As The World Turns: Immigration Law in the Post-9/11 Era

“As The World Turns.”1 It could be said that two important benchmarks in the development of contemporary Immigration Law over the past two decades have been the collapse of the Soviet Union2 and 9/11.3 Without question, the demise of the Soviet Union has had a profound and lasting effect on U.S. Immigration Law policy and practice. But before perestroika even had a chance to finish its reshaping of the world’s map, perhaps to augur a new era of global peace and democracy, the U.S. suffered its greatest terrorist attack on the morning of September 11, 2001 (“9/11”). The reaction by our legal system to 9/11 was massive. President George W. Bush and the U.S. Congress were immediately forced to reassess how to protect our country from further attacks. Various laws, the foremost being the Patriot Act,4 were passed on a fast track, and a top to bottom overhaul, still a work in progress at best, was begun of intelligence, military, other government and civil defense operations.

Among the most affected bureaucracies was the former U.S. Immigration and Naturali­zation Service (INS), which was split into two separate units involving Immigration Law operations, the U.S. Citizenship and Im­migration Service (USCIS) and U.S. Immi­gration and Customs Enforcement (ICE).5

And it was at this moment that U.S. Immigration Law entered into a new, daring and controversial era. Previously widely touted, though by many accounts unsuccessful and perhaps even counterproductive, attempts at Immigration Law reform,6 were dwarfed by the changes in America’s post-9/11 legal landscape. Immigration Law practitioners suddenly had to master a new juridical world view, replete with a controversial, contradictory statutory and regulatory corpus of enlarged proportions.

Throughout history, much like the Tax Code, Immigration Law has served as the second favorite government tool for achieving prevailing “social architecture” goals. Aus­tralia’s founding penal colonies were Great Britain’s answer to cleansing its soil of criminal elements that had begun to run amok in His Majesty’s backyard.

For more than half a century, until 1991, the Kremlin has openly used forced, criminal migration, including expatriation, exile into Siberia and forced death by famine (“Holodomor”), not only to maximize control over its closed police state, but to push Russian hegemony over its vast occupied Eastern and Central European territories by genocidal counter-colonizing schemes. For example, in the late 1940’s, to accommodate the new Communist government in Poland, the U.S.S.R. forcibly resettled tens of thousands of ethnic Ukrainian families (the “Lemkos”) by tearing them out by their ancestral roots in the middle of the night from their homelands in Communist-occupied Poland, and dropping them into western Soviet Ukraine. Likewise, the Russians condemned countless millions of Ukrainians from their native lands to the terminal gulags and artificial industrial-mining death mills of the Siberian hinterlands and the Urals. At the same time, the Kremlin assiduously, forcibly resettled millions of ethnic Russians into the displaced Ukrainians’ homes, particularly in the eastern areas around Kharkiv, the southern Black Sea regions near Odesa, and the Crimea.

So when this cauldron of suffering, enslaved, captive nations imploded in 1991, U.S. Immigration Law faced the challenge of regulating entry for massive new waves of emigres. Earlier in the 1970s and 1980, the U.S. goverment had some success with measures, such as the Jackson-Vannick Amendment,7 but today that law is totally discredited and arguably repealed. The main difference in the jurisprudential philosophy of Immigration Law pre- and post-9/11 was that, before the terrorist attacks, immigration was viewed as a broad, culturally indexed regulatory lever for balancing on-going U.S. interests vis-à-vis the presumed contributions that potential immigrant groups could offer to our society. For example, the newly industrializing Northeast of the late 19th century required cheap labor, so hundreds of thousands of foreign factory and farm laborers were admitted through Ellis Island. Elsewhere the gold rushes and other opportunities arose for Chinese and other nationalities willing to migrate to northern California, mainly around San Francisco.

After 9/11, however, Immigration Law has come to be viewed as a premier governmental mechanism for protecting national security. Though the usual work visa categories are still available, the overall new orientation is not to view immigrants as contributors, but as potential unwanted elements, harboring secret, dangerously disruptive or terroristic inclinations or in their motives for crossing our borders. Such a scenario certainly illustrates the unfortunate maxim about “difficult cases making for even worse laws.” For example, the entire border security dilemma has now come full circle as an integral factor in the new Immigration ethos. For the past two decades, border security, or the lack of it, has taken on a life of its own in legislative and social discourse, effectively overshadowing our vaunted historical inclinations to welcome people from abroad so they may acculturate on the way toward becoming productive members of our society. Proponents of this traditional immigration orientation argue that porous borders per se are not the core problem; rather, it is the lack of fair play toward new immigrants who, unable to “legalize” their status, are condemned to live a shadow existence lives, undermining our open society. Proponents of strong borders, however, argue that in our post-9/11 world border insecurity has become the paramount threat to national security from organized and random terrorists alike, who would penetrate our space to cause injury and destruction to our way of life, and to democracy in a land renowned for its Rule of Law.

Consequently, the entire menu of U.S. visa categories has undergone not just refinement, but redefinition, as indexed to “national security” concerns at every levels. Of the two Visa categories (non-immigrant Visas for temporary stay, and immigrant Visas for permanent residency).The granting of Visas in all categories, – B-1 (Business) B-2 (Tourist), H-1B (Employ­ment of credentialed professionals) and H-2B (skilled and unskilled workers), C-1 (Transit for passing through to another country), F-1 (Student) and J-1 (Exchange Visitor), – is predicated on whether the applicant could become a threat to our economic and national security; rather than solely a presumptively valued contributor to our way of life.

The one possible exception to this perspective may be the Green Card Lottery (“Diversity Lottery”) program, where individuals from around the world submit applications by email and, upon winning a green card by lottery chance, are permitted to emigrate with their families, irrespective of their work skills, education or reasons for coming here.8 The program was created to provide additional opportunities for individuals from selected “listed” countries (i.e., other than the countries that already are sending us large groups of immigrants). Yet given the Diversity Visa protocols, a considerable level of scrutiny is applied a priori before final admission approval. And practically in every case, even the slightest blemish on the applicant’s background, even from many years ago in the person’s youth back home, may summarily disqualify the entire family. Accordingly, in addition to the usual criminal background and personal character checks, important question concerning the potential for lottery winners to harbor terroristic inclinations must now be dispositively addressed pre-emptively by counsel during the pre-admission screening, all to the full satisfaction of U.S. immigration authorities to a degree previously unheard of. Perhaps the applicant should not be faulted that much for feeling “guilty” until proven innocent.

Even garden variety family-based Visas have been affected. For example, the processes for 1-R Visa for immediate relatives (limited to spouses, unmarried children under age 1, adoptable or adopted orphans, and parents of U.S. citizens over age 21), a well as the more extended “Family Preference” categories (for more distant family members, but excluding a grandparent, aunt or uncle, cousin or in-law) now entail colloquies specifically meant to identify profiles of individuals who may pose even the slightest potential, if not actual past given history, as a national security threat. While, historically, vetting of this kind is not new, today it is far more stringently enforced.

In the Visa premised on a valid marriage to a U.S. citizen, in the new K-type spousal adjustment process, just as with the K Visa for a fiancé, the scrutiny of immigration authorities is focused on disproving that the purported marriage is a sham, and/ or whether any terroristic ties are involved under color of the sham. Yet it is still difficult to prove a “negative.” All this in the name of protecting us from undesirable criminal or terrorist elements stepping through our “back” doors by marital ruse.

Likewise, the employment-based Form I-140 Green Card process has become more arduous. The applicant for either the H-1 or L-1 Visa must prove, as usual, not only his or her unique work qualifications by advanced credentials or some other metric. But now, driven by post 9/11 economic and labor conditions which have been drastically exacerbated since 9/11 with security fears being abated at confiscatory cost, the applicant not only must receive prior certification by the labor department (i.e., that there is no one already living here with equivalent skills and credentials), but the vetting process seeks to divine psychologically beyond fairly objective employment credential, i.e., whether there is any basis for the applicant’s motives to come here and propound hostility against the U.S.

There are perhaps two remaining Visa types that so far have not been affected as much by a pervasively reactive post-9/11 mindset. One is the post-NAFTA TN Visa, allowing a Canadian citizen to work here and file for permanent residence. The other involves dual citizenship, procedure for “legalizing” foreign documents for the U.S. or, conversely, affixing an Apostille to official U.S. documents for submission to Geneva Convention-signatory countries.

In the arena of international business as it intersects with Islamic (shari’ah) precepts, the post-9/11 environment already has caused a significant ripple effect across not only commercial enterprises, but even in the usually comfortable, insulated U.S. non-profit (NPO) corporate world. The transfer of funds abroad has become a particularly “hot button” issue. Homeland Security and Immigra­tion authorities alike are pro-actively investigating, preventing and punishing money laundering, fraud and other economic crimes where an outcome may be support of a terroristic entity or activity. In recent years, several Muslim NPOs, in particular, have actually lost their exempt status or were shuttered by criminal justice authorities. If ultimately proven unfounded, such government actions philosophically contradict the traditional view under IRC 501(c), where the legislative intent for a NPO (whether U.S.-based or cross-border) to be accorded exempt status as a “public charity” hinges on the fact that, historically, NPOs have provided valuable, lasting services and goods to America’s commonwealth in the realms of culture, education and social welfare. In the past two years the IRS has begun weaving a black widow’s cobweb by reconstituting a formerly meek Form 990 into a severe front line compliance regime under color of the NPO’s annual tax return. Today an entity must not only document a plethora of newly propounded (though still too abstract for comfort!) “good corporate governance” practices to warrant continued exempt status. In addition, the 990 effectively must serve to “dispel” any suggestion that the NPOs activities could support illegal conduct, especially through foreign funds exchanges or anything else that could foster some terroristic outcome.

Similarly, the years-long metamorphosis of a typical DUI case involving no serious personal injury or property injury, treated as a minor infraction with a desk ticket or mild misdemeanor, today often is accorded far higher misdemeanor or felony treatment, resulting in severe denials of liberties (i.e., loss of driving privileges, incarceration). But because of the spreading plague of undocumented aliens driving around without proper operators’ licenses or in unregistered or uninsured vehicles, suddenly the DUI bar has had to recalibrate its defense strategy against huge new stakes by transcending criminal law, but incorporating a sharpened awareness of DUI convictions as likely summary triggers for grave Immi­gration Law consequences. Hence, in addition to felony charges, the undocumented DUI defendant may face the two highest penalties under current Im­migration Law, deportation and a long-term statutory future re-entry bar. So “As Our World Turns” today, the horrific cataclysm of 9/11 continues to reverberate like some “Doppler” effect over all Americans’ lives in ways few could have imagined 20 years ago. And as the venerable historic gatekeeper for our nation’s social and economic welfare over the past 300 years, and the cradle of conscience for humanitarian outreach to legions of “huddled masses” pining for our teeming shores, Immigration Law today has assumed a new, rather raw posture in our body politic: to defend and protect our country not only from terroristic foreign incursions, but also from internal corrosion by aliens in whose hearts we impute little sympathy for preserving the best interests of our naturally tolerant and patient fellow denizens.

Andrij V.R. Szul, Ph.D., J.D., a 30 year practitioner in the area of business and international law serves as Chair of the Consular Affairs Group of the NCBA BOLD Task Force.

1. With apologies to the soap serial As the World Turns, which aired on CBS-TV from 1956 to 2010, passed its 10,000th episode in 1995 and 50th anni­versary in 2006, and was retired on September 17, 2010.
2. The reforms of decentralization and democratization that emerged during the era of “perestroika” (reconstruction) and “glasnost” (greater freedoms) under Mikhail Gorbachev, General Secretary of the Central Committee of the Communist Party of the U.S.S.R. (1985 until 1991), and as the last head of state (1988 until its collapse in 1991), President (1990-91). This perestroika began as a dissembling process of dysfunction by the totalitarian government until 1991, when the first “domino” fell, and most of the fifteen former Soviet “Republics” and three “independent” Baltic states declared their independence and sovereignty, eventually to be recognized as sovereign nation-states by the international community. While Lithuania, Latvia and Estonia had been illegally “incorporated” in 1940 into the U.S.S.R. under the notorious Molotov-Ribbentrop Pact of 1939, the fifteen Republics were simply opportunistically overrun and occupied by communist forces during the war.
3. 9/11 was a series of four coordinated jihadist suicide attacks by nineteen al-Queda-based terrorists, all but one of them Saudis, who struck the United States. On October 29, 2004, as reported by CBS News, al-Queda leader Bin Laden claimed responsibility for 9/11, www.cbc.ca/world/story/2004/10/29/ binladen_message041029.html.
4. The USA Patriot Act (commonly known as the “Patriot Act”) was signed into law by President George W. Bush on October 26, 2001. The title of the Act is based on an acronym which stands for: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.L. 107-56; full text of enrolled bill H.R. 3162 at: www.GovTrack.us.
5. These two agencies, together with six others ­ Cus­toms and Border Protection (CBP), Federal Emer­gency Management Agency (FEMA), Transporta­tion Security Administration (TSA), U.S. Coast Guard, U.S. Secret Service, and Office of Inspector General (OIG) – were rejiggered and nested into the new Department of Homeland Security, http://www. dhs.gov/index.shtm. All government immigration administrative operations were combined with enhanced counterpart law enforcement resources.
6. Such as the passage in 1986 of the Immigration Reform Act Immigration Reform and Control Act (IRCA), also “Simpson-Mazzoli Act,” Pub.L. 99-603, 100 Stat. 3359.
7. The “Jackson-Vanik Amendment” (1974) was intended to pressure the U.S.S.R. into allowing Soviet “refusnick” Jew and other religious minorities to migrate to the U.S. and Israel in the best spirit of Emma Lazarus. Unfortunately, since then this law has become a particularly odious anti-democratic relic of the Cold War, twisted to foment some of the most partisan of recent immigration controversies. The Amendment is contained in Title IV of the 1974 Trade Act (following the Soviet American Trade Agreement of 1972). The 1974 Act was pass-ed unanimously by both houses, and signed by President Gerald R. Ford on January 3, 1975. H.R. 10710, esp. §402.
8. “Diversity Lottery Program” (DLP) (1990), see: Im­migration Act of 1990 (INA), below. The U.S. issues 55,000 Visas annually. The DLP, to be applied for under Form I-485, was created in response to the greatly increased number of worldwide H-1B Visa applicants. With over 65,000 such visas already issued each year, the demand far exceeds this quota in that sometimes 65,000 people have applied on the same day. Immigration and Nationality Act (INA) (1965), §203(c), et. seq. Immigration Act of 1990; §131 (Pub. L. 101-649) amended INA §203. See also: http://www.dvlottery. state.gov, http://travel. state.gov/visa/ immigrants/ types/types_1318.html and http://travel.state.gov/visa/immigrants/types/ types_1322.html. For a list of countries by region whose natives qualify for the DLP, see: http:// travel.state.gov/pdf/1318-DV2012 Instructions-ENGL.pdf.