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Beverly Hills, California, United States
Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Thursday, January 28, 2016

Illegal Immigration Is Not the Only Problem—Visas Are Too

Time (Op-Ed)
By Armand Cucciniello III
January 27, 2016

Our visa system ultimately boils down to two words: risk tolerance

When Americans think about immigration reform, many probably think of addressing the flow of illegal immigration from Mexico. But the terrorist attacks of Sept. 11, 2001 and the more recent tragedy in San Bernardino, Calif., show that addressing legal immigration is far more critical to our national security.

Having worked for the U.S. government in various capacities for the last eight years in Iraq and Pakistan, I understand all too well the shortcomings of how the government goes about screening, or vetting, a foreigner applying for an immigration visa. This flawed process needs serious reform if officials are to prevent any more of the ill-willed, radicalized and religiously insane from reaching America’s shores.

To visit the U.S., citizens of most countries—all but 38—must obtain visas issued by the State Department via American embassies and consulates around the globe. Emphasis on the vetting process implies that, under the current system, screening an applicant for unwanted behavior and beliefs is even possible. Otto von Bismark famously said “policy is the art of the possible”—and this sad reality is what I learned working at the U.S. embassy in Islamabad, Pakistan.

From 2010 to 2015 I managed a counter-narcotics- and counter-terrorism-related project that provides training to Pakistani military officers and civilians. In order to select participants, I was required to adhere to a U.S. law that requires the screening of foreigners in law enforcement and military jobs intending to participate in U.S.-funded training. The law, known as the Leahy Amendment, prohibits government agencies from providing assistance—military or financial—“to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.” The 1997 law specifically applies to law enforcement personnel or units of a foreign country that are potential recipients of U.S. assistance.

The vetting paperwork used to begin the screening process is rather nondescript. The simple three pages of basic questions require objective, straightforward answers: full name, date of birth, passport number, list of countries visited in the last 10 years, etc. The process then screens candidates to see whether they have a written and accessible record of human-rights abuses, crime, terrorism and other nefarious activities.

In no way does this process look for bad thoughts or bad ideas—which could show an applicant’s intent to adhere to radical ideology or commit crimes against the U.S. Currently the U.S. government screens for examples of misdeeds—not the potential for them.

The visa system ultimately boils down to two words: risk tolerance. Do we Americans accept an imperfect system whereby some rogues and/or Islamic extremists pass through the screening process? Or do we rigorously review our current immigration policy, understanding that our guiding principles and moral philosophies regarding who should be allowed into the U.S. are in desperate need of robust filters and screening mechanisms that may result in religious or ideological profiling?

In March 2015 Congress formed the bipartisan Task Force on Combating Terrorist and Foreign Fighter Travel to conduct a six-month review of the threat from individuals who leave home to join jihadist groups overseas, and to identify security gaps. Touted as one of the most extensive public examinations of U.S. government efforts to counter terrorist travel since the 2004 9/11 Commission report, the task force focused on foreign fighters who have travelled to Iraq and Syria who could return home and carry out terrorist activities. Last September the Task Force publicly released its final report. Although the report mentions “there may be additional opportunities to expand [visa] screening to identify potential extremists earlier in the process,” the task force did little to address the fundamental nature and national security concerns regarding the vetting process.

It is sad that the San Bernardino tragedy happened just two months after the task force completed its work.

On Jan. 20, the Senate was scheduled to agree to bring the bill “American Security Against Foreign Enemies Act of 2015,” or the American SAFE Act of 2015, to a vote, but it failed to do so. The Obama administration has already said it would veto the bill, which would increase U.S. government screening requirements “to ensure that each covered alien receives a background investigation before U.S. refugee admission.” There is one giant, glaring problem with this bill: It only applies to refugees (and a limited group at that).

Tashfeen Malik, one of the San Bernardino shooters, was not a refugee. Therefore, provisions required in this bill would not have applied to her case; and will not necessarily apply to foreign nationals like her who are seeking an immigration visa. In other words: Even should this act pass, those like Malik who have not yet made it to America’s shores just might may make it through.

Congress and the Obama administration should act swiftly to implement recommendations provided within the Congressional Task Force’s report. The U.S. government should also consider a top-to-bottom review of the visa screening process in place at each and every U.S. embassy for all visa applicants and not simply refugee seekers or K-1 immigration visa applicants. Congress must also make it a point to understand unique concerns like budget and space constraints faced by Department of Homeland Security and Department of State consular officers at each post.

We cannot expect the current visa application screening system to result in preventing all anti-American sympathizers from reaching our shores. Immigration policy and visa application processes are very much iterative in nature: with each gap and fissure, however tragic, we discover an area where the system can be improved.

In 2014, the State Department granted nearly 10 million visas to foreigners seeking temporary entry into America. A terrorist slipping through the cracks, as San Bernardino shooter Tashfeen Malik did, means the current process is still not effective enough.

For more information, go to:  www.beverlyhillsimmigrationlaw.com

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