US immigration law makes a variety of security related concerns grounds for inadmissibility. Over the past ten years, there have been a number of changes in this area, responding to changing world conditions. Indeed, given the tragic events of last week, more changes in this area should be expected in the near future.
If a consular officer or INS inspector either knows or has a reasonable basis for believing that the applicant for admission is seeking to enter the US to engage in espionage or sabotage, or to obtain for export goods or technology that have been identified as not for export, the applicant is to be denied admission. One of the areas in which this ground is a particular concern is that of foreign students coming to the US to study in a field listed on the State Department’s Technology Alert List. Visa applicants who seek to participate in such fields face close scrutiny, and in most cases must obtain a security advisory opinion from the State Department. Such opinions are required for nationals of countries that sponsor terrorism. There are no waivers for this ground of inadmissibility except for cases dealing with export control issues.
Foreign nationals are also inadmissible for terrorist activities. Specifically, a person is inadmissible if they have engaged in terrorist activities, if a consular officer or INS inspector knows or has reason to believe that the person is currently or will in the future engage in terrorist activities, if the person has incited terrorist activity, or if the person is a representative or member of a terrorist organization designated by the State Department.
Under the current rules for designating a terrorist organization, three elements must be present. The organization must be based in a foreign country, it must engage in terrorist activity, which is defined to include hijacking and sabotage, kidnapping if done to force government action, assassination, use of biological, chemical or nuclear devices, or an explosive or firearm with the intent to endanger people or property, and threatening or conspiring to do any of these things, and the organization must threaten US security. Even if it has been years since the organization engaged in terrorist activities, it may still be considered a terrorist organization if it retains the capacity and inclination to engage in terrorism.
In the past, the State Department has instructed consular officers to “err on the side of caution” in dealing with applications that might be denied on terrorist grounds. Whether this remains the case in the future, however, remains to be seen.
If the State Department determines that a person’s entry to the US would have adverse consequences on US foreign policy, the person is inadmissible. There are two exceptions to this rule. First, the ground of inadmissibility does not apply to officials of a foreign government simply because of statements they may have made. In these cases, the person is admissible only if their admission would create a “clear negative foreign policy impact”. Second, a person cannot be deemed inadmissible because of past statements that would be legal in the US unless their entry would compromise competing US foreign policy interests.
Membership in a communist or other totalitarian party makes a person inadmissible, but there are a number of exceptions to this rule. The primary exception eliminates membership that was involuntary, while under age 16, automatic by operation of law or necessary to obtain a job from the basis for inadmissibility. Another exception applies to people who have renounced their membership in the party at least two years prior to the visa application admissible if it is determined that they are not a threat to the US. If the person’s country is still controlled by a communist or totalitarian government, the renunciation must have occurred at least five years prior to the visa application. Finally, people who are close family members of US citizens and permanent residents are eligible for a waiver of this ground of inadmissibility.
The last security related ground of inadmissibility applies to people who were participants in Nazi era persecutions and those who have engaged in genocide.