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AILA Practice Advisory on the US-VISIT Program January 8, 2004
AILA Practice Advisory on the US-VISIT Program By the AILA Border Issues Committee
DHS currently is developing the United States Visitor and Immigrant Status Indicator Technology program (US-VISIT) to function as the new automated entry/exit system. Through the use of US-VISIT, border inspectors will record the entry and exit of nonimmigrant visa holders traveling to the United States. On January 5th, the first phase of US-VISIT became operational at 14 seaports and 115 airports across the country. Each nonimmigrant visa holder entering at one of these ports will undergo the standard inspection process and simultaneously will be processed through the US-VISIT system, termed “visited” by DHS officials. BWI airport will serve as the pilot site for testing the US-VISIT exit procedures. Expansion of the program at airports and seaports is expected to continue throughout 2004. Unless Congress acts to delay the implementation deadlines, DHS will be required by law to expand the entry/exit program to the top 50 high traffic land border ports by December 31, 2004, and the remaining ports of entry by December 31, 2005. In conjunction with US-VISIT, all consular posts abroad will be required to issue biometric visas by October 26, 2004. Two digital index finger prints and a photo will be taken of visa applicants, and their information will be checked against the Automated Biometric Identification System (IDENT) database. Recently, in Vancouver, IDENT clearance was taking 3 days. The lengthy timeframe is due in part to database transmission lines. This advisory briefly outlines who will and will not be affected by US-VIIST, and how US-VISIT will allegedly be implemented at air and seaports, and raises other issues practitioners should consider when advising their clients about US-VISIT. Who is Affected by US- VISIT? Visa holders: According to DHS, US-VISIT will apply only to nonimmigrant visa holders. The Data Management Improvement Act of 2000 (DMIA) (P.L. 106-215) prohibits immigration authorities from introducing new entry or exit documentary requirements on any visitors to the country for the purpose of collecting data for US-VISIT. Under current law and regulations, Canadians not required to have a visa upon entering the United States and foreign nationals entering the United States pursuant to the Visa Waiver Program (VWP) will not be included in US-VISIT. Conversely, Canadians and Visa Waiver country applicants for admission to the U.S. in a status requiring a visa will be required to enroll in US-VISIT. Exempt categories: The following visa categories are exempt from enrollment in US-VISIT: A-1, A-2, C-3 (except for attendants, servants or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6. However, if an individual entering the U.S. in an exempt status is no longer in such status on his or her date of departure, he or she would be subject to the departure requirements. Children under the age of 14 and persons over the age of 79 on the date of admission are exempt from US-VISIT, as are classes of aliens the Secretary of Homeland Security and the Secretary of State jointly exempt. The Secretary of Homeland Security, the Secretary of State or the Director of Central Intelligence may also exempt an individual alien. Visa Waiver Program Participants: Although foreign nationals entering the United States pursuant to the VWP will not be enrolled in US-VISIT at this time, practitioners should be aware that additional requirements on the VWP could make it harder to use. A congressional mandate in the USA PATRIOT Act (P.L. 107-56) requires Visa Waiver countries to issue tamper-proof machine-readable passports (MRPs) that include biometric identifiers by October 26, 2004. Individuals without an MRP will have to apply for a visa at a U.S. consulate and will be subject to US- VISIT enrollment at the post. Their admission will then be recorded under US-VISIT procedures at the port of entry. Mexican Laser Visas: Preliminary discussions indicate that DHS officials have not developed a final policy for the treatment of laser visa holders under US-VISIT. DHS may consider enrolling laser visa holders in US-VISIT only if the applicant requires an I-94. (e.g. if the laser visa holder is staying in the U.S. for longer than 72 hours or going beyond the 25-mile limit from the border or the 75-mile limit in Arizona.) Other options include: checking the biometric laser visa database maintained by the Department of State against IDENT and then transferring the information into the US-VISIT database; or exempting all Mexican laser visa holders from the enrollment process. LPRs & Citizens: At this time, Legal Permanent Residents (LPRs) and U.S. citizens are exempt from enrollment in US-VISIT. How Does My Client Get Enrolled Under US-VISIT? There are two ways visa holders will get enrolled into US-VISIT—through a consular post or at a port of entry. Enrollment at the Consular Post: Enrollment at the consular post will occur during the processing of the biometric visa. A digital photo and inkless fingerprints of both index fingers will be taken and the biometric information will be checked through and recorded in the IDENT biometric database at the time of enrollment. Currently, only certain consular posts are issuing biometric visas. However, the State Department is required to start issuing these visas at all 211 consular posts by October 26, 2004. Enrollment at the Ports of Entry: US-VISIT will be implemented in phases at our nation’s ports. During the first implementation phase of US-VISIT, nonimmigrant visa holders will be enrolled in US- VISIT only if they enter the United States through an air or seaport that has US-VISIT capability. As of January 5, 2004, US-VISIT will only process entries of visa holders at 115 airports and 14 seaports nationwide [See the attached sheet for a list of these airports and seaports]. At these air and seaports, US-VISIT will be incorporated into the primary inspections booth. The Consular Consolidated Database (CCD) is also available at primary inspections so that visual comparisons with the visa page are possible. The first time DHS enrolls a traveler into US-VISIT at a port, the individual’s travel documents will be scanned; a digital photo and inkless fingerprints of both index fingers will be taken and the individual’s name with be checked against the Interagency Border Inspection Service (IBIS) database and the wants and warrants section of the National Crime Information Center (NCIC) database. Note that both of these checks are text (not biometric) checks. IBIS does contain certain terrorist watch list information from the TIPOFF database maintained by the Department of State. The enrollment process reportedly takes about 10-15 seconds. The primary reason for the speed of this process is that the IDENT biometric database check occurs after the visa holder is admitted to the United States. If DHS inspectors ran the IDENT checks during the admissions process, it would add approximately five minutes to every US-VISIT enrollment. Once the visa holder is enrolled in US-VISIT, his or her arrival information will reportedly be stored in the IDNET biometric database. Subsequent Entries to the U.S.: After a visa holder is enrolled in US-VISIT, he or she will still have to provide fingerprints and have a digital photograph taken upon each entry to the U.S. Ideally, in the future, visa holders will be able to swipe their biometric passport or visa, provide index fingerprints and photo, and be checked for identity against the US-VISIT database. Again, even this procedure will not provide for a rapid biometric check against any criminal or other biometric watch list database. How Does My Client Exit the U.S. Under US-VISIT? Visa holders will be required to document their departure from the United States with US-VISIT only if they depart the United States through an air or seaport that has US-VISIT exit capability. As of January 5, 2004, US-VISIT will have exit capability at the Baltimore-Washington airport in Baltimore, Maryland and at the Miami seaport. However, DHS plans to expand the US-VISIT exit capabilities to other ports of entry throughout 2004. The exit stations for US-VISIT are self-service kiosks that closely resemble automated teller machines (ATMs). DHS has indicated that the kiosks will be located within the secure area of the air and seaports; it has also stated that attendants will be assigned to monitor the kiosk area and offer assistance. In addition, the department has announced that during 2004, it will test various exit methods, possibly including a hand-held device that will permit DHS personnel to register the departure of nonimmigrant visa holders. It is important that practitioners convey to their clients that DHS will consider exit registration mandatory for visa holders who depart from an air or seaport with US- VISIT exit capability. According to DHS, entry-exit information is constantly updated, and if a visitor overstays his or her allotted time, US- VISIT will record the failure to depart. Despite references to a grace period regarding exit requirements, AILA has yet to confirm whether such grace period exists, or whether failure to exit properly will result in a case-by-case review similar to the review permitted under Special Registration. How Will DHS Handle NSEERS Once US- VISIT is Implemented? Special Registration (NSEERS registration) at the ports of entry will continue even after the launch of US- VISIT in January. The registration for NSEERS and enrollment for US- VISIT will continue to be separate processes until US- VISIT incorporates NSEERS. (Such incorporation is not anticipated until US- VISIT is fully developed.) Persons subjected to call-in or POE Special Registration still must register
their departure with NSEERS and must leave the U.S. through a designated port of
departure. According to preliminary reports, if US- VISIT has an
operational exit kiosk at this port and an individual has already registered his
or her departure at that airport via NSEERS, the visa holder is not obligated to
document his departure with US- VISIT. Thus, someone subject to NSEERS
departure control will not need to register departure via both methodologies.
However, AILA has not received written confirmation of this procedure, and
practitioners may want to advise their clients of the ambiguity regarding the
overlapping exit requirements. Remember that those who fail to comply with
departure control rules under NSEERS may be subject to inadmissibility under INA
section 212(a)(3)(A)(ii). The State Department recently published notices in the Federal Register delegating to two individuals within the State Department the authority to exempt persons from Special Registration if an exception is in the national interest and will not compromise national security interests. (See 68 FR 75018, 12/29/03 and 68 FR 75019, 12/29/03). AILA has yet to see how this announcement will affect such requests for exemption made during the visa application process at a consular post. A Brief History of US- VISIT US- VISIT is DHS’s name for the entry/exit system mandated by Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208) (IIRAIRA). As originally set forth in Section 110, the entry/exit system would have applied to all non-U.S. citizens who enter or exit the United States at any port of entry. The DMIA, however, subsequently altered this system and merged the entry-exit system with a searchable centralized database, prohibited INS from imposing entry or exit documentary requirements for purposes of the entry-exit system, and staggered the entry-exit implementation deadlines into three phases. In 2001, Congress, in the USA PATRIOT Act, mandated that the entry-exit system include the use of biometric technology and tamper-resistant documents readable at all ports of entry. Later that year, with the passage of the Enhanced Border Security and Visa Entry Reform Act (P.L. 107-173), Congress finally addressed the entry-exit system as a program that balances security with the economic realities of our busy ports of entry by requiring the use of technologies that facilitate the lawful and efficient cross-border movement of commerce and persons without compromising the safety and security of the United States. Interestingly, in 1998 a Senate Judiciary Committee Report (No. 105-197) found that, “implementing an automated entry-exit control system has absolutely nothing to do with countering drug trafficking, with halting the entry of terrorists into the United States, or with any other illegal activity at or near the borders. An automated entry-exit control system will at best provide information only on those who have overstayed their visas.” What to Do For Your Clients
What We Still Do Not Know Despite the DHS’s public outreach on behalf of US- VISIT, there are still essential details that are unknown. Be sure to check InfoNet for updates regarding new information on the following:
For DHS Updates on US- VISIT AILA Border Security Issues Committee Members AILA National Staff Contact
Airports Agana, Guam (Agana International Airport)
Galveston, Texas Ports Equipped with US- VISIT Exit Capability as of 1/5/2004 Airports Baltimore, Maryland (automated kiosks)
Miami, Florida (automated kiosks) 38BR3004 1-8-03
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