January 1, 1900

On October 12, 2001, James W. Ziglar, the Commissioner of the Immigration and Naturalization Service, presented a statement to the Senate Subcommittee on Technology, Terrorism, and Government Information ("Committee"). The statement was offered to advise the Committee about how technology can be utilized to improve our immigration system in light of the tragedy of September 11, 2001. The crux of the Commissioner's statement addressed two database improvement projects which have previously been mandated by Congress. These are the Student Exchange Visitor Information System ("SEVIS") and the Data Management Improvement Act.

SEVIS is designed to afford more rapid access to the limited records currently maintained on foreign students, as well as provide for the housing of readily accessible data for all foreign national students holding visas. Congress designated a deadline on December 20, 2003 for the implementation of the SEVIS system, and unfortunately prior to September 11, 2001, the development and deployment of the system were hampered by objections from academic establishments. However, at the time of his statement, the Commissioner assured the Senate that the INS intends to beat the deadline. While the SEVIS system is essential to shoring up the United States' ability to monitor foreign national students, the Commissioner advised that its effectiveness relies upon the review and revision of the process by which foreign students gain admission into the U.S.

Does The INS Have Any Legal Basis For Its Actions?

The Data Management Improvement Act, passed by Congress in 2000, requires the development of a fully-automated integrated entry-exit data collection system. Currently, the INS collects data on the entry and exit of certain visitors in paper form which must be transferred to an electronic database in a painstakingly inefficient manner which results in weekly or monthly delays in access to the information. The new system would be instantaneous and is slated for initial deployment at airports and seaports by the end of 2003, the 50 largest land ports by end of 2004, and all remaining ports by the end of 2005. In conjunction with the previous two database projects, the INS continues to work with other Departments and Agencies in order to better prevent the entry of persons who wish to do harm to America's citizens, residents, visitors and institutions. Unfortunately, there is one area which the commissioner failed to address in accomplishing his tasks-that is the requirement of fingerprinting for non-immigrant visas.

What About Fingerprinting?

Currently, the INS only requires the fingerprinting of aliens who are seeking adjustment to permanent resident status (green card) or naturalization. Any foreign national seeking entry into the United States on a non-immigrant visa does not have to be fingerprinted. Nonimmigrant visas include the tourist visa, student visas, and certain work visas, the most common of which is the H-1B. More disconcerting is the fact that under the H-1B visa, family members of the alien are eligible for visas under a derivative visa for which the application process fails to conduct a fingerprint and background check.

The information which America has gained from the terrible events of September 11, 2001 has revealed that those, who seek to harm our citizens, institutions and way of life, are not in this country with a green card and certainly are not seeking naturalization. Rather, such persons are using our less stringent nonimmigrant visa system to enter the United States and utilize the fruits of this nation's principles against it. The principles that our country was founded upon provide for independent business and a freely accessible higher educational system. These very principles are being exploited in an effort to destroy the basis which affords their existence. And while another fundamental characteristic of our country is America's diversity, these times have caused us to sacrifice certain liberties in order to preserve freedom.

A potential solution would be if the INS implemented fingerprinting for all non-immigrant visas in conjunction with a re-fingerprinting process when extensions of stay are requested. This would create a more stringent process for non-immigrant visas. Such requirements combined with the policies presented by the commissioner would serve to better protect our country.

Regardless of whether the INS pursues a modification to the fingerprinting procedures, in light of the recent events of September 11, 2001, there shall be continuing and significant changes that will be made to our INS regulations. As a direct result, it is imperative that individuals, educational facilities and corporations have adequate legal advice with respect to such immigration related matters.