DOS Cable on Benefits Preservation Sections of Patriot Act

R 020250Z NOV 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
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HQ USINS WASHDC

UNCLAS STATE 190946


VISAS INFORM CONSULS

E.O. 12958: N/A
TAGS: CVIS
SUBJECT: VISA PROVISIONS IN USA PATRIOT ACT SERIES: NO. 1

SUMMARY: On Friday, October 26 the President signed the
"Uniting and Strengthening America Act by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism" (USA PATRIOT) Act of 2001. The Patriot Act in
titles IV and X contains several provisions that will have
an impact on general immigration matters and visa issuance.
This message provides a general overview of the immigration
and visa-related sections, emphasizing several "saving
clauses" that can affect immediate visa activities and
which have short time frames. There are many other
provisions mentioned relating to information sharing,
interagency cooperation on border controls and criminal and
security visa ineligibilities. All sections relating to
visa activities are or will be the subject of septel in
more detail.

I. Savings clause requiring immediate attention:

1. Section 424 provides:

a. An alien will still be considered a "child" for 90 days
subsequent to an aliens 21st birthday, if the birthday was
in September 2001, and the alien is the beneficiary of a
petition or application filed on or before 9/11/01, for the
purpose of adjudicating the petition or application.

b. If the 21st birthday of the beneficiary of such a
petition or application is after September, 2001, the alien
will still be considered a "child" for 45 days following
that birthday for purposes of adjudicating the petition or
application. Note that children whose 21st birthdays occur
after 9/30/01 could benefit from this provision for years
to come.

c. This provision is not/not limited specifically to
immigrants, although as a practical matter that is where
its application is likely to arise.

d. Consular officers should begin to adjudicate such cases
immediately. Visas may not be issued, however, until posts
receive instructions on how to do so, as the software will
not accept an overage case for issuance.

II. Other "savings" type provisions:

2. These provisions are triggered by deaths, disabilities,
or loss of employment due to "a specified terrorist
activity", which is defined in Section 428 as one conducted
"against the Government or the people of the United States
on September 11, 2001. Although for shorthand purposes,
this cable refers generically to "terrorism", in all cases
it refers specifically and only to the events of 9/11/01.
It must also be noted that no action can be taken on these
provisions until the AG has established evidentiary
criteria, pursuant to section 426.

3. Section 422 extends various deadlines when an alien
applicant or visa recipient was adversely affected by
terrorist actions. Circumstances preventing the alien's
timely action are defined as office closures, mail or
courier service cessations or delays, airline flight
cessations or delays, and other closures, cessations, or
delays affecting case processing or travel.

a. Subsection (c) allows an immigrant visa number
issued to a diversity alien for fiscal 2001 to be used
between October 1, 2001, and April 1, 2002, if the alien
was prevented from using it during FY-01 as a direct result
of a specified terrorist activity. The Department
interprets this section to apply to persons who actually
received DV visas, but were unable to use them. Inasmuch
as the aliens covered by this provision already have
immigrant visas, consular officers need take no action at
this time.

b. Subsection (c) also provides that if a principal
diversity immigrant alien to whom an FY-01 immigrant visa
number had been issued died as a result of terrorist
activity, the aliens who were the spouse and children of
that alien on September 10, 2001, are. until June 30, 2002,
entitled to the provisions of INA 203(d) as if the
principal were not deceased and as if the spouse or childs
visa application had been adjudicated by September 30,
2001. Therefore they may still apply for and receive DV
visas until June 30, 2002. Note specificity of "spouse and
children on September 10,2001" which effectively prevents a
"child" on 9/10/01 from aging out prior to 6/30/02 in the
instance of the death of the principal. Inasmuch as the
legislation requires the Attorney General (AG) to establish
criteria for determining that a death occurred as the
result of terrorist activity, consular officers need take
no action until notified by the Department of such criteria
and the procedures for establishing eligibility.

c. Subsection (d) extends the validity until 12/31/01
of any immigrant visa that expires or expired prior to
December 31, 2001, if the alien was unable to effect entry
due to a terrorist activity. No consular action required.

d. Other subsections apply to aliens in the United
States who missed various deadlines due to terrorism.

4. Section 423 benefits surviving spouses and children of
citizens and lawful permanent residents who died as a
result of terrorism.

a. Subsection (a) entitles the surviving spouse
and/or child of a citizen deceased as a victim of terrorism
to retain immediate relative status by self-petitioning
within 2 years of the date of death under the terms of INA
204(a)(1)(A)(ii). With respect to such a child self-
petitioning, changes in age or marital status shall not be
considered if the petition is filed within 2 years of the
date of death. No immediate consular action pending AG
death criteria and petition filings.

b. Subsection (b) entitles aliens classified as 2nd
preference relatives on the basis of being named in a
petition according such status filed by an LPR who died as
a result of a terrorist act to retain that status without
filing a new petition. Any spouse, child, unmarried son or
daughter of such an LPR who is not a beneficiary of a 2nd
preference petition but was physically present in the
United States on September 11, 2001, may file a petition
for that status. No consular action pending determination
of death criteria by the AG and petition, if necessary.

c. Subsection (c) benefits survivors of employment
based immigrants who had applied for adjustment of status
prior to the death of the principal due to terrorism. No
action pending AG death criteria.

5. Section 421 authorizes Special Immigrant status for
aliens beneficiaries of petitions filed on or before
9/11/01 or an application for labor certification filed
prior to that date if the petition or application was
revoked or terminated due to terrorism which caused the
death or disability of the petitioner, applicant, or alien
beneficiary, and if the alien files a petition for status
under INA 203(b)(4). The petitions must have been for
immigrant status under INA 203(a) or (b) or for NIV
fiance(e) status under INA 101(a)(15)(K). INA 212(a)(4) is
made not applicable with respect to eligibility for a visa
or admissibility.

a. This provision also benefits the spouse or child of a
principal alien described above if accompanying or
following to join not later than 9/11/03. If the principal
alien is deceased due to the terrorist act, the fact of
that death is to be disregarded.

b. A grandparent also benefits from this provision if both
parents of the grandchild died as a result of terrorism and
if one of the parents was a U.S. citizen or national or an
LPR.

c. Immigrant visas will be made available in petition
filing date order but if the alien already had a priority
date based on the initial petition, that priority date may
be maintained.

d. As with other provisions above, this cannot be
implemented until AG has established evidentiary standards.

III. Other provisions:

6. Sections 401 and 402 authorize a tripling of personnel
on the Northern border to improve the security of that
heretofore largely-unmonitored area.

7. Section 403 amends INA 105 to require the AG and FBI to
provide extracts from the NCIC-III file to State and INS,
with periodic updates. Fingerprints are required to obtain
full contents of criminal records. Dept. is required to
promulgate final regulations within 4 months to ensure
effective measures for implementing this arrangement. Note
that access to the names in FBI records for all CLASS
checks was one of CA's top legislative priorities for this
year. Additionally, Dept and AG must develop and certify a
technology standard for confirming identity, within 2
years, which will be integrated into a cross-agency system.

8. Section 404 deletes a limitation on INS overtime pay
that was in the Justice Dept's appropriations act.

9. In section 405 the AG must report on the feasibility of
enhancing the FBI's Integrated Automated Fingerprint
Identification System (IAFIS) for visa purposes.

10. Section 411 amends INA 212(a)(3) to expand definitions
of terrorism and terrorist acts, and related topics.
Septel follows immediately elaborating on this.

11. Section 412 addresses mandatory detention of suspected
terrorists and related judicial issues.

12. Section 413 amends INA 222(f) to authorize SecState to
provide information in CLASS to a foreign government in
connection with multilateral cooperation against
terrorists.

13. Section 414 expresses the sense of Congress that the
AG should fully implement the integrated entry and exit
data system called for in IIRIRA and establish a task force
to effect this. Section 415 makes the Office of Homeland
Security a participant in the Task Force.

14. Section 416 requires the AG to expand use of SEVIS
(student and exchange visitor information system) to
schools countrywide and adds air flight, language training,
and vocational schools to the academic institutions which
are already subject to this system.

15. Section 417 requires closer monitoring of machine
readable passport requirement in INA 217 and advances the
date from October 1, 2007, to October 1, 2003, by which all
aliens entering under the VWP must present a machine
readable passport, subject to a waiver of such an advance
by the Secretary based upon a determination that the
aliens country is making sufficient progress toward
meeting VWP passport requirements.

16. Section 418 requires study of "consulate shopping"
and, if it exists, fixing it.

17. There are no sections 419 or 420.

18. Section 425 authorizes AG to grant administrative
relief to alien relatives of victims of terrorism if they
were lawfully in the United States on 9/10/01 and not
entitled to any other relief under these provisions.

19. Section 426 requires the AG, as noted above, to
establish evidentiary standards to determine whether the
death, disability or loss of employment was the result of
the specified terrorist activity. Regulations are not
required.

20. Section 427 prohibits any of these provisions to give
benefits to terrorists or a terrorists family members.

21. Section 428 defines "specified terrorist activity" as
being those against the United States on 9/11/01.

22. Section 1006 amends INA 212(a)(2) to include money
laundering as defined in U.S. criminal laws. The Secretary
is required to develop a watchlist of money laundering
individuals within 90 days. Septel will follow shortly.
However, consular officers who have immediate concerns
regarding a particular visa applicant should contact
CA/VO/L/A.

POWELL