Copland and Brenner

Table of Contents

1. Homeland Security Update
2. Regulatory Changes Reflect DHS Restructuring
3. Cubans’ Undetected Arrivals and Insecurity In The Homeland
4. New Faces, New Responsibilities
5. Public Concerns and Online Resources
6. INS Fees Restored
7. 2003 Poverty Guidelines Issued
8. Nseers Summary
9. Harsh Tourist/Business Visitor Regulation Withdrawn

1. Homeland Security UpdateOn Saturday, March 1, 2003, the Department of Homeland Security officially became the newest component of the federal government’s executive branch. When the 22 federal agencies responsible for the security of the U.S.A. at its borders and within the interior opened for business the following Monday, a new era was upon us, complete with regulatory changes, personnel appointments, and new internet sites. Underlying these changes were some stark reminders of the enormity of the challenges facing DHS, and all of the above are topics in this month’s Homeland Security Update.
2. Regulatory Changes Reflect DHS RestructuringBy virtue of three notices published in the Federal Register between February 28 – March 6, 2003, the Department of Justice (“DOJ”) reorganized and amended Title 8 of the Code of Federal Regulations to reflect the transfer of certain immigration functions to the DHS. Because the rules are considered technical rather than substantive, the notices constitute final rules requiring no notice prior to implementation.
   
   The changes to Title I of the regulations at 8 CFR now reflect that the benefits and enforcement functions of the Immigration and Naturalization Service have been transferred to the DHS. A new chapter V has been created, to which regulatory provisions of the Executive Office for Immigration Review (i.e., the Immigration Court administrative review system) have been transferred. As mandated by the Homeland Security Act, Chapter V reflects that the EOIR remains a part of the DOJ under the authority of the Attorney General. Notably, while “the Secretary of Homeland Security can continue to publish appropriate precedent decisions,” “the Attorney General has specified the reservation of the parallel authority to refer cases to himself for decision at any time.”
   The format of Chapters I and V are parallel to ease public understanding of processes that may involve both DHS and DOJ components. In fact, large sections of the regulations found in Title I are duplicated in Title V because the provisions “are so interrelated that no simple division of jurisdiction is possible.” It remains to be seen whether this will be a “recipe for disaster,” such that different standards and results will arise depending upon the arena in which a decision is rendered.
   
   “For purposes of simplicity,” this February 28 rule “continues to refer to the transferred functions as functions held by the [now defunct] INS.” Further changes will be required to implement the division of immigration-related responsibilities among the Bureaus of Citizenship and Immigration Services (“CIS”), Customs and Border Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”).
3. Cubans’ Undetected Arrivals and Insecurity In The HomelandUnfortunately, skeptics of government efforts to restrict unlawful access to the U.S.A. and those concerned about the porosity of U.S. borders can point to two recent incidents involving unconcealed arrivals of Cuban refugees as grounds for increased insecurity. Surely, these incidents are an embarrassment at the same time when DHS restructuring and a variety of other initiatives are touted as making the U.S.A. more secure.
   
   On March 1, 2003, The Miami Herald reported that “a group of six Cuban migrants beached their homemade boat on Navy property that includes a key nerve center for the war on drugs.” The Miami paper reported that, after climbing out of their boat, the six ran past the home of a high-ranking Navy officer, “climbed a seven-foot iron fence and walked several blocks to a liquor store and bar,” bought a 12-pack of beer and used a public telephone to try to contact family members. Their February 26 approach and landing on U.S. soil were undetected by the Coast Guard or any on-duty naval patrols. By the time authorities responded to a cell phone call by an off-duty Navy officer who witnessed the landing while fishing, the six were already on shore.
   
   This incident follows one approximately three weeks earlier, on February 7, when four members of the Cuban Coast Guard arrived similarly undetected by any U.S. authorities. In that case, widely reported in the media, including The New York Times and The Miami Herald, the four reportedly docked their 30-foot Cuban patrol boat complete with Cuban flag on its mast, two AK-47 rifles and ammunition at the marina of the Hyatt hotel in Key West. When the four men stepped ashore, they wore their camouflage uniforms and one was carrying a handgun. Still undetected as they walked about two blocks into town, the men flagged down a police officer to surrender.
4. New Faces, New ResponsibilitiesMeanwhile, Asa Hutchinson, Undersecretary for Directorate of Border and Transportation Security (“BTS”), was on February 18, 2003 awarded a grade of “A” as reflected on the web site of Americans for Better Immigration at www.betterimmigration.com. On its web site, the organization is self-described as “a non-profit, non-partisan organization which lobbies Congress for reductions in immigration numbers,” and “believes the problem with immigration today is not the individual immigrant but the numbers. ‘Better’ immigration is lower immigration.”
   
   By contrast, Attorney General John Ashcroft – hardly recognized as “soft” on immigration - was granted a grade of “F” by Americans for Better Immigration. According to the organization’s web site, his low grade is a result of his Senate votes favoring “chain migration” in 1996, “importing foreign workers” under the H-1B classification, and to “reward illegals” from Nicaragua and Cuba in 1997.
   
   Also in February, President Bush appointed Eduardo Aguirre as Acting Director of the CIS. It is expected that the President will nominate Aguirre as Director of CIS, which requires confirmation by the Senate. Aguirre was most recently the vice chairman, first president and chief operating officer of the Export-Import Bank of the United States, a previous appointment by President Bush. Based upon his qualifications as set forth on the CIS web site, Aguirre, a Houston, Texas resident for 27 years, has no immigration-related experience. It remains to be seen whether he can translate his successes in business and banking to the immigration arena.
5. Public Concerns and Online ResourcesThe web site of the CIS is now located at www.immigration.gov. There, the public may find answers to many important items of concern, including whether reapplication to the new CIS is required if something is already pending before the INS (no), whether INS forms are still valid for filing with CIS (yes), to whom filing fee checks should be made out (CIS or INS are both acceptable at this time), and where petitions and applications should be filed (for now, filing and service locations are unchanged).
   Persons seeking information regarding the enforcement components of the DHS will find the ICE online at www.bice.immigration.gov/, and the CBP at http://cbp.customs.gov/.
   
   Readers seeking information regarding immigration benefits and services may visit the CIS web site or contact our office.
   
6. INS Fees RestoredBy interim rule published in the Federal Register on February 27, 2003, the INS restored its filing fees to the levels that existed prior to January 24, 2003. The change was made possible after Congress repealed a provision in the Homeland Security Act, which had precluded the collection of surcharges that fund asylum and refugee services. Current filing fees are available at the CIS online at www.immigration.gov.
7. 2003 Poverty Guidelines IssuedOn February 3, 2003, updated “poverty guidelines” of the U.S. Department of Health and Human Services (“HHS”) were published in the Federal Register. As is typical, the poverty guidelines increased incrementally to account for cost of living adjustments for the last calendar year as measured by the Consumer Price Index. For most purposes, the new guidelines became effective on the date of publication. For immigration purposes, however, the increases go into effect on April 1, 2003.
   
   Section 212(a)(4) of the Immigration and Nationality Act (“INA”) makes inadmissible to the U.S.A. “any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” In determining whether a prospective immigrant is likely to become a public charge, the INA specifies that certain factors – including age, health, family status, assets, education and skills – are to be assessed. In order to make a so-called “public charge” determination, a consular or immigration officer refers to the poverty guidelines established by HHS.
   
   For immigrant visa and adjustment of status applicants subject to the I-864 contractual affidavit of support requirement, the financial sponsor(s) must document ability to maintain an annual income equal to at least 125 percent of the federal poverty line applicable to the size of the sponsor’s household. Under the 2003 poverty guidelines, a household of two within the 48 contiguous states will require documentation verifying $14,925 in income (an increase of $225 over last year). For each additional household member, the sponsor must add $3,925 (an increase of $75 over last year). Higher figures apply to residents of Alaska and Hawaii.
   
8. Nseers SummaryTwenty-five countries are now covered by the Special Registration Program under the National Security Entry-Exit Registration System (“NSEERS”). For Groups III and IV, Special Registration expires this month as follows:
   
   Group III – Pakistan and Saudi Arabia: Registration period expires on March 21, 2003.
   
   Group IV - Bangladesh, Egypt, Indonesia, Jordan or Kuwait: Registration period expires on April 25, 2003.
   
   Aliens covered by the Special Registration program must be sure to comply with the requirement to appear for processing, as failure to do so is punishable by fine or imprisonment and/or deportation. Information regarding Special Registration is currently available on the CIS web site at http://www.immigration.gov/graphics/shared/lawenfor/specialreg/index.htm. As always, persons with any concerns regarding their immigration history or status should seek advice from a qualified immigration practitioner.
9. Harsh Tourist/Business Visitor Regulation WithdrawnIn May 2002, we reported on a proposed rule that would affect the length of stay authorized to most visitors to the U.S.A. and otherwise alter existing requirements for visitors. The rule was to affect nonimmigrants seeking B-1 or B-2 admission to the U.S.A., as well as those seeking extensions or changes of status after such admission. The rule would have severely curtailed the initial period of stay granted to many tourists and business visitors to a period of 30 days, required most “B” nonimmigrants to document “an unexpected circumstance” to remain longer, and required any “B” nonimmigrant who intends to apply for a change of status to M or F student status to state that intention upon application for admission to the U.S.A. or subsequently be denied the requested change of status.
   
   On March 4, 2003, the American Immigration Lawyers Association published a notice advising that the rule, being processed for publication by the Office of Management and Budget, had been withdrawn. (Posted on AILA InfoNet at Doc. No. 03030440) The AILA notice advised that “it is unknown whether the rule will be revived by DHS.”