to special registration. Category 2: All immigrants meeting certain INS or Department of State "preexisting criteria" will be subject to special registration. According to a confidential INS memorandum dated September 5, 2002, all males who are nationals or citizens of Pakistan, Saudi Arabia, or Yemen, between 16 and 45 years of age, other than those entering in A or G nonimmigrant status, must undergo special registration. Category 3: A nonimmigrant male aged 16 or older (born on or before November 15, 1986), last admitted to the United States before September 10, 2002 who plans on remaining in the United States past December 16, 2002, and who is a national or citizen of Iran, Iraq, Syria, Sudan or Libya must personally appear before an immigration officer at a designated location to specially register. They must do so before December 16, 2002. Individuals entering in A or G status will not be subject. Category 4: Most recently, the Attorney General added thirteen countries to the designated countries list for special registration purposes. These countries are: Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen. Nationals and citizens of these thirteen countries who are male, 16 or older (born on or before December 2, 1986), who were last admitted to the United States on or before September 30, 2002, and who will remain in the United States at least until January 10, 2003 must specially register by personally appearing before an immigration officer at a designated location. They must do so before January 10, 2003. Individuals entering in A or G status are not subject. * Who else is at risk to be specially registered? Any nonimmigrant, regardless of nationality or citizenship, can be required to specially register when an INS inspecting officer has reason to believe that the nonimmigrant meets "preexisting criteria." Similarly, a nonimmigrant may be subject if an inspecting officer in his or her discretion has reason to believe that monitoring that individual would be in the national interest. According to a September 5, 2002 confidential INS memo, among the preexisting criteria an INS inspecting officer may consider is unexplained travel by any nonimmigrant to Iran, Iraq, Libya, Sudan, Syria, North Korea, Cuba, Saudi Arabia, Afghanistan, Yemen, Egypt, Somalia, Pakistan, Indonesia, or Malaysia. The nonimmigrant's behavior, demeanor or answers could also trigger special registration. Other country "lists" exist and may subject nationals or citizens of those countries to increased security checks. The so-called "List of 26" includes the five originally designated countries, plus the latest thirteen (minus North Korea), plus Bangladesh, Djibouti, Egypt, Indonesia, Jordan, Kuwait, Malaysia, Pakistan and Saudi Arabia. The "List of 7" state sponsors of terrorism listed in the Enhanced Border Security and Visa Entry Reform Act of 2002 includes the five originally designated countries plus Cuba and North Korea. Individuals from these countries should expect extended delays in visa issuances and increased scrutiny at the border. They may also be subject to special registration at the discretion of an INS inspecting officer. * What are the procedures for special registration? Individuals in Categories 1 and 2 who are deemed subject to special registration upon arrival in the United States will be placed in secondary inspection. The individual will be photographed, fingerprinted, and interviewed during secondary inspection. Subject individuals must also register in-person between 30 and 40 days after entering the United States at a designated INS office. Individuals in Categories 3 and 4 who were already in the United States when the special registration rules took effect for them are required to personally appear before an INS officer (by December 16, 2002 for those in Category 3 and by January 10, 2003 for those in Category 4). At that time, they will be fingerprinted, photographed, and interviewed under oath before an immigration officer. The nonimmigrant must also present travel documents and proof of residence abroad. Those in Categories 3 and 4 should look particularly at "Special Call-in Registration Procedures for Certain Nonimmigrant Aliens" posted on the INS website at: http://www.ins.usdoj.gov/graphics/lawenfor/specialreg/SpcCall_in.pdf. Individuals in all categories must re-register in person at an INS office every year. Those in Categories 1 and 2 must re-register within 10 days of the anniversary marking entry into the United States. Those in Categories 3 and 4 must re-register within 10 days of the anniversary marking the date they first registered at an INS office. All subject individuals must, within 10 days of changing addresses, submit Form AR-11SR to the INS at the London, Kentucky address on the bottom of the form. For instructions and a copy of the Form AR-11SR, go to: http://www.ins.usdoj.gov/graphics/formsfee/forms/ar-11sr.htm. Finally, subject individuals must depart at a designated port of departure. The list of ports and other information relating to special registration is on the INS website at: http://www.ins.usdoj.gov/graphics/lawenfor/specialreg/index.htm. * What happens if a nonimmigrant does not specially register? Failure to specially register is a violation of nonimmigrant status and condition of entry and makes a person deportable. Additionally, those whom the INS has identified as requiring special registration but who have not specially registered will be entered into a national crime database called the National Crime Information Center (NCIC). Local and state law enforcement officers routinely check the NCIC during traffic and other stops. Consequently, anyone entered on this database who is stopped by local law police may be subject to deportation proceedings. Two articles relating to special registration can be found on our web site
at: 2. Department of Homeland Security Created On November 25, 2002, President Bush signed into law the Homeland Security Act of 2002. The Act creates the new Homeland Security Department into which approximately 22 federal agencies or parts of agencies will be transferred. The INS will be split up into two bureaus within the new Department: the Bureau of Border Security (BBS) and the Bureau of Citizenship and Immigration Services (BCIS). The BBS will perform the immigration enforcement functions currently administered by the INS, including border patrol, detention and removal, inspections and investigations. It will also administer the tracking system for nonimmigrant students and exchange visitors, including the Student and Exchange Visitor Information System (SEVIS). The BBS is a bureau within the directorate of Border and Transportation Security, one of four directorates created within the Department. The Border and Transportation Security directorate will also assume the primary role in visa issuances. Currently, the Department of State administers visa issuance functions. Under the new law, the Border and Transportation Security directorate will issue, administer and enforce regulations regarding the grant or denial of visas and the functions of consular officers. The consular officers will remain Department of State employees, but will be subject to the rules established by the Border and Transportation Security directorate within the Department of Homeland Security. The BCIS will perform the immigration service functions of the INS. This consists primarily of adjudication functions, such as adjudication of visa petitions, naturalization petitions, asylum and refugee applications among others. The command structure of the BCIS differs from the BBS. While BBS is housed under the Border and Transportation Security directorate headed by an Undersecretary, the BCIS is not housed under the Border and Transportation Security directorate. Rather, the BCIS director will report directly to the Deputy Secretary of the Department. The potentially good news for immigration beneficiaries is that the Secretary of the new Department is required to eliminate backlog within one year of the Act's enactment. Reducing backlog and timely adjudication of benefits will be a priority for the BCIS. Additionally, the Act provides for the creation of an internet-based system permitting employers and foreign nationals to check the status of their filings online also within one year of enactment. The Act also mandates a feasibility study for online filing. This is the largest reorganization of the U.S. government in over 50 years. Expect delays and snafus as the new department figures out how to perform its immigration functions. Moreover, the statutory language requiring the INS to eliminate backlogs within one year is not enforceable. Given both the INS' current emphasis on security and the reorganization of immigration functions into the new department, expect adjudication backlogs to get worse, not better. 3. Form AR-11 Change of Address Update As we have been reporting (see article 2 of our July 29, 2002 newsletter at http://www.millermayer.com/new/news7_29_02.html), the INS has begun enforcing an existing law requiring foreign nationals to report a change of address to the INS within 10 days of the change. All noncitizens within the United States are subject to this requirement, including green card holders. Within 10 days of a change in address, a foreign national must submit a Form AR-11 to an INS office in London, Kentucky. The earlier version of the Form AR-11 required the forms to be sent to the INS headquarters in Washington, D.C. The revised forms available on the INS website should be used which contain the London, Kentucky address. The AR-11 may be found at: http://www.ins.usdoj.gov/graphics/formsfee/forms/ar-11.htm. There are no clear rules for what a foreign national ought to do if he or she has moved several times since entry. Immigration practitioners generally recommend that an AR-11 be filed reflecting the most recent change of address only. The AR-11 is not a substitute for communicating with the INS office where a
petition is pending. A foreign national whose address has changed should also
inform the INS service center adjudicating his or petition of a change of address
separately from filing the AR-11. Two new articles relating to special registration can be found at: Also, an updated memo on third-country national consular processing in Canada
and Mexico can be found at: For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com) For general information, visit our web site at http://www.millermayer.com/ The usual required legal disclaimers (we ARE attorneys, after all): Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. The information in this newsletter is for general purposes only, and is not intended as legal advice for any particular situation. If legal advice or other expert assistance is required, the services of a competent professional should be sought. To unsubscribe to this newsletter, email mailto:syl@millermayer.com. Copyright (c) 2002 True, Walsh & Miller, LLP. All rights reserved.
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