Project: Homeland Security - Law Firms New Immigration Challenges: Government Tracking Of Foreign Employees

Friday, July 1, 2005 - 01:00

In the wake of the terrorist attacks of September 11, 2001, the U.S. government placed renewed emphasis on initiatives to monitor the arrival and departure of foreign visitors to the United States. Though these monitoring programs had long been contemplated, Congress's enactment of the USA PATRIOT Act imposed strict deadlines on their implementation at U.S. ports of entry. In response, the Department of Homeland Security accelerated the development of the U.S. Visitor and Immigration Status Indication Technology (US-VISIT) system. US-VISIT is ultimately expected to absorb two other arrival-departure monitoring systems, the Student and Exchange Visitor Information System (SEVIS) for individuals participating in educational or exchange programs in the U.S., and the National Security Entry-Exit Registration System (NSEERS), which was established to track foreign visitors identified as potential security or law enforcement risks.

In June 2004, the Department of Homeland Security awarded a major contract to carry out the complex and challenging work of fully implementing the US-VISIT program, integrating more than a dozen databases the federal government uses to track travelers and terrorists, among other tasks, and planning the technical development of future border systems. This contract could be worth as much as $10 billion in the coming years. This article provides a brief overview of the US-VISIT system, and alerts corporate counsel to the requirements that their foreign employee workforce may be subject to under this and other new security initiatives.


US-VISIT is a "check-in/check-out" system that, when fully implemented, will record the entry and exit of foreign visitors to the United States, scan each visitor's fingerprint and photograph against national security and law enforcement databases, and maintain each visitor's U.S. travel history. The system is currently in operation at 115 U.S. airports, 15 seaports, at select pre-flight inspection stations abroad, and in the secondary inspection areas of the 50 busiest land ports of entry in the United States. By December 31, 2005, US-VISIT entry procedures will be implemented in the secondary inspection areas of all remaining U.S. land ports of entry. Exit procedures have been deployed on a rolling basis over the past year.

An entry-exit control system was originally mandated by Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), as an instrument to track visa overstayers and interdict terrorists. At the time of enactment, an entry-exit system was widely considered a costly and unnecessary approach to national security, and little actual development progress was made; subsequent legislation delayed the mandatory deadlines for implementation of the system, with the Data Management Improvement Act of 2000 ultimately requiring the border system to be in place at all U.S. land, sea and air ports by December 31, 2005. It was not until after the terrorist attacks of September 11, 2001, that development began in earnest, when Congress passed the USA PATRIOT Act, directing the system to be in place at air and sea ports by December 31, 2003 and imposing biometric and technical requirements.

Who Must Comply With US-VISIT?

Currently, US-VISIT is applicable to most nonimmigrant visa holders who are traveling to or from the United States through a port at which US-VISIT is in operation, as well as Visa Waiver Program (VWP) travelers. Starting on October 26, 2004, all VWP travelers were required to have machine-readable passports. The DHS has recently announced that, beginning October 26, 2005, VWP travelers will be required to present passports containing a digital photograph of the traveler's face, though only if the traveler's passport is issued on or after October 26, 2005. The new requirement is part of a larger initiative that will also require VWP participating countries to present plans for including integrated circuit chips, or "e-chips," in passports.

Several groups of travelers are exempt from the US-VISIT system. These include (1) U.S. citizens and lawful permanent residents; (2) travelers who are under the age of 14 or over the age of 79; (3) certain individuals who hold visas in categories for foreign diplomats, employees of international organizations, travelers in immediate transit through the United States, and NATO representatives and employees; (4) individuals or classes of foreign nationals who have been exempted by the Department of Homeland Security, the Department of State or the Central Intelligence Agency; (5) registrants in the INSPASS program, an advance registration system for frequent business visitors to the United States; and (6) individuals who are registered in the National Security Entry-Exit Registration System (NSEERS, often referred to as "special registration"), unless those individuals have received an NSEERS waiver. Most Canadian citizens are exempt from US-VISIT, unless they are entering the United States under a nonimmigrant visa. In addition, DHS has announced US-VISIT exemptions for Mexican citizens entering the United States using a Border Crossing Card when their stay is within 25 miles from the border (or 75 miles in the case of entry at an Arizona port) and the stay extends for no more than 30 days. Also exempt are certain officials of the Taipei Economic and Cultural Representative Office.

Entry And Exit Procedures

US-VISIT adds some new steps to the procedures that are undertaken when a foreign national seeks to enter the United States. All foreign visitors have their travel documents reviewed by an officer of the Customs and Border Patrol (CBP) bureau (formerly an Immigration and Naturalization Service officer); the officer will also interview the visitor about the purpose of his or her stay.

If the foreign national is traveling through a port at which US-VISIT entry procedures are in operation, he or she may be required to provide fingerprints and photographs. Using an inkless scanner, the CBP officer records prints of both index fingers, one after the other. The officer also takes a digital photograph of the visitor. The fingerprint and photographic data, along with information in the visitor's travel documents, are used to verify the visitor's identity and will be scanned against law enforcement and national security lookout lists. Based on the verification results, the visitor will be admitted to the United States or asked to undergo further verification. If data in the verification process indicate possible national security or law enforcement concerns, the visitor will be referred for additional screening.

US-VISIT exit procedures are currently in the pilot stage and are gradually being implemented at ports. If exit procedures are in operation at the traveler's chosen exit port, the traveler may be required to have his or her fingerprints, photographs and travel documents re-scanned so that departure information can be automatically reconciled with arrival data to determine whether the visitor has complied with the terms of his or her entry. DHS's departure pilot program is in the process of testing various methods of collecting this information, including self-service departure kiosks, where travelers can scan their travel documents and submit to biometrics collection, and hand-held scanners operated by DHS officials. Exit procedures may take place at stand-alone exit stations or at the airline departure gate. Currently, fifteen ports have been outfitted to comply with US-VISIT exit procedures. Foreign nationals planning travel to or from the United States should take steps to ascertain whether US-VISIT is in operation at their chosen port of entry or departure.

Fingerprint and photographic data collected via the US-VISIT system are compared with similar data collected under the State Department's biometric visa program. The program, which was in place at all U.S. consulates by October 26, 2004, now collects fingerprint and photographic information from all applicants for nonimmigrant visas; each applicant is issued visa documents that permit this data to be scanned and verified at U.S. ports of entry. Employers and foreign national employees should be aware that the biometric visa program requires all visa applicants to make personal appearances at U.S. consulates so that their information may be captured. The advent of the biometrics program signaled the end of the State Department's visa revalidation program, under which certain foreign nationals could have their visas revalidated by mail at DOS's Revalidation Unit in Washington, D.C.; the Unit was not equipped to conduct personal interviews or collect biometrics. While discussions about reconstituting the Revalidation Unit continue, at the moment nothing is imminent. Posts have adjusted by both an increase in resources and additional utilization of appointment systems. While delays continue to be reported, they have tapered off somewhat since late 2004.

Conclusion And Outlook

Prior to September 11, 2001, many immigration advocates had questioned whether there was sufficient political will to invest the requisite resources to implement such a massive entry-exit system. After September 11, many advocates have questioned whether such a massive database collection system will actually serve as a meaningful anti-terrorism tool. Ironically, as the initiative moves to full implementation, the questions of effectiveness, if not political will and resources, linger. Immigration-related processing for visas continues with significant delays, due in part to new background and security checks conducted by the Department of State and the U.S. Citizenship and Immigration Services under DHS. To the Government's credit, the implementation of the US-VISIT program has generally run smoothly, with only some scattered and expected delays as both travelers and border officers became accustomed to the new procedures. It remains to be seen, however, whether the program can be fully implemented without exacerbating delays for business travelers and tourists at ports-of-entry in the already over-stressed U.S. immigration system, at the same time that the massive resource allocation helps law enforcement to ensure national security. And it is unclear how future tracking systems, such as the anticipated Computer-Assisted Passenger Prescreening System (CAPPS), which will allow the U.S. government to use personal information to assign threat levels to all airline passengers, will affect travel.

As US-VISIT moves to full implementation, employers should expect and prepare their employees for additional delays at ports-of-entry. Foreign employees should be briefed on the entry-exit procedures, and organizations representing the employer community must be actively involved to ensure that US-VISIT is adequately funded and efficiently implemented.

Austin T. Fragomen, Jr., is a Partner of Fragomen, Del Rey, Bernsen & Loewy, LLP, a leading global corporate immigration law firm with 25 offices located worldwide.

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