The Immigration and Naturalization Service's Contacts With Two September 11 Terrorists: A Review of the INS's Admissions of Mohamed Atta and Marwan Alshehhi, its Processing of their Change of Status Applications, and its Efforts to Track Foreign Students in the United States
May 20, 2002
Office of the Inspector General
CHAPTER SEVEN
THE INS'S PROPOSED CHANGES REGARDING FOREIGN STUDENTS
After the firestorm of criticism that resulted from media reports that the INS had mailed notification to Huffman Aviation approving the student status of two of the September 11 terrorists, the INS implemented several processing changes with respect to I-20s and change of status applications. In addition, after September 11, a number of regulatory changes were proposed that would affect foreigners who want to attend school in the United States and the INS's processing of I-539 change of status applications. We discuss below the processing changes that have been implemented in the last few weeks and our observations about the likely effects of these changes. We also address the proposed regulatory changes. Although we do not address all of the proposed changes, which continue to be considered, we discuss some of the more significant proposals.
On March 15, 2002, INS Headquarters issued to the field via e-mail new instructions concerning the processing of I-20s. Service centers were instructed that after adjudicating an I-539 and stamping the I-20 as approved, the adjudicator must retain in the receipt file a copy of the school's I-20, send the original school copy to the school within five days of adjudication, send the student's I-20 to the student within five days of adjudication, and mail a copy of the I-20 stamped "copy" to ACS within five days of adjudication. INS Headquarters issued another memorandum to the field three days later, on March 18, 2002, with the same instructions, although the memorandum does not require that a copy of the I-20 be retained in the service center's receipt file.
This was the first guidance on the processing of I-20s that INS Headquarters had issued in the last several years. These changes were simple to implement and immediately addressed the significant problem of I-20s not being returned to schools in a timely manner. The ease with which the change was implemented - via e-mail throughout the INS within days of when the controversy over Atta's and Alshehhi's change of status applications arose - further demonstrates that the part of the I-539 process that dealt with the I-20s had not been managed effectively prior to this crisis.
This new procedure places responsibility for completing the process with the adjudicator and provides some measure of accountability if the I-20s are not returned in a timely manner. However, to help the adjudicator complete this task, the INS should require address labels for ACS and for the school to be pre-printed and in the file or otherwise accessible to the adjudicator. This occurs currently with the student's address and allows the adjudicator to simply apply the label to the envelope containing the student's copy of the I-20. 145 In addition, INS Headquarters should clarify whether a copy of the I-20 is required to be kept in the service center's receipt file.
The INS's change in procedures did not address the return of school I-20s that are collected at the POEs when foreign students enter the country, which constitutes the overwhelming majority of I-20s. For this reason, we sought to determine what steps were being taken to expedite the return of these I-20s from ACS to the schools. The INS had determined that the POEs do not have the resources to copy the I-20s, mail the copies to ACS, and mail the originals to the schools. The INS therefore instructed the POEs to send to ACS daily via overnight mail all I-20s collected at the POE, and ACS has agreed to process and return the I-20s in less than the 30 days currently required by the contract. 146 To effect both the processing of the copies received from the service centers and the originals received from the POEs, we found that the INS has begun the process of modifying its contract with ACS. 147
In the INS Headquarters memorandum to the field dated March 18, 2002, the INS introduced processing changes not only for I-20s but also for the adjudication of I-539 applications. The memorandum directs that before adjudication, all I-539s must be checked against certain INS databases. As discussed previously, in the past, adjudication of I-539 change of status applications consisted primarily of a review of documents to ensure that the applicant timely filed the application and submitted the appropriate documents. No databases were required to be queried for possible derogatory information, such as a criminal history or departures since the application had been filed. The INS now requires that in every case the adjudicator must check the Nonimmigrant Information System (NIIS) and the Interagency Border Inspection System (IBIS) and that the file must reflect evidence that the check has occurred. Below we discuss each new requirement individually and our assessment of its implementation and impact on the adjudications process.
With respect to NIIS, adjudicators must now query NIIS for all I-539 and I-129 148 applications and include a copy of the printed record in the file or an indication in the file that NIIS was checked and no record was found. INS guidance also states that the I-94 admission number of the applicant must be entered into the "I-94 Number" field in CLAIMS prior to final adjudication. The guidance also states that if the NIIS record establishes that a departure from the United States occurred after the I-539 was filed, the I-539 application should be considered abandoned and must be denied. We believe that requiring the adjudicator to check NIIS before approving a change of status application is a prudent step. Whether this new requirement is effective, however, depends on the extent to which NIIS data is comprehensive, accurate, and timely. A prior OIG review in September 1997 revealed that NIIS suffers from several systemic problems that limit the effectiveness of the database. See "Immigration and Naturalization Service Monitoring of Nonimmigrant Overstays," Report Number I-97-08, September 1997. In particular, we found that information about departure records is not always entered into NIIS and that the information that is uploaded is not always accurate. We recently completed a follow-up review in which we found that the INS had not improved the collection of I-94 departure records and that NIIS data is still unreliable. See "Follow-up Report on INS Efforts to Improve the Control of Nonimmigrant Overstays," Report Number I-2002-006, April 2002. The requirement to check NIIS will only be effective if the NIIS data is accurate.
The INS's March 18 memorandum requires adjudicators to check all I-539 applications through IBIS before rendering a final decision. 149 The memorandum also requires adjudicators to include a notation on the application with the results of the IBIS check and the date the check was performed. At the time that the March 18 memorandum was issued, adjudicators in the TSC did not have access at their workstations to IBIS and were not trained on how to use it. In the last few weeks, however, adjudicators at the TSC have been provided with user accounts on IBIS and have received training on how to use it. 150
In addition to access to IBIS though, CAOs must have guidance about what to do with the information uncovered through the IBIS check. The March 18 memorandum states that "[I]n the event that the IBIS check results in a positive hit, the issue must be resolved prior to the case being approved" and "additional instructions on resolution of positive hits will follow under separate cover." As of May 10, 2002, the INS had not issued any further instructions on how to resolve the issue. I-539 application processing has been slowed down significantly since March 18 while the service centers were waiting for access to and training on IBIS for CAOs. The processing continues to be affected while they await guidance from INS Headquarters on how to resolve cases in which a "hit" appears in IBIS. In the interim, thousands of applications are continuing to be received, and backlogs are growing. 151 As discussed below, with regulatory changes that will require the INS to maintain a 30-day processing time for I-539s, it is crucial for the INS to resolve the IBIS issues expeditiously.
As noted previously, service center adjudicators did not routinely check NIIS, in part because there was no requirement or practical incentive to do so. In fact, the production pressure faced by CAOs created a disincentive to checking NIIS. Requiring CAOs to now make two copies of the I-20s, to mail the school copy of the I-20, to complete a NIIS check and put a printout in the file, and to check IBIS and put a printout in the file will add to the time it takes to process each application. While each check may only take a few minutes, provided CAOs have access to everything they need (such as address labels and IBIS), adjudicators are expected to process each application in 7 to 10 minutes, and a small increase in time on each application may have a significant impact in total. If the performance ratings for CAOs do not account for the added time to process applications, CAOs will continue to have a disincentive to conduct thorough searches and follow up on possible leads.
The Department of Justice and the INS have proposed and are considering additional proposals for regulatory changes in light of the events of September 11. Below we address some of the proposals that most directly affect the INS's interactions with foreign students. The proposed regulations that we discuss reflect an important shift in philosophy in the INS's treatment of nonimmigrant students and visitors. As a practical matter, foreign students who wanted to avoid the consular process for obtaining a student visa could enter the United States through some other means and not receive close scrutiny when filing an application for a change of status. The proposed regulations appear to be aimed at more closely assessing the intent of nonimmigrants and their purposes for entering the country and providing the INS with greater control over the ability of aliens to change their nonimmigrant status. The question remains whether this change in philosophy can be effectively implemented by inspectors at ports of entry and adjudicators at the service centers.
In the past, federal regulations specifically allowed a nonimmigrant to begin taking classes before acquiring student status from the INS. 152 A recent interim rule eliminates this provision. The new rule provides that nonimmigrants admitted in B-1 or B-2 status after the effective date of the rule will not be permitted to enroll in school unless the INS has notified the nonimmigrants that their change of status application has been approved.
The previous rule avoided penalizing students and schools for INS delays in adjudication of change of status applications. Because of those delays, adjudication in many cases only ratified a change of status that had already occurred. However, mandating that a change of status application be adjudicated before a student is permitted to begin class should be accompanied by a timely decision by the INS on the application. Recognizing this, the INS has stated its commitment to making timely decisions in 30 days or less.
While this proposed regulation has been in the drafting process for the last several months, the INS has made considerable efforts toward decreasing the processing times for I-539s to 30 days. I-539s have been designated one of the "priorities" for the INS in FY 2003. In January and February 2002, service centers were reporting processing times between 17 days and slightly more than 3 months.
Although the INS recently directed significant resources toward the I-539 program and has decreased processing times significantly, we are concerned that once this current "crisis" with respect to I-539s has subsided, the processing times may rise again. 153 The only way to avoid an increase in processing times is for the INS to ensure that sufficient numbers of adjudicators are available to adjudicate I-539 applications and that they are given the necessary access to IBIS, training, and guidance. We are concerned that the INS will not be able to achieve such a massive and sustained change in processing.
If the INS is not able to process change of status applications timely, students may miss the start of their desired course of study. The INS then has to either authorize the students to remain in the country until the next term, which may be longer than authorized by their original admission, or require students to depart when their original status expires (or risk being an overstay) and apply again from abroad through the Department of State. This could impose a financial hardship on some students or result in schools allowing students to start classes before they receive the I-20 notifying them the student has been approved. We believe the INS must consider how these students will be handled and what alternative arrangements will be made, rather than waiting for problems to arise and attempting to address them in an ad hoc fashion.
The proposed regulations, as we understand them, would also reduce the maximum admission period for visitors from one year to six months, would eliminate the 6-month minimum admission period for B-2 visitors that currently exists, would establish a default admission period of 30 days, and would set a 6-month maximum for all extensions of B visas. These proposed changes, although not explicitly related to nonimmigrants who want to become students in the United States, will likely affect those students and change of status applications that relate to those students. Before we discuss that impact, we first address the proposed change and its implementation in the INS.
The OIG was advised that while the proposed change sets 30 days as a default for tourists, it also gives immigration inspectors at POEs the discretion to authorize a stay that is "fair and reasonable" for a period up to a maximum of six months. When immigration officers have broad discretion and little guidance on how to exercise that discretion, policies vary considerably among POEs, service centers, and district offices. Failure to provide clear and detailed guidelines to assist inspectors in exercising their discretion will likely result in authorized lengths of stay that vary considerably among POEs and may induce "forum shopping" among nonimmigrants. In addition, if the purpose of the regulation is to ensure that the majority of visitors are admitted for 30 days or less, then inspectors must be given guidance about what statements of intent will be acceptable for admitting the nonimmigrant past the 30-day default. Without sufficient guidance, a vague statement of the purpose by the visitor could be deemed acceptable and the exception would swallow the rule.
The proposed change may decrease significantly the number of foreign students who enter with visitor visas and pursue an education on a part-time basis, since it is difficult to complete college classes or other schooling in 30-day increments. In addition, the proposed change could reduce the number of I-539s filed by nonimmigrants seeking to change their visitor status to that of students. It would be difficult for a person who entered the country with the intent of visiting temporarily to find a college or school, to apply to the school, and to be accepted during the 30-day period. A visitor in this situation would have to return home and apply for a student visa through the consular process to become a student.
Finally, according to the prefatory language to this proposed regulation, the INS implemented the 6-month minimum admission period several years ago to reduce the number of I-539s filed to obtain an extension of stay. The 30-day presumptive admission period will likely result in a significant increase in the number of I-539s filed for an extension of stay, thereby increasing the pressure on the INS to ensure that adequate resources are maintained for the I-539 program to keep processing times to a minimum.
As discussed in other parts of this report, when nonimmigrants enter the country, their purpose for being here is supposed to match the type of visa they hold. In other words, individuals who enter with the intent to become full-time students in the United States should obtain a student visa before coming to the United States. At the same time, the law allows nonimmigrants to come for one purpose, such as pleasure, then change their minds and decide to attend school. Also, individuals are allowed to come with the intent of visiting for the purpose of selecting a school or educational program.
According to the INS, it prefers that nonimmigrants acquire student status through the consular process in the person's home country. The Department of State is by design the principal route for aliens seeking nonimmigrant visas, and consular officials are better suited to scrutinize the alien's intentions than an inspector at a port of entry or a service center adjudicator.
The INS has therefore proposed requiring prospective students to demonstrate their intent to become students at the time they are admitted on B-1/B-2 visas, in order to be eligible to acquire a change of status. The effect of this proposed change would be to create a new visa category for nonimmigrants entering the country as prospective students. While this proposed change would assist the INS in identifying those visitors who are likely to later file change of status applications asking to be students, it is unlikely to substantially assist in the effort to keep out aliens who are intent on avoiding the screening process provided by the State Department. As we understand the proposed process, three scenarios are possible: (1) a foreign student is accepted to a school in the United States and obtains an M-1 or F-1 visa through a consulate outside the United States; (2) an alien enters the United States as a visitor but decides to become a student and files an application for a change of status; if the alien did not indicate upon entry that he or she might become a student, then the application would be denied; and (3) a foreign student who enters as a visitor indicates at the time of entry that he or she is a "prospective student"; if the student files a request for a change of status, it will likely be granted. With respect to this last scenario, if the goal is to ensure that most foreign students are screened by the State Department, then allowing a large number of individuals in this category would undermine this goal. 154
We are unable to evaluate this proposal fully because we do not know the intent behind the proposal. Whatever the intent behind the proposal, however, the INS should define "prospective student" to achieve the intent. The INS should also decide whether aliens must submit documentation in support of their assertion that they are prospective students, such as acceptance letters or offers of scholarships, or whether something less will suffice, such as a statement that they have been accepted to a school. 155 Guidelines must also be provided to inspectors regarding issues such as whether the entering alien must volunteer the information about prospective student status or whether the inspector is required to ask the question. Even more important, for this proposed process to work at all, there must be some system in place for ensuring that the inspector's determination that the alien meets the "prospective student" definition is consistently recorded on the I-94 and for ensuring that this information is provided to the I-539 adjudicators should the prospective student later file for a change of status. 156
We note that while INS officials stated that the INS prefers that nonimmigrants acquire student status by obtaining a student visa through the consular process, the law provides for several exceptions to the requirements that nonimmigrants present valid visas at each entry. For example, Canadian nationals and aliens residing permanently in Canada who are from countries deemed to have a "common nationality" with Canada are not required to present a visa when entering the United States. 157 According to the INS, 54 countries have a "common nationality" with Canada, including India and Pakistan. This exception means that aliens from Canada who will be students in the United States are not required to obtain or present student visas to enter the United States. 158
As we understand this proposed regulation, flight schools and other providers of flight instruction will be required to initiate a background check for all students who enroll in programs to learn how to fly a plane over 12,500 pounds and that instruction cannot begin until the background check has been completed. Currently, foreign students are issued I-20s after they have been accepted to a school but before instruction begins. Once foreign students have been issued I-20s, they are eligible to apply for a student visa or a change of status. If foreign students apply for a change of status before the background check is completed, then the INS must ensure that the results of the background check are obtained before the application is adjudicated.