INS Proposes New Restrictions on Visitor and Student Visas, "Surrender" Requirement for Immigrants with Final Removal Orders

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

INS PROPOSES NEW RESTRICTIONS ON VISITOR AND STUDENT VISAS, "SURRENDER" REQUIREMENT FOR IMMIGRANTS WITH FINAL REMOVAL ORDERS
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

The Immigration and Naturalization Service has announced a number of new measures to restrict visitors and students and to require that immigrants with administratively final orders of removal "surrender" themselves to the INS. According to an Apr. 8, 2002, news release, the new measures, contained in three rules, are intended "to enhance homeland security and strengthen and control immigration."

The measures include an interim rule, effective immediately upon publication of the rule, prohibiting nonimmigrant business (B-1) and tourist (B-2) visitors from attending school in the United States before they receive approval of requests to change to student status. The INS is also issuing a proposed rule that would reduce the initial admission periods for B-1 and B-2 visitors, limit the conditions for which extensions of their stay can be granted and the maximum length of such extensions, and prohibit them from changing to student status unless they had stated an intention to study at the time they were admitted as visitors. Finally, a second proposed rule would require immigrants with orders of removal to surrender themselves to the INS within 30 days of when their orders became administratively final. Individuals who fail to do so would become ineligible for discretionary relief for a period of ten years. At this issue's publication deadline, the rules had not yet been published in the Federal Register.

According to the INS, the proposed surrender rule is substantially the same as a proposed rule that was published on Sept. 4, 1998 (see "Rule Would Require Aliens Ordered Removed to Surrender," Immigrants' Rights Update, Sept. 16, 1998, p. 2). That rule would have required immigrants to turn themselves in to INS after their removal orders became administratively final, whether because they waived appeal of, or failed to timely file an appeal from, a decision of an immigration judge, or because the Board of Immigration Appeals ordered them removed. The previously published rule required individuals to turn themselves in within 10 days of their orders becoming final, but the new proposed rule apparently will require surrender within 30 days. Surrender was to be accomplished by appearing in person at the INS district office having jurisdiction over the place where the IJ completed the removal proceeding. Individuals who fail to surrender would become ineligible for discretionary relief, including asylum, waivers, adjustment of status, cancellation of removal, voluntary departure, change of nonimmigrant status, and registry, for a period of 10 years. The INS explains that the new rule differs from the previously published rule because the new rule will apply to individuals currently in removal proceedings, as well as to those placed in removal proceedings after a final rule takes effect.

According to the INS, the proposed rule regarding nonimmigrant visitors will replace the current minimum six-month admission period for B-2 visitors for pleasure with "a period of time that is fair and reasonable for the completion of the purpose of the visit." At the time of admission, INS inspectors are to determine an appropriate length of stay based on the nature and purpose of the visit. In cases where inspectors cannot determine the amount of time that is required, they are to grant a 30-day period of stay. For all B visitors, the proposed rule would reduce the maximum initial period of admission from one year to six months.

The proposed rule would also restrict extensions of B visitor status to cases where extension is sought because of "unexpected or compelling humanitarian reasons." The INS explains that such reasons may include medical treatment or a delay in the conclusion of a business matter. The rule would reduce the maximum extension that can be granted from one year to six months.

The proposed rule would also prohibit visitors from changing to F (academic) or M (vocational) student status unless they clearly stated their intention to study in the United States when they initially applied for admission as visitors. The INS explains that the agency recognizes that some prospective students may need to come to the United States as visitors for pleasure in order to tour campuses or attend interviews. The proposed rule will require immigration inspectors to note that the nonimmigrant visitor is a prospective student and make a notation to this effect on the individual's Form I-94 (Arrival/Departure Record).

The INS also explains that the interim rule, which prohibits visitors from starting studies until they have changed student status, will not apply to visitors currently in the United States, since they may have already started a course of study in reliance on existing rules.

The interim rule will take effect once it is published in the Federal Register. The proposed rules are subject to public comment and will not take effect until the agency publishes an interim or final rule. Fact sheets and statements about the new measures are available on the INS website, www.ins.usdoj.gov.