R 020250Z NOV 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
HQ USUSCIS WASHDC
UNCLAS STATE 190946
VISAS INFORM CONSULS
E.O. 12958: N/A
SUBJECT: Visa Provisions in USA-PATRIOT Act Series: No. 1
SUMMARY: On Friday, October 26 the President signed the "Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" (USA PATRIOT) Act of 2001. The Patriot Act in titles IV and X contains several provisions that will have an impact on general immigration matters and visa issuance. This message provides a general overview of the immigration and visa-related sections, emphasizing several "saving clauses" that can affect immediate visa activities and which have short time frames. There are many other provisions mentioned relating to information sharing, interagency cooperation on border controls and criminal and security visa ineligibilities. All sections relating to visa activities are or will be the subject of septel in more detail.
I. Savings clause requiring immediate attention:
1. Section 424 provides:
a. An alien will still be considered a "child" for 90 days subsequent to an alien''s 21st birthday, if the birthday was in September 2001, and the alien is the beneficiary of a petition or application filed on or before 9/11/01, for the purpose of adjudicating the petition or application.
b. If the 21st birthday of the beneficiary of such a petition or application is after September, 2001, the alien will still be considered a "child" for 45 days following that birthday for purposes of adjudicating the petition or application. Note that children whose 21st birthdays occur after 9/30/01 could benefit from this provision for years to come.
c. This provision is not/not limited specifically to immigrants, although as a practical matter that is where its application is likely to arise.
d. Consular officers should begin to adjudicate such cases immediately. Visas may not be issued, however, until posts receive instructions on how to do so, as the software will not accept an overage case for issuance.
II. Other "savings" type provisions:
2. These provisions are triggered by deaths, disabilities, or loss of employment due to "a specified terrorist activity", which is defined in Section 428 as one conducted "against the Government or the people of the United States on September 11, 2001. Although for shorthand purposes, this cable refers generically to "terrorism", in all cases it refers specifically and only to the events of 9/11/01. It must also be noted that no action can be taken on these provisions until the AG has established evidentiary criteria, pursuant to section 426.
3. Section 422 extends various deadlines when an alien applicant or visa recipient was adversely affected by terrorist actions. Circumstances preventing the alien''s timely action are defined as office closures, mail or courier service cessations or delays, airline flight cessations or delays, and other closures, cessations, or delays affecting case processing or travel.
a. Subsection (c) allows an immigrant visa number issued to a diversity alien for fiscal 2001 to be used between October 1, 2001, and April 1, 2002, if the alien was prevented from using it during FY-01 as a direct result of a specified terrorist activity. The Department interprets this section to apply to persons who actually received DV visas, but were unable to use them. Inasmuch as the aliens covered by this provision already have immigrant visas, consular officers need take no action at this time.
b. Subsection (c) also provides that if a principal diversity immigrant alien to whom an FY-01 immigrant visa number had been issued died as a result of terrorist activity, the aliens who were the spouse and children of that alien on September 10, 2001, are. until June 30, 2002, entitled to the provisions of INA 203(d) as if the principal were not deceased and as if the spouse or child''s visa application had been adjudicated by September 30, 2001. Therefore they may still apply for and receive DV visas until June 30, 2002. Note specificity of "spouse and children on September 10,2001" which effectively prevents a "child" on 9/10/01 from aging out prior to 6/30/02 in the instance of the death of the principal. Inasmuch as the legislation requires the Attorney General (AG) to establish criteria for determining that a death occurred as the result of terrorist activity, consular officers need take no action until notified by the Department of such criteria and the procedures for establishing eligibility.
c. Subsection (d) extends the validity until 12/31/01 of any immigrant visa that expires or expired prior to December 31, 2001, if the alien was unable to effect entry due to a terrorist activity. No consular action required.
d. Other subsections apply to aliens in the United States who missed various deadlines due to terrorism.
4. Section 423 benefits surviving spouses and children of citizens and lawful permanent residents who died as a result of terrorism.
a. Subsection (a) entitles the surviving spouse and/or child of a citizen deceased as a victim of terrorism to retain immediate relative status by self-petitioning within 2 years of the date of death under the terms of INA 204(a)(1)(A)(ii). With respect to such a child self-petitioning, changes in age or marital status shall not be considered if the petition is filed within 2 years of the date of death. No immediate consular action pending AG death criteria and petition filings.
b. Subsection (b) entitles aliens classified as 2nd preference relatives on the basis of being named in a petition according such status filed by an LPR who died as a result of a terrorist act to retain that status without filing a new petition. Any spouse, child, unmarried son or daughter of such an LPR who is not a beneficiary of a 2nd preference petition but was physically present in the United States on September 11, 2001, may file a petition for that status. No consular action pending determination of death criteria by the AG and petition, if necessary.
c. Subsection (c) benefits survivors of employment based immigrants who had applied for adjustment of status prior to the death of the principal due to terrorism. No action pending AG death criteria.
5. Section 421 authorizes Special Immigrant status for aliens beneficiaries of petitions filed on or before 9/11/01 or an application for labor certification filed prior to that date if the petition or application was revoked or terminated due to terrorism which caused the death or disability of the petitioner, applicant, or alien beneficiary, and if the alien files a petition for status under INA 203(b)(4). The petitions must have been for immigrant status under INA 203(a) or (b) or for NIV fiance(e) status under INA 101(a)(15)(K). INA 212(a)(4) is made not applicable with respect to eligibility for a visa or admissibility.
a. This provision also benefits the spouse or child of a principal alien described above if accompanying or following to join not later than 9/11/03. If the principal alien is deceased due to the terrorist act, the fact of that death is to be disregarded.
b. A grandparent also benefits from this provision if both parents of the grandchild died as a result of terrorism and if one of the parents was a U.S. citizen or national or an LPR.
c. Immigrant visas will be made available in petition filing date order but if the alien already had a priority date based on the initial petition, that priority date may be maintained.
d. As with other provisions above, this cannot be implemented until AG has established evidentiary standards.
III. Other provisions:
6. Sections 401 and 402 authorize a tripling of personnel on the Northern border to improve the security of that heretofore largely-unmonitored area.
7. Section 403 amends INA 105 to require the AG and FBI to provide extracts from the NCIC-III file to State and USCIS, with periodic updates. Fingerprints are required to obtain full contents of criminal records. Dept. is required to promulgate final regulations within 4 months to ensure effective measures for implementing this arrangement. Note that access to the names in FBI records for all CLASS checks was one of CA''s top legislative priorities for this year. Additionally, Dept and AG must develop and certify a technology standard for confirming identity, within 2 years, which will be integrated into a cross-agency system.
8. Section 404 deletes a limitation on USCIS overtime pay that was in the Justice Dept''s appropriations act.
9. In section 405 the AG must report on the feasibility of enhancing the FBI''s Integrated Automated Fingerprint Identification System (IAFIS) for visa purposes.
10. Section 411 amends INA 212(a)(3) to expand definitions of terrorism and terrorist acts, and related topics. Septel follows immediately elaborating on this.
11. Section 412 addresses mandatory detention of suspected terrorists and related judicial issues.
12. Section 413 amends INA 222(f) to authorize SecState to provide information in CLASS to a foreign government in connection with multilateral cooperation against terrorists.
13. Section 414 expresses the sense of Congress that the AG should fully implement the integrated entry and exit data system called for in IIRIRA and establish a task force to effect this. Section 415 makes the Office of Homeland Security a participant in the Task Force.
14. Section 416 requires the AG to expand use of SEVIS (Student and Exchange Visitor Information System) to schools countrywide and adds air flight, language training, and vocational schools to the academic institutions which are already subject to this system.
15. Section 417 requires closer monitoring of machine readable passport requirement in INA 217 and advances the date from October 1, 2007, to October 1, 2003, by which all aliens entering under the VWP must present a machine readable passport, subject to a waiver of such an advance by the Secretary based upon a determination that the alien''s country is making sufficient progress toward meeting VWP passport requirements.
16. Section 418 requires study of "consulate shopping" and, if it exists, fixing it.
17. There are no sections 419 or 420.
18. Section 425 authorizes AG to grant administrative relief to alien relatives of victims of terrorism if they were lawfully in the United States on 9/10/01 and not entitled to any other relief under these provisions.
19. Section 426 requires the AG, as noted above, to establish evidentiary standards to determine whether the death, disability or loss of employment was the result of the specified terrorist activity. Regulations are not required.
20. Section 427 prohibits any of these provisions to give benefits to terrorists or a terrorist''s family members.
21. Section 428 defines "specified terrorist activity" as being those against the United States on 9/11/01.
22. Section 1006 amends INA 212(a)(2) to include money laundering as defined in U.S. criminal laws. The Secretary is required to develop a watchlist of money laundering individuals within 90 days. Septel will follow shortly. However, consular officers who have immediate concerns regarding a particular visa applicant should contact CA/VO/L/A.