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 EIGHT
RECOMMENDATIONS
Our review found that the INS functions without vital information about foreign students and nonimmigrants who have applied to change their status to that of students. Inspectors, adjudicators, and investigators are making critical decisions about aliens without having access to fundamental information that would affect their decisions. We also found that the INS has failed to adequately manage or pay sufficient attention to the foreign student program for many years. One of the factors inhibiting a coordinated approach to the foreign student program is that management of the program is fragmented. We found that responsibility for foreign students is divided among several different offices and programs in the INS and that no one person or office in the INS had a complete understanding of the requirements for foreign students and the processes through which they are permitted to enter and study in the United States. While we recognize that the INS is a large agency handling many different programs and missions, the result of this fragmentation is that there is not sufficient accountability for a program that admits approximately 500,000 aliens into the country every year.
Since September 11, 2001, the INS's need to focus attention on foreign students has changed dramatically. In the past, the INS's philosophy has strongly favored admitting foreign students and viewed them as relatively low risk. As a result, INS procedures allowed students to avoid screening processes and to remain in the country essentially unmonitored. Since September 11, however, there appears to have been a shift in philosophy regarding foreign students. Tighter regulatory controls have been proposed to make it more difficult to achieve student status and to scrutinize persons entering the country who might later attempt to become students. Also Congress has mandated that the INS implement its automated tracking system for students and schools, SEVIS, by January 1, 2003. And, since March 15, 2002, the INS has implemented procedural changes that will result in greater scrutiny of change of status applications for persons who want to become students. Despite these major changes affecting the foreign student program since September 11, however, the INS continues to operate the program without an overall plan for coordinating the various parts of the program.
In this chapter, we make numerous programmatic recommendations that we believe will improve the foreign student program and increase the INS's knowledge about foreign students. Before we discuss these recommendations, however, we set forth our recommendations concerning the INS's management of the foreign student program.
Our experience with the INS is that changes are sometimes made to fix one aspect of a program that is in crisis but that insufficient attention is paid to the consequences for other parts of the program. The fragmentation of management over the foreign student program contributes to that result. We believe that the INS should consider whether a foreign student program manager should be appointed to coordinate, and be accountable for, immigration issues affecting foreign students. We recognize that the INS has many other nonimmigrant categories in addition to students, and it may not be feasible to have a program manager for only foreign students. But the policy and practices affecting foreign students is a critical challenge facing the INS. Currently, those issues are handled by many different offices within the INS, resulting in inconsistent policies, lack of accountability for the program, and failure to carefully and systematically consider the impact of changes on the program.
The INS plans to implement SEVIS by the end of January 2003. In order for SEVIS to be successful, the INS should ensure that all schools are reviewed and approved before allowing the schools access to SEVIS. Failure to do so will, among other consequences, result in the new SEVIS system containing the same flawed, inaccurate data as its current system. Yet, the INS is woefully behind in accomplishing this mammoth task. Given the improbability that it will be completed by January 2003 (since the required proposed rule change has not yet been published), the INS should decide soon on an alternative plan, including determining how it will proceed in January 2003 if schools are not re-certified, a reasonable time schedule for re-certifying the schools, and an implementation plan for achieving the timetable. Regardless of the time pressure, we believe that the INS should not proceed without reviewing all of the schools currently authorized to issue I-20s.
Any re-certification plan must also resolve who will be responsible for conducting the re-certifications, provide adequate written guidelines on conducting the re-certifications, and provide adequate training to those responsible for performing the re-certifications. We believe that the re-certification process should include site visits and follow-up on questionable information submitted by schools.
Sufficient resources must be devoted to the re-certification process. We believe that the INS should establish a unit within each district office responsible for conducting on-site verifications of the INS-approved schools. Full-time schools officers will be needed, instead of personnel who have the responsibility as a collateral duty. These units could conduct the initial certifications (in connection with the transfer to SEVIS) and re-certifications that should be established at regular intervals thereafter. The INS must continue to monitor and review the schools, since schools lose accreditation, change their objectives, and sometimes engage in fraud. The INS should ensure that audits are conducted of approved schools to determine whether proper internal controls are in place and that data is being entered into SEVIS completely, accurately, and timely.
In addition, the INS should decide what office or division will be responsible for analyzing the data that is collected in SEVIS. To fully use SEVIS's capabilities, the INS needs to assign personnel and establish policies and procedures to take advantage of this analytic function. We believe full-time field positions in INS adjudications, intelligence, and investigations will also be necessary to monitor foreign student and school activities to identify those students who are no longer enrolled or who may be engaging in fraud. The information is only useful if it used by the INS.
To ensure that adequate personnel are available to devote to re-certifying and monitoring INS-approved schools and foreign students, we recommend that the INS establish fee-based positions funded out of the processing fee that will eventually be charged to foreign students.
The INS must also develop a plan for training both INS employees and school employees on how to use SEVIS. Having all of the schools certified and approved to use SEVIS will not be effective without adequate training. The INS should develop a timetable for implementing training and an implementation plan for carrying out the training.
SEVIS cannot work unless the necessary offices and personnel are connected to SEVIS, including service centers, POEs, district offices, and consular posts. Without these connections, information about foreign students and schools will be incomplete since changes of status, visa issuances, employment authorizations, reinstatements, and entries and exits will not be captured. The INS should devote the resources necessary to ensure that all offices are connected to and are able to use SEVIS as quickly as possible.
The INS is proposing regulations that would require visitors to have declared that they are prospective students at the time they entered the country in order to be eligible to change their status at a later date. For this regulation to be meaningful, the INS must first determine what the regulation is designed to achieve. If the objective is to reduce the potential for persons to avoid the State Department screening process by entering as a visitor and then changing to a status of longer duration, the INS must evaluate what requirements will accomplish that objective and, just as important, the logistics of the new process. The INS, working with the State Department, should also define "prospective student." The INS should decide whether aliens will be required to submit documentation in support of their assertion that they are a prospective student, such as acceptance letters or offers of scholarships, or whether something less will suffice, such as a statement that they have not yet applied to any schools but plan to after visiting several. It is equally important for the INS to ensure that change of status adjudicators in the service centers are aware of how to access the "prospective student" information recorded in NIIS.
The law as it currently stands allows visitors to attend classes on a part-time basis. The INS, however, does not currently collect information about these students or otherwise monitor them, nor does it plan to collect this information once SEVIS is implemented. Schools that offer courses on a part-time basis will not be included in SEVIS unless they also have full-time programs and want to be certified to accept foreign students. These include schools such as flight schools and trucking schools, which often do not provide the minimum number of course hours per week that would place the school under the INS's monitoring system for full-time students.
To increase the effectiveness of its monitoring of and collecting information about foreign students, part-time students should also be monitored. While we recognize that collecting information about every visitor who enrolls in a class or a short course of study would impose a significant burden on the INS, we believe that the INS should take steps to determine what information about these students and schools should be collected.
The INS must ensure that it devotes the resources necessary to maintain a fast processing time for I-539 change of status applications in order to avoid penalizing foreign students. Equally important, however, the INS must determine how it will handle nonimmigrants who have applied to become students but whose applications have not been adjudicated prior to the start of their classes. The INS should advise I-539 applicants for student status of the requirement that their applications must be completed prior to beginning school and also advise them of the procedure to be followed if the INS has not completed their application prior to the start of school. This procedure should also be communicated to the schools.
Currently, the INS has no formal procedure for schools to contact the service centers about pending I-539 applications. While some service centers designate an employee as a point of contact, it is a collateral duty and is not clearly defined. The INS should, as part of its overall management of foreign students, designate a person or an office within the service centers with the responsibility of communicating with schools and establish a procedure for accomplishing this objective.
The INS should develop clear and specific guidance for service center adjudicators on how information from IBIS checks will affect the adjudication decision, including information about previous overstays, immigration violations and criminal histories. The adjudicator should be informed about what steps to take if it is not clear that the applicant is the subject of the "hit" or "lookout" in IBIS.
Aliens who have applied for change of status or upon whom student status has been conferred are deemed to have abandoned their application or their student status when they leave the country. In other words, they are not permitted to return for the primary purpose of attending school without getting a student visa from a United States consulate. Yet, primary inspectors at the POEs currently have no way of determining whether aliens are improperly using a B-1/B-2 visa as a means of avoiding the State Department process, unless aliens volunteer to the inspectors that they have applied for or received a change of status.
Accordingly, the INS should ensure that primary inspectors have adequate information to verify the alien's statement of intent to the inspector. SEVIS should be designed so that the primary inspector will be notified as part of the routine check performed at the POEs that an alien has filed an I-539 to become a student or has already been conferred student status through the I-539 process. A secondary inspector can then evaluate whether the student is improperly attempting to enter the country using a B-1/B-2 visa or whether he or she is no longer attending school and is perhaps a legitimate visitor.
We also believe that the instructions to the I-539 application should inform applicants that if they leave the country while their application is pending, they will be considered to have abandoned the application. Likewise, the instructions should inform the applicants that once the new status is conferred, they lose that status if they leave the country and will be required to obtain student visas to re-enter.
The INS should restate its policy with respect to I-193 waivers and ensure that primary inspectors understand and consistently enforce the waiver policy and its limitations. Although currently all waivers must be approved by an assistant district director, the deputy district director or the district director, this policy could be relaxed in the future. Once this occurs, the Inspections Division in the district offices will again be responsible for issuing and deciding waivers and will need to be better informed about the circumstances under which these waivers are acceptable. Clear guidance should be re-issued to inspectors about what is considered an emergency that can result in the issuance of a waiver.
The INS's current performance standards for CAOs were prepared when changes in nonimmigrant classifications and extensions of stays were adjudicated based on a paper review designed to ensure that proper documentation had been properly filed. The INS is now requiring IBIS checks for all I-539 applications and several other applications, which suggests a shift toward more of a screening process for certain types of benefits rather than simply eligibility based on meeting documentary requirements. As a result, the INS should also change CAOs' performance standards to allow more time to review files and seek additional information. At a minimum, in light of the new processing requirements described in this report, we recommend that the INS reconsider the performance standards for CAOs and adjust the standards to accommodate the additional time that will be spent by CAOs implementing these new processing requirements.
We have noted in this report and in other reports problems with INS policies not being known, written, widely disseminated, or uniformly enforced. Although the INS's field manuals are a logical repository for policies and procedures, the Inspector's Field Manual and the Adjudicator's Field Manual are not comprehensive or complete. In addition, we found that adjudicators and inspectors are not made aware of changes to the manuals, if they are even aware of them and what they contain. Policies distributed via memorandum to the field often never reach line inspectors and adjudicators. As a result, field offices develop their own practices that are sometimes inconsistent with INS policy or the law.
The INS's systems for disseminating policy memoranda and changes and for ensuring that line employees become aware of and are required to enforce these policies needs improvement. We recommend that the INS expeditiously complete and update its field manuals. In addition, it should implement a more effective system for disseminating policies and procedures other than sending the documents to the head of a field office. Only if the INS has a system in place that ensures that policies and changes are received and understood can employees be held accountable for not following them.
In order to assist our tracking and monitoring of these recommendations, we set them out numerically in the Appendix at A-12.