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Op-Ed: Why Revising the K-1 Fiancé Visa and AOS Process Doesn’t Make Sense

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Tashfeen Malik, a Pakistani citizen, and her husband Syed Rizwan Farook, a naturalized United States Citizen, are known globally as the couple behind the San Bernardino shootings, which took the lives of 14 people and left 21 injured. Twenty-eight-year-old Syed Farook was identified as an environmental health services inspector employed by the San Bernardino County Department of Public Health. He was attending a holiday party at the Inland Regional Center where he worked. Reports confirm that a dispute occurred between Syed and an attendee of the party causing Syed to leave the party. He later returned with his wife Tashfeen dressed in tactical gear carrying assault weapons and semi-automatic pistols. Days after the attack, it became known that the assault was inspired but not directed by the Islamic State of Iraq and the Levant (ISIL), the terrorist group which claimed responsibility for coordinated attacks that occurred in Paris just last month. Through a radio message disbursed online, ISIL confirmed that the duo were indeed supporters of the group praising them for their efforts, but stopping short of taking credit for the attack. The FBI has since confirmed that the couple had been ‘radicalized’ for some time before the actual attack took place, though it is not clear how the couple became radicalized, how they rehearsed the attack, and whether the couple maintained ties to any other terrorist organizations. It is known that Syed and his wife Tashfeen had visited gun ranges in the Los Angeles area for target practice just days before the December 2nd assault at the Inland Regional Center, a social services facility located in San Bernardino, California where Syed was employed.

Investigations have revealed that Syed and Tashfeen met one another on a Muslim dating site a couple of years ago. The relationship flourished, and eventually Tashfeen Malik obtained and entered the United States legally on a K-1 fiancé visa. Last year, Tashfeen became a United States lawful permanent resident through her marriage to Syed, a naturalized citizen. In response to the recent terror attacks around the world and the Syrian refugee crisis, President Obama delivered a rare address to the nation from the Oval Office yesterday evening declaring the San Bernardino massacre an “act of terrorism designed to kill innocent people.”

In his address, President Obama outlined his administration’s four-tier strategy to defeat ISIL and discussed necessary measures that must be taken by Congress to bring about legislation that will protect our country from extremism and combat the war on terror. Such measures include the following:

  1. Congress should pass legislation prohibiting persons on the no-fly list from purchasing guns as a matter of national security;
  2. Congress should pass legislation to implement additional security checks for persons wishing to purchase powerful assault weapons;
  3. Congress should pass legislation implementing tougher screening processes for persons wishing to travel to the United States without a visa, focusing on those persons who have traveled to warzones; and
  4. Congress should authorize continued military force against terrorists;

In his address, President Barack Obama made a puzzling statement claiming that he would work with the Department of State and Homeland Security to review the visa waiver program, “under which the female terrorist in the San Bernardino originally came to this country.” This statement is puzzling because we know that the female terrorist, Tashfeen Malik, came to the United States through legal avenues and not the visa waiver program, which allows citizens of designated countries to travel to the United States without a visa. Pakistan, the female terrorist’s country of citizenship, and Saudi Arabia, her country of residency is notably absent from the designated countries eligible to participate in the Visa Waiver Program. The written transcript of President Obama’s address to the nation, released by the White House, recently revealed that the addition of the word ‘waiver’ was a mistake. Instead, the President meant to say that the visa program would be reviewed by the DOS and DHS, not the visa waiver program.

Why Revising the K-1 Fiancé Visa and AOS Process Doesn’t Make Sense

It is difficult to understand why the President would make such a proposal since his address makes clear that there is no evidence to suggest that the K-1 fiancé visa program and adjustment of status process is ineffective in terms of the security and screening processes applicants must be subjected to before receiving any immigration benefits. Additionally, there is no evidence to suggest that the actions of both killers were directed or masterminded by a terrorist organization abroad to rise to that level of concern.

The fiancé visa process and adjustment of status process is a burdensome, invasive, and notoriously complex immigration process to undergo. Firstly, the fiancé visa process is a 7 to 9-month process that requires the petitioner and applicant to undergo strict background checks. The fiancé visa petition itself also asks in depth questions in regards to the applicant’s criminal and immigration history. Secondly, in order to obtain a K-1 visa, the fiancé must present documented evidence, ensuring that that they have not violated immigration laws to make them inadmissible, and that they have not been convicted of significant crimes in any country. Such documents include providing a police clearance report from all countries where the applicant has resided since the age of 16, court and prison records if the applicant has been convicted of a crime, military records, etc. Thirdly, the fiancé visa applicant must attend a consular interview before a United States consular official that will determine whether the fiancé applicant can be admissible to the United States and whether a bona fide relationship truly exists between the US citizen and the fiancé. Fourthly, the fiancé’s admittance to the United States is not guaranteed. A CBP official at the port of entry is required to use their discretion when admitting any non-immigrant to the United States. Lastly, in order to ensure compliance with the fiancé visa, the fiancé is only granted a 90-day admission period. The fiancé and US citizen must marry within that period of time. If the fiancé does not marry the US citizen petitioner, the fiancé must depart the United States or face removal proceedings.

Only once the fiancé and US citizen have entered marriage, may the foreign spouse seek adjustment of status to permanent residence within the United States. Adjustment of status is a 4 to 6-month process which again requires the foreign spouse to undergo collection of biometrics, a background check, and an invasive interview that serves as an added security and fraud prevention mechanism. We believe that the fiancé visa and adjustment of status process is not the problem. In fact, Tashfeen Malik went through the process of immigrating to the United States exactly as she should have, through legal avenues. Unfortunately, little can be done to adequately protect our country from extremists especially when those extremists do not have any priors, have immigrated to the United States legally, do not have any mental health issues, and do not otherwise pose a threat to our national security. We must however protect ourselves by preventing guns from falling into the wrong hands, by preventing ISIL from recruiting US citizens into their cause, and by closely monitoring behavioral patterns that may lead to extremism.  Extremism is not a phenomenon unique to foreigners. US citizens are being targeted and recruited by international terrorist groups on the internet every single day. Our government must pass legislation to prevent such recruitment from taking place, before terrorists have an opportunity to rehearse an assault in the United states. The war on terror will not be solved by undercutting viable programs that are already notorious for their rigor. We hope that Congress will realize this before discouraging non-violent and law abiding individuals from immigrating to the United States.

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