More Observations on the Effects of September 11
February 22, 2002

It is widely believed among the general public that since September 11 things must be tougher, all around, when it comes to obtaining any immigration benefit or just dealing with the U.S. Immigration & Naturalization Service. Some believe that the immigration laws have gotten much stricter, while others assume that the application and enforcement of immigration laws have tightened considerably. Both suppositions are true in some respects, however for most individuals seeking immigration benefits, whether in the U.S. or abroad, not much has changed.

For individuals in the U.S. seeking to institute a procedure to confer immigration benefits for a family member such as a spouse, child, parent or sibling, the laws and procedures are no different from the way things were before September 11. No new restrictions have been placed on the types of family visas available or the annual allotment of family based immigrant visas. Additionally, procedures at U.S. consular posts abroad and INS offices in the U.S. have remained virtually the same, although more scrutinizing background check protocols have been implemented, particularly for applicants from predominantly Muslim countries.

On the other hand, U.S. companies seeking to facilitate issuance of work visas, whether immigrant or temporary, are finding that procedures at the four INS Service Centers in many cases have become considerably more obstacle- ridden. Clear cut cases will always be clear cut, but employment based filings for smaller companies or for workers with educational/experiential backgrounds not exactly matching the job offer at issue, are often responded to with lengthy requests for additional evidence.

As is the case with family based petitions, however, the laws governing the types and numbers of employment based immigrant and temporary visas available have remained unchanged – only the adjudication process seems to have tightened. By no means, however, has it become impossible to satisfy the INS – although more cases are coming under the microscope more often and the demands made on the parties have at times become unreasonable. (Of course, an appeal of a decision contrary to law and reason still remains an option)

On a slightly different topic, conversations with many of my clients have revealed that travel for the foreign national continues to be an adventure, even for those on domestic flights. Clients have shared with me a wide range of experiences, and it appears a number of interesting patterns have developed, including:

• individuals who are in the U.S. in violation of immigration regulations risk being questioned about their status and even placed in removal proceedings, as a result of stricter pre-flight boarding procedures on domestic flights,
• individuals entering the U.S. and undergoing inspection by an INS officer, whether as immigrants on their Alien Registration Cards, or as non-immigrants on temporary visas, are advised to have additional pieces of photo identification in their possession to verify that they are person they claim to be,
• non-U.S. citizens from predominantly Muslim countries face closer scrutiny all around, whether it be on domestic flights, international flights, at U.S. ports of entry or at U.S. consular posts abroad.

It also appears that availability of Social Security numbers and state issued drivers licenses has also been significantly restricted by governing authorities. As a result, non-U.S. citizens or non-Resident Aliens (U.S. immigrants) without a current work visa or Employment Authorization Document (“EAD”) are finding that state authorities are refusing to issue them drivers licenses, despite their holding some other type of valid non-immigrant status, such as F-1 student, B-2 visitor, or H-4 dependent (of H-1B visa holder). The reason: such visa holders are being denied Social Security numbers these days, and that is happening because the Social Security Administration is refusing to issue numbers to individuals without valid work visas or EAD’s.

In the past, as many are aware, the SSA issued such non-work visa holders Social Security cards with a “not valid for employment” restriction, but that practice has changed. Instead, individuals legally in the U.S. without a valid work visa or EAD, but require a number for some other purpose, such as banking or tax purposes, are being advised to obtain a tax payer identification number (completely different from a Social Security number) from the Internal Revenue Service.

As far as legislative measures to open up new immigration benefit opportunities for individuals in the U.S. in violation of our immigration laws (such as Section 245(i)), it appears that the emotional residue of September 11 will prevent the enactment of new legislation in the immediate future. Beyond the immediate future, however, the possibility always exists. And as usual, important developments in U.S. immigration law will continue to be featured here.