The Enhanced Border Security and
Approximately eight months after the terrorist attacks of September 11, on May 14, 2002, President George W. Bush signed the Enhanced Border Security and Visa Entry Reform Act of 2002. This new law, enacted by an overwhelming, bipartisan majority in both Houses of Congress, originally was drafted and sponsored by Senators Dianne Feinstein (D-CA), Jon Kyl (R-AZ), Edward Kennedy (D-MA) and Sam Brownback (R-KS), and Representatives James Sensenbrenner (R-WI) and George Gekas (R-PA). It represents the most comprehensive immigration-related response to the continuing terrorist threat America faces.
The Border Security law contains several provisions that are critical to our ability to control our borders. Among the most important are:
H.R. 3525 is not a panacea, but it is a tough, common-sense law that sends the right message: The United States must regain control over our borders and our ports of entry, and we expect our border control agencies to carry out their duty to protect our nation and our citizens from those who seek to exploit our generosity. Ironically, President Bush himself tried unsuccessfully to dilute this message by forcing Congress to attach a de facto amnesty to the measure.
The administration’s attempts to re-enact Section 245(i) of the Immigration and Nationality Act are, in part, why it took Congress so many months to pass this new law. Initially resisting pressure from the White House to add re-enactment of Section 245(i) to H.R. 3525, the House of Representatives first passed the bill by voice vote on December 19, 2001. It was held up in the Senate by Sen. Robert Byrd (D-WV), who insisted that the bill come to the Senate Floor for a full debate and amendment, rather than being passed with no debate by Unanimous Consent. In March of this year, the administration convinced House Republican leaders to attach a temporary re-enactment of Section 245(i) to the Border Security bill, call it H.Res. 365, and bring it to the House floor on the Suspension Calendar, which requires a two-thirds vote for passage. H.Res. 365 passed the House on March 12 by a margin of one vote. Had White House lobbyists not been on the House floor cajoling Republicans to vote for the measure, it is unlikely that it would have passed.
When H.Res. 365 was sent to the Senate for consideration, Sen. Byrd was joined by Sen. Bob Smith (R-NH) in opposing any Unanimous Consent agreement. Finally, an agreement was reached in the Senate to bring the clean H.R. 3525 [i.e., without Section 245(i)] to the floor for debate and a vote. The measure passed the Senate by 97-0 on April 18. On May 8, the House agreed to the bill, as amended by the Senate, by a vote of 411-0. A detailed summary of the new law follows.
The complete text of the law is available on line at:
Interim Data-Sharing System
This provision also restricts the use of the information in the system so as to protect privacy, and it creates criminal penalties for the misuse of the information. Finally, it advances from October 2003 to January 2003 the deadline by which the Attorney General (AG) and the Secretary of State must develop and certify a technology standard to verify the identity of non-citizens seeking entry into the United States, and it requires the first progress report on the use of the technology standard to be submitted to Congress by October 2002, rather than the April 2003 deadline included in the PATRIOT Act.
The Chimera System
This section requires the Chimera system to incorporate the technology standard the AG and the Secretary of State are required to develop (Sec. 201), and it requires that the technology standard include appropriate biometric identifier standards. It specifies that consular officers responsible for visa issuance, federal officials responsible for determining the admissibility or deportability of aliens, and federal law enforcement or intelligence officers responsible for investigating or identifying aliens all must have ready access to the Chimera system, but requires the President to establish procedures to restrict other access to the system.
The Chimera system must incorporate linguistically sensitive algorithms that can account for variations in name formats, spelling and other name elements within a particular language. The Secretary of State is responsible for designating at least four languages for which such algorithms must be developed and for implementing those four by November 2006. The President is required to report to Congress every six months, beginning in November 2002, on the progress made in implementing Chimera.
Section 203 provides for the establishment, by October 26, 2002, of a nine-member, bipartisan commission to provide oversight of the development of the Chimera system and to monitor the protections against unauthorized use of the system
Section 204 authorizes the AG to waive employee classification, pay and performance standards in hiring and setting the pay for any scientific, technical, engineering or analytical personnel necessary for the development of Chimera. The AG must present Congress with an operating plan by this August on how he intends to use this authority, which terminates upon implementation of the system.
Electronic Visa Files
Biometric Travel Documents
Terrorist Lookout Committees
Section 305 requires the Secretary of State to ensure that all consular officers responsible for adjudicating visa applications are given special training in the effective screening of visa applicants who pose a potential threat to the safety or security of the U.S. The Secretary also is required to coordinate with the Office of Homeland Security, federal law enforcement agencies, and the intelligence community so that unclassified law enforcement and intelligence information on terrorists and terrorism is disseminated to consular officers.
Bar on Nonimmigrants from State Terror Sponsors
Tracking Passport Theft
Section 308 requires the AG, within 72 hours of notification of the loss or theft of a U.S. or foreign passport, to enter the identification number of such passport into the Chimera system. To the extent practicable, the AG also is required to enter into Chimera the identification numbers of passports previously reported lost or stolen. Until Chimera is fully implemented, the AG is required to enter data on lost or stolen passports into an existing data system used to determine the admissibility or deportability of aliens.
Identifying Refugees and Asylees
Title IV — Inspection and Admission of Aliens
It requires the President to examine, in particular:
1) the feasibility of establishing a program under which foreign nationals traveling to the United States, Mexico, or Canada could submit to a voluntary pre-clearance procedure to determine their admissibility before they arrive in North America;
2) the feasibility of expanding the current pre-inspection program to include foreign nationals on air flights to Mexico and Canada; and
3) the feasibility of cross-training and funding inspectors from Mexico and Canada to participate in the pre-inspection program.
This section requires that all arrival and departure manifests be transmitted electronically to border officers by no later than January 1, 2003. No carrier that is required to submit manifest information may be granted clearance papers until the proper manifests have been submitted, except that the AG may permit commercial vessels or aircraft that make frequent trips to the U.S. to submit departure manifest information after departing the U.S. The penalty for carriers that violate this section is a fine of $1,000 for each person with respect to whom full and accurate manifest information is not provided. No commercial vessel or airline may be granted clearance to enter the U.S. until any penalties levied on the carrier have been paid. Finally, this section requires the President to study the feasibility of expanding the passenger manifest requirements to commercial carriers that transport people by land to or from the United States and to report his findings to Congress by May 14, 2004. These provisions take effect upon enactment.
Inspection Time Limit
Joint Canada-U.S. Border Projects
— Foreign Students and
Foreign Student Monitoring System
1) the issuance of documentation of acceptance of a foreign student by an approved educational institution or exchange visitor program;
2) the transmittal of the acceptance documentation to appropriate consular officers at State;
3) the issuance of a visa to a foreign student (either an F or M nonimmigrant visa) or exchange visitor (a J nonimmigrant visa);
4) the admission into the United States of the foreign student or exchange visitor;
5) the notification to the approved educational institution or exchange visitor program that the foreign student or exchange visitor has entered the U.S.;
6) the registration and enrollment of the student or exchange visitor; and
7) any other relevant act by the student or exchange visitor, including changes of schools and termination of enrollment.
It requires educational institutions and exchange visitor programs to notify the INS within 30 days of the class registration deadline if an alien fails to enroll or begin classes. It requires the AG to collect additional information about F, J and M nonimmigrants, including the date and port of entry, the date of enrollment in an approved program, the degree program and/or field of study, and the date of and reason for termination of enrollment. It directs the AG to establish periodic reporting requirements for participating educational institutions. It requires applicants for F, M and certain J nonimmigrant visas to provide U.S. consular officers with their address in their home country, the names and addresses of their immediate relatives, the names of people in the home country who could verify information about the applicant, and any previous work history.
Interim Foreign Student Monitoring Program
Institutional Compliance Review
Title VI — Miscellaneous Provisions
Border Crossing Cards
International Data Sharing
Exemption for Certain Aliens. Section 604 states that nothing in this bill is intended to impose requirements that are inconsistent with NAFTA or to require additional documents for aliens granted documentary waivers by the AG and the Secretary of State. The practical effect of this provision is to exempt many Canadian visitors and certain other aliens from participation in the automated entry and exit system, since they will not be required to apply for machine-readable, biometric visas or other travel documents.
Absconder Report. Section 605 requires the AG to report to Congress by January 15 of each year the total number of aliens who failed to appear at a removal proceeding in the past year, after having been arrested, served a notice to appear, and released on their own recognizance. The report covering absconders in 2001 must be submitted to Congress by November 15, 2002.
Section 606 requires State to retain every application for a nonimmigrant visa, regardless of whether the application was approved or denied, for a period of seven years from the date of application.