February 12, 2003

The Honorable Michael Garcia
Acting Commissioner
Immigration and Naturalization Service
425 I Street, NW
Washington, D.C.  20536

RE: INS No. 2176-01

Dear Acting Commissioner Garcia:

The organizations listed below write to reiterate our concerns regarding the Immigration and Naturalization Service’s (INS) proposed rule, "Limiting the Period of Admission for B Nonimmigrant Aliens (67 Fed. Reg.1065 (April 12, 2002) RIN 1115-AG43, INS No. 2176-01).

We are very concerned this new proposed rule will negatively impact the travel and tourism industry, the real estate market in resort areas like Florida, and the millions of jobs and small businesses that represent 90% of this sector, while doing little to substantially address concerns about terrorism and visa overstayers. INS’ stated objective in proposing this rule are: 1) to prevent aliens from planning and executing acts of terrorism against the United States, and 2) to reduce the likelihood that an alien will establish permanent ties in the United States and remain in the country illegally. However, INS has not demonstrated a clear link between its proposed rule and how the proposal leads to achieving these objectives.  The rule neither provides new tools to gather intelligence on suspected terrorists nor creates new mechanisms to enforce limits on an individual’s stay.  Terrorists are unlikely to arrive without having an explanation of their intended stay that would satisfy an inspector, nor would they care about overstaying their visas.  We believe this rule will do little to enhance our security or help achieve our law enforcement aims.

The proposed rule generated more than 10,000 comments, many calling for maintaining the current rule or substantially altering the proposed rule. The proposed rule was also critiqued during a House Small Business Committee hearing on June 19, 2002. During the hearing, Chairman Manzullo ordered the INS to meet with business leaders.  However, neither that hearing nor this meeting clarified why changes to the existing rule were necessary, what security purpose they would serve, or how the Service would take into account the potential hundreds of millions of dollars this rule, if implemented, would cost our economy. Our specific concerns about the proposed rule follow.

• The proposed rule would deter international travel to the U.S. by creating uncertainty about the actual admission period.  Without any minimum period of admission, legitimate travelers cannot be guaranteed an adequate period of time for their visit.  Furthermore, the "case-by-case" inquiry at our ports-of-entry could result in massive delays and backlogs and/or the "default" period of 30 days being granted in a majority of cases (which would severely restrict longer-term visits). The uncertainty of the actual period of admission already has led to cancellations of planned travel to the U.S., and threatens to cost our nation hundreds of millions of dollars.
   
• The proposed rule would increase the likelihood that travelers would inadvertently overstay their admission.  While persons who are inclined to remain unlawfully would remain regardless of whether their admission period is 30 days or six months, the proposed rule would lead to additional inadvertent overstays as international visitors apply for extensions and remain in the U.S. for what they believe to be a legitimate request for an extension.  When applications are denied because they do not fit the narrow scope of extensions permitted under the proposed rule, travelers will have technically overstayed. This unintentional overstay will: create procedural problems for future re-entry into the U.S.; add to the uncertainty created by this proposed rule which will further deter international travel to the U.S.; and create additional, unnecessary paperwork burdens for the immigration service.
   
• The proposed rule would render the U.S. less attractive to potential investors.  Over 4.5 million international visitors in 1999 entered the U.S. to conduct business.  Many were prospective investors who, in the future, will seek to do business in other countries because the proposed rule will make it difficult for them to research and effectively plan their business investment, or predict with any degree of certainty the length of time critical personnel could remain in the U.S. For example, the proposed rule already is having a negative impact on the real estate market in many parts of the U.S. International investors are pulling out of transactions or putting their homes on the market because of the uncertainties created by the proposed rule.
   
• The proposed rule would negatively impact the residential real estate industry. Many B-2  pleasure visitors purchase homes in the U.S, especially in resort areas like Florida, in order to spend part of the year in this country.  While “seasonal or occasional” homeowners are included among the category of visitors entitled to an extension of stay, this extension is not automatic and is subject to the discretion and subjective decision of an immigration office. This uncertainty would dissuade many potential homebuyers from purchasing homes here, and may lead others to sell their existing homes and buy in countries perceived to be more welcoming to visitors.
   
• The proposed rule would negatively impact or deter Canadian visitors.  Canadians routinely have been allowed a standard 6-month admission period.  The proposed rule is silent on whether or not this change would affect Canadian admissions.   Many Canadian “snow birds” that own homes in the U.S. and winter here are also concerned for the real estate reasons mentioned above.
   
• The proposed rule would severely circumscribe the ability of multinational employers to use the B-1 for longer-term business trips.  The uncertainty surrounding the B visitors’ initial period of admission, together with the restrictions for extensions of stay, would render the B-1 useless for this legitimate purpose.  The increased time and cost required to obtain unnecessary nonimmigrant working visas to assign key personnel to the U.S. for brief periods of time would result in international companies opting not to do business in this country.

For these reasons we urge you to keep the current visa rules in place.  However, if the proposed rule moves forward, we urge you to make the following changes:

1. The INS must provide this specific guidance to foreign visitors making their travel plans. It is critical that such travelers know what is expected of them from INS inspectors. These travelers must have a high degree of certainty that their legitimate trips will not be arbitrarily shortened or denied.  INS must communicate clearly to all international travelers - prior to their departure - specifically what information will be needed from the traveler for their admission into the U.S.
    
2. Maintain a minimum period of admission so as not to deter international travel and tourism. Without a fixed minimum period of admission, international travelers will not be guaranteed adequate time for their proposed visit.  The rule provides no assurances that legitimate international visitors will receive the time they need to complete the trip or time to deal with unforeseen or uplanned events during the trip. No businessperson, vacationer, or family – U.S. or not – will spend thousands of dollars on an international trip with no idea of how long they can stay. The uncertainty of the variable admission period will drive international visitors to other countries with fixed minimum admission periods. The small businesses most affected by this proposed rule have indicated that the current six-month minimum admission period should be maintained.  However, if it must be reduced, a 90-day minimum admission would help provide travelers a fixed timeframe within which they could plan a trip, and would be consistent with the statutory admission period for Visa Waiver visitors.
    
3. Maintain current law with regard to extension of stay.  The proposed rule would severely limit the circumstances under which a traveler could apply to extend a stay beyond the period granted at entry.  Travelers would be ineligible for visa extensions, absent urgent, “unexpected events” unknown at entry, or limited exceptions for humanitarian reasons and persons who “owned” property in the U.S.  The limitation on extension eligibility would prohibit travelers from extending their stay for legitimate, if not “urgent” needs, and prevent longer-term visitors who may either rent or occupy property through third parties from extending their stay to make full use of their real estate. 

Because the current standards for granting an extension provide a high level of scrutiny, there is no reason to change them for the more restrictive standards in the proposed rule.  Under current law, visitors are asked to show that they have a residence abroad that they do not intend to abandon, that they were unable to accomplish the temporary purpose of the trip within the period granted, that they are not attempting to prolong their stay indefinitely and that they are capable of maintaining themselves financially for any period of stay requested.

4. Maintain the current maximum period of stay of one year. The proposed rule would reduce the “maximum” period of stay given at entry to six months from the current one year.  This provision would undermine the ability of certain family members of long-term nonimmigrants (such as workers, investors and intracompany transferees) to accompany their principal family member, a long-standing permissible use of the B-2 visa.  It also would limit the ability of potential foreign investors (many of whom invest in small business) to adequately explore business opportunities.
    
5. Provide a specific exemption for "seasonal or occasional" homeowners and renters. No investor is likely to purchase a home in the United States if they are not certain they will be able to spend more than thirty days here or that they will be able to extend their stay once here. We believe that homeowners should be treated differently from other visitors because homeowners are much more easily tracked while here in the Unites States because INS would know their permanent address. They would also seem to be far less likely to be a security threat because they are members of the community. It is also unlikely that they would overstay their visa since they would plan to return to the United States (and their “seasonal” home) the following year. INS should adopt special rules for these “seasonal or occasional” homeowners, including an automatic six-month admission period. INS should also extend this presumption to visitors with long-term leases that can be verified by INS. These visitors must be assured of a six-month admission period before they arrive in the United States so they can properly plan to spend part of the year here. The current INS proposal is likely to have negative consequences for this special group of visitors without advancing the stated purposes of the proposed regulation.

As stated above, we would strongly urge you to weigh the enormous benefits international visitation and investment bring to the U.S. and seriously consider modifying the rule along the lines detailed above.

Sincerely,

American Hotel & Lodging Association
American Immigration Lawyers Association
National Association of Home Builders
National Association of Realtors
Travel Industry Association of America
U.S. Chamber of Commerce