Tag Archive for: Immigration and terrorism

Cyrus Mehta

San Bernardino Attacks Fallout: Will it Get Harder for Americans to Marry Foreign Spouses Overseas?

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The USCIS has promised to review the K-1 visa procedures after the San Bernardino attacks since one of the attackers entered on this visa. The K-1 visa is commonly used by a fiancé of a US citizen spouse to enter the United States, and one of the conditions (with some exception) is that the parties must have met within the past two years prior to filing the application. Once the fiancé enters the United States, he or she must get married to the US citizen within 90 days, and then apply for the green card.

While it is unfortunate that a foreign terrorist used the K-1 visa, this does not mean that the K-1 visa should be restricted for all fiancés. The K-1 visa provides the only access for a fiancé to enter the US. While one can enter the United States as a visitor to get married, one cannot also enter with the intention of adjusting to permanent residence status in the United States. Curtailing the K-1 visa will also limit the ability of US citizens to seek foreign spouses. Moreover, the K-1 visa procedure already has in built rigorous screening, and this author has known of delays due to security clearance of K-1 applicants even prior to the California terrorist attacks that left 14 people dead.

As an alternative to the K-1 visa, a US citizen can marry a foreign spouse and directly petition for an immigrant visa. There is only a marginal difference in the time it takes under both the processes.  From the point of view of not waiting to celebrate the marriage, it is quicker. However, in terms of processing time, it takes about the same amount of time for a K1 visa or marriage based I-130 petition to get approved, and the same amount of time for the scheduling of the interview at the US consulate. Once the K-1 visa is issued, the parties have to get married in the United States within 90 days prior to filing the green card application (if they get married after 90 days, the I-130 petition must be filed). Thus, there is an additional extra step before the applicant can receive the green card when compared to a beneficiary of a spousal I-130 visa petition who is admitted into the United States as a permanent residence.

Even if the K-1 visa is not curtailed by Congress (and hopefully that will not be the case), there is bound to be more scrutiny after the shootings. To be eligible for the K-1 visa, it is important that there be no legally valid marriage as the applicant must remain a fiancé. Even religious marriages that are legally recognized as marriages may disqualify the applicant.  The authorities will try to ferret out cases if they discover that the parties got married prior to the issuance of the K-1 visa. In traditional cultures, a marriage is generally preferred, and if an applicant is not permitted to be with the prospective US citizen spouse without a marriage, one should not file the K-1 visa and directly file for a spousal immigrant visa. In fiscal year 2014, only 4 K-1 visas were issued in Saudi Arabia as compared to 7, 228 K-1 visas in the Philippines. Still, even if there is no marriage, the authorities will look more closely after the San Bernardino shootings to see whether this is a bona fide relationship, which is harder to prove when there is no marriage. There will also be more security checks and delays relating to the K-1 visa, although even in the past, delays as a result of security checks were extremely frequent.

The essential point that must be made is that terrorism is separate from immigration. While additional screenings for K-1 visa applicants will be inevitable, they must not in effect nullify the K-1 visa. By the same token, beneficiaries of marriage-based I-130 petitions should also not get excessively delayed as a result of additional scrutiny. Both the K-1 and I-130 procedures take upward of six months, and fiancés as well as spouses from countries with predominant Islamic populations have in any event been impacted since 9/11. It has also been revealed that the shooter who received the K-1 visa also talked openly on social media about violent jihad. Those social media comments were not subject to the security checks that she underwent, and in the future, the authorities are more likely to pry into one’s comments on social media. While comments relating to causing violence should be taken seriously in the visa application process, it is hoped that harmless comments made in the exercise of free speech in opposition to US policy or events, such as feeling disgust about Donald Trump’s statements regarding banning Muslims or criticizing US drone policy, should not be used as a basis to play “gotcha” during the security screening of a visa applicant.

US citizens must be free to marry foreign spouses of their choosing. Imagine if Trump’s desire to ban Muslims from being admitted become reality. Americans will not be able to bring in fiancés or spouses who are Muslims. Note that this has de facto been the case, exemplified in the Supreme Court case of Kerry v. Din, where the plurality of the court upheld the limited power of courts to review adverse consular decisions. In Kerry v. Din, the foreign national spouse in Afghanistan was denied an immigrant visa by citing the terrorism ground of inadmissibility, INA 212(a)(3)(B), without any further explanation.

US immigration law is already very complicated, made further convoluted with security checks since 9/11. There is no need for Congress to curtail the K-1 visa, which in turn will make it harder for Americans to marry foreign spouses abroad. It is hard for an employer to sponsor a foreign national employee for a green card as the employer must certify that it was not able to find an available and willing US worker before being able to sponsor a foreign employee for a green card. The reason for this is that there is a countervailing policy interest in protecting American jobs.  It would be absurd to similarly restrict an American’s ability to marry and sponsor a foreign spouse as a result of countervailing security concerns. One unfortunate misuse of the K-1 visa, which has otherwise worked very well, should not be the reason to make it harder for Americans to marry foreign spouses overseas.

Cyrus Mehta

CHRISTMAS BOMBER AND REVOCATION OF VISAS

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It has now become acceptable wisdom that the State Department should have revoked the visa of the Nigerian, Mr. Abdulmutallab, who attempted to detonate a bomb on the flight to Detroit on Christmas Day. Here is an extract from a New York Times editorial, The System Failed (http://tiny.cc/FwCPz), dated December 29, 2009:

“What makes this so much worse is that officials had something they can’t always expect: fair warning. In mid-November, Mr. Abdulmutallab’s father, a prominent banker in Nigeria, went to the American Embassy in Abuja to ask for help and warn them of his son’s increasing “radicalization.” The State Department, working with other agencies, had the power to revoke the son’s visa or put a temporary hold on it. Officials say the warning was insufficient. That seems like a very bad judgment call.”

On hindsight, when we have 20-20 vision, it may have been a bad judgment call on the part of the State Department for failing to revoke his visa. But is the State Department to bear the brunt of the blame? I don’t think so. Take for example the case of someone, say a national of Nigeria, who possesses an F-1 student visa and is studying at Harvard University. He has a personal feud with his spouse and her family while on vacation in Nigeria. Her spiteful father decides that the best way to nail him is to falsely report to the US Embassy that he has become increasingly radical by associating with extremist Muslim clerics. After the drubbing that the US Embassy got with the Christmas bomber, they will likely take no chances and revoke his visa. He gets stuck and cannot return to study at Harvard even though the report was false and baseless.

In a world that is increasingly fearful of that one individual who can cause mayhem and destruction, it is all too tempting to take away immigration benefits or to deport foreign nationals on mere suspicions. Clearly, there can be other layers of safeguards before revoking immigration benefits on mere suspicions. The New Times editorial goes on to add:

“The embassy did pass on the father’s information, as required, to the National Counterterrorism Center and the son’s name was added to a database of 550,000 people with some alleged terrorist connections. Officials decided that the warning wasn’t enough to put him on the list of 14,000 people subjected to more thorough airport searches or to the 4,000-person “no fly” list. That was clearly a very bad call.”

I agree that this was a very bad call. There was that one additional layer, the National Counterterrorism Center, which could have connected the dots and differentiated between the bomber and our hypothetical student at Harvard who got caught up in a family feud and became the victim of a false allegation. Even our hypthetical situation is an extreme case, and one fears that fearful consuls will refuse visas on very flimsy grounds. After all, our government had intelligence that Al Qaeda in Yemen was planning to use a Nigerian to attack the U.S. Clearly, the screening machines at the airports too failed when they could not pick up 80 grams of PETN on Mr. Abdulmutallab. We need smart intellegence to keep out terrorists, and not rely solely on immigration policy to do the job.

While we are all concerned about our safety and security, I urge our government to give pause, even after this incident, and not needlessly revoke visas, take away immigration benefits or refuse to grant immigration benefits on mere hunches and suspicions, and without probing further and connecting the dots.