Bordering on change

In the aftermath of the horrific events of Sept. 11, many employers, foreign national workers and travelers both American and foreign-born have raised fearful concerns regarding potential changes in immigration policy and procedure.

Due to external threats realized by the unspeakable acts of terror in September, it is inevitable that many areas of the law will be affected, perhaps none more than those touching upon immigration, already one of the most politically charged areas of law.

Modifications to immigration policies and laws directly affect businesses that depend on foreign travel, as well as the foreign-born population of the United States — approximately 27 million people, nearly 10 percent of our population.

In addition, U.S. consulates issued approximately 4.2 million business and tourist visas last year. An estimated 20 million to 25 million foreign nationals enter the United States each year on either the Visa Waiver Program or with another temporary visa status.

History has shown that knee-jerk legislative reaction to national events can lead to unintended consequences such as the Palmer raids of the 1920s or the government internment camps detaining 120,000 U.S. citizens and immigrants of Japanese origin during World War II.

On the other hand, the Sept. 11 tragedy may push Congress to act on proposals that would lead to a reorganization of the Immigration and Naturalization Service, splitting the agency into two distinct sections, one devoted to enforcement and the other to adjudicating immigration benefits. It is widely accepted that a division along these lines will lead to greater efficiency and improved service.

More than one congressperson has called our borders “loosey-goosey.” Is it possible to significantly increase border security and still thrive economically?

For example, 30,000 vehicles pass across the Ambassador Bridge in Detroit every day. Hypothetically, if half of the vehicles contained U.S. citizens and could easily pass through inspection, and the remaining half had to be entered into an entry/exit control system, and if each entry into a database took only 30 seconds, it would take five days to process each of those vehicles. America would be brought to its knees economically; the land borders would be effectively closed by such a system.

There has been a shift in the public’s acceptance of what, prior to Sept. 11, could have been described as an easing of immigration policy — an easing that could have resulted in the legalization of millions of illegal immigrants residing in the United States.

Various pro-immigrant legislative initiatives that once had strong labor and political support have been indefinitely shelved. Both the recent negotiations between President Bush and President Fox of Mexico concerning undocumented Mexican workers and the temporary extension of another legalization effort [Section 245(i)] have been placed on the back burners.

Enactment of these proposals would benefit millions of unlawful immigrants in the lower socioeconomic strata who often fill jobs not pursued by U.S. workers, namely positions in restaurants, hotels and farming. What was viewed as a rising tide of public support intent upon undoing draconian measures of the immigration law implemented as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 — enacted soon after the Oklahoma City bombing — has disappeared.

Instead, we are seeing proposals that make it easier for the government to track the whereabouts of, electronically monitor, detain and deport immigrants, while civil libertarians are crying foul.

To travel or not to travel?

The globalization of commerce has made international business travel a necessity. Many employers are rethinking their travel programs, keeping employees grounded until the perceived risks and inconveniences have been alleviated.

Companies’ nonimmigrant workers are likely to experience heightened scrutiny and substantial delays when traveling internationally. Employers (and foreign national employees) should seriously consider the necessity of foreign travel, whether for business or personal reasons.

In the immediate aftermath of Sept. 11, nonessential international travel must be re-evaluated. At the very least, the traveler must be prepared for substantial delays and possible complications upon re-entry.

Delays should be expected at customs and when dealing with airport and airline security checks. The arrival at the gate 15 minutes before take-off may be a thing of the past. During peak travel times, especially during the holiday season, it is critical to arrive early in light of the recently implemented airport security measures.

Travelers will also encounter significant delays when processing through immigration, as INS officials will closely scrutinize identification documents and eligibility for admission. There are indications the INS has targeted nationals of as many as 50 countries for thorough scrutiny. After profiling, these individuals can expect to be directed to secondary inspections and subject to FBI checks, full body searches, photocopying of documents and videotaping of inspection.

For foreign workers traveling domestically, it is prudent to carry a passport, the Form I-94 Arrival/Departure Document and the Form I-797 Approval Notice, as there have been reports that nonimmigrants have been questioned and asked for this documentation when boarding domestic flights.

In the face of intensified scrutiny, it has become critical for companies employing foreign workers to consult with their attorneys. Appropriate legal counsel may not save time at the airport but may help provide a framework for understanding and dealing with issues arising from recent, tragic events.

Kenneth J. Robinson is an attorney at Vorys, Sater, Seymour and Pease LLP who represents businesses and individuals in all facets of immigration law. He can be reached at 464-8383 or [email protected].