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Inadmissibility – Security Grounds

by Gregory Siskind

What agency is responsible for the protection of US borders from security threats?

Over the past five years, there have been a number of changes in this area, responding to changing world conditions. As of March 1, 2003, the Department of Homeland Security (DHS) took the role as enforcer of the Immigration and Nationality Act, including provisions on admissibility, for the purpose of protecting the US from terrorist attacks, coordinating responses to national emergencies, and securing the borders and transportation systems. Still, the Department of State (DOS) has a crucial role in determining who is admissible.

US immigration law makes a variety of security related concerns grounds for inadmissibility. If a Department of State consular officer or USCIS inspector either knows or has a reasonable basis for believing that the person is currently or will in the future engage in terrorist activities, if the person has incited terrorist activity, or if the person is a representative or member of a terrorist organization designated by the DOS or that the applicant for admission is seeking to enter the US to engage in espionage or sabotage, or to obtain for export goods or technology that have been identified as not for export, the applicant is to be denied admission. For those aliens deemed inadmissible as a member of an organization that endorses terrorism, an exception may be made if the alien can show through clear and convincing evidence a complete unawareness of the support of terrorism.

Membership in a communist or other totalitarian party makes a person inadmissible, but there are a number of exceptions to this rule. The primary exception eliminates membership that was involuntary, while under age 16, automatic by operation of law or necessary to obtain a job from the basis for inadmissibility. Another exception applies to people who have renounced their membership in the party at least two years prior to the visa application admissible if it is determined that they are not a threat to the US. If the person’s country is still controlled by a communist or totalitarian government, the renunciation must have occurred at least five years prior to the visa application. Finally, people who are close family members of US citizens and permanent residents are eligible for a waiver of this ground of inadmissibility. If the DOS determines in the course of consular processing that a person’s entry to the US would have adverse consequences on US foreign policy, the person is inadmissible. There are two exceptions to this rule. First, the ground of inadmissibility does not apply to officials of a foreign government simply because of statements they may have made. In these cases, the person is admissible only if their admission would create a “clear negative foreign policy impact”. Second, a person cannot be deemed inadmissible because of past statements that would be legal in the US unless their entry would compromise competing US foreign policy interests.

The last security related ground of inadmissibility applies to people who were participants in Nazi era persecutions and those who have engaged in genocide.

There are no waivers for the security grounds of inadmissibility except for cases dealing with export control issues.

What changes have occurred in security checks for entry to the US since 9-11?

Since 9-11, a massive coordination among many different government agencies targeting national security has lead to a steady stream of changes. The DOS has streamlined visa application procedures and improved the security advisory opinion process. DOS performs a CLASS ^[1] database check on every visa applicant. A consular cannot approve any visa application without confirming the CLASS completion. US agencies constantly update CLASS records, which are reported to number over 18 million. Many other government intelligence databases also maintain terror watch records.

Also, many changes have been made in the issuance of other security checks such as security advisory opinions, a more elaborate check on a walk-in visa applicant. A consular must now wait before issuing the visa for an affirmative response from all relevant agencies once this check is initiated.

Similar to the security checks performed during consular processing, the USCIS performs IBIS database checks on all nonimmigrant, immigrant and citizenship applications. If IBIS generates a "hit", the USCIS will consult with the agency that inputted the information before adjudication of the application. Other security checks performed by the USCIS include fingerprint checks and the FBI name check. If a hit is generated in the FBI check, the USCIS must wait for the FBI to clear the applicant before adjudication.

A DOS consular officer initiates the security background checks for visa applicants who meet certain criteria for special processing requirements. The Enhanced Border Security and Visa Entry Reform Act of 2002 requires a security advisory opinion on all nonimmigrant applicants, both male and female, over the age of 16, from a list of “State 6” nations ^[2] deemed state sponsors of terrorism and males over the age of 16 to 45 from the “List of 26 Countries.” ^[3] Non-immigrant visa applicants from those countries must complete the DS-157 Supplemental Application Form.

For information on the types of security checks by nationality, please visit www.travel.state.gov.

Also, visa applicants who generate a "hit" based on other criteria listed as security grounds for inadmissibility may require a security advisor opinion.

Beginning in 2002, as a result of 9-11, new security checks were implemented at all levels by the Enhanced Border Security and Visa Entry Reform Act of 2002 particularly for students pursuing certain academic studies on the Technical Alert List (TAL), especially those from "State 6" nations and those nations on the "List of 26." Foreign students coming to the US to study advanced research or studies in a field listed on the Critical Fields List of the TAL, face close scrutiny, and in most cases must obtain a security advisory opinion from the DOS.

Another development since is 9-11 is SEVIS registration now mandatory for all foreign students. SEVIS regulations, that oversee F, J, and M exchange visitors through integrated computer systems, were implemented on January 30, 2003 for the purpose of tracking these visitors worldwide. SEVIS requires schools to report all changes in a foreign student's program.

About The Author

Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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