Tag Archives: CBP

CBP to stop stamping I-20 forms.

NAFSA, the association of international educators, has released information that it received guidance from CBP that CBP will no longer stamp the I-20 Form upon the foreign student/visitor’s arrival in the U.S.

This change in current procedure will likely cause I-20 holders problems with certain State agencies, since most State agencies’ procedures still require that I-20 Forms be endorsed with an original stamp from CBP, issued at the Port-of-Entry.

CBP is aware of this issue and is taking active steps to coordinate with various affected State agencies.

CBP plans to eliminate I-94

CBP cites two reasons for eliminating Form I-94. Firstly, CBP already has access to the data gathered on Form I-94. Aliens provide the information when submitting an application for a nonimmigrant visa at a U.S. consulate. In addition, information is provided to CBP through the Advance Passenger Information System (APIS). APIS is a web-based system used by commercial carriers and the private aviation community to electronically provide required information to CBP such as, inter alia, notices of arrival and/or departure and traveler manifests (crew and passenger).

Secondly, CBP expects to save time and money through the elimination of Form I-94. CBP has calculated the cost and manpower required to print, store, distribute, gather, and enter data specified on the form. CBP reports that about 30 seconds of officer time per entry relates to the paper form, which results in annualized costs to CBP amounting to approximately $19 million for associated staffing resources. In addition, CBP Office of Field Operations (OFO) pays to mail Forms I-94 collected by the airlines to a contractor, which is paid $17 million per year to enter the departure data.

CBP’s plans call for issuing an admission stamp in the passports of nonimmigrant aliens. The stamp will include a handwritten notation indicating the status and authorized period of stay, similar to procedures now utilized for travelers under the Visa Waiver Program.  CBP verbally agreed to consider creating a web portal to allow nonimmigrant aliens to verify their status as stored in its electronic format. The web portal would allow nonimmigrant aliens the option to print an admission record receipt.

Many of the petition and application forms promulgated by the U.S. Citizenship and Immigration Services (USCIS) to request immigration benefits, such as Forms I-129, I-130, I-539, etc., ask for a Form I-94 number. CBP has indicated that it is in communication with USCIS about its plans to eliminate Form I-94. There are no known plans, however, for USCIS to begin replacing existing forms to reflect this change. It also is unclear whether USCIS will continue to issue Form I-797, Notice of Action, approving an application for change or extension of status with a Form I-94, and if so, whether the form number will be connected to the actual record of admission.

Some “DEFERRED ACTION” Pointers

1. In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE. Only individuals in detention will go through ICE to make a deferred action request.

2. Information provided as part of the deferred action request process is protected from disclosure

to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS’ November 2011 NTA memo.

3. If a departure from the U.S. was due to removal, voluntary departure, etc., the absence was not brief, casual and innocent and would interupt the continuous residence that is required since June 15, 2007. Short absences before August 15, 2012, reasonably calculated to accomplish the purpose of the trip, would not be interuptive.

4. Only people who are currently not in status and were not in any lawful status on June 15, 2012 are eligible.

5. A “significant misdemeanor” is one for which the individual was sentenced to more than 90 days, or a conviction for domestic violence, sexual abuse, burglary, firearm violation, drug distribution or trafficking (but not possession), or DUI, regardless of the sentence.

6. Minor traffic offenses, such as driving without a license, are not considered misdemeanors that count toward the “3 or more” standard.

7. The Form I-765 will be required, along with another form that will be made available on August 14 or 15. Total fees, including biometics, will be $465. Fee waivers will not be available, but fee exemptions will be permitted in very limited circumstances, and must be requested and approved before submitting a deferred action application without a fee.

8. Whether a person has reached age 15, and whether the requestor meets the education requirements, will be determined as of the date the request for deferred action is filed, NOT the June 15, 2012 date.

Talking Points on “DREAM Act”

THE DREAM ACT: A CENTRAL ELEMENT OF REFORM
The Development, Relief and Education of Alien Minors (DREAM) Act (S. 729/H.R. 1751) is a bipartisan bill that would provide a conditional six-year pathway to legal permanent residence for certain unauthorized youth who, as children, were brought to the U.S. if they: complete high school; demonstrate good moral character; and complete at least two years of higher education or serve for at least two years in the U.S. military. The bill also would also repeal section 505 of the Illegal Immigrant Reform and Immigrant Reconciliation Act of 1996 (IIRIRA) that prohibits states from providing any higher education benefit based on residency to unauthorized immigrants unless they provide the same benefit to U.S. citizens in the same circumstances, regardless of their residence.


THE DREAM ACT CAN STRENGTHEN THE U.S. ECONOMY

The students who would benefit under the DREAM Act have been raised and educated in the U.S. and by allowing them to pursue a higher education, we are investing in the future of our country and our economy.
•  Communities, states, and nation would reap significant benefits from the DREAM Act. A RAND study showed that a 30-year-old Mexican immigrant woman who graduated from college will pay $5,300 more in taxes and cost $3,900 less in government expenses each year than if she had dropped out of high school. This amounts to an annual fiscal benefit of over $9,000 every year, money that can be used to pay for the education of others.
•  DREAM Act beneficiaries will make up part of the educated workforce needed to help the U.S. compete in the global economy. In our globalized world, their multilingual and bicultural skills, and contributions are more important than ever to the success and global competitiveness of the United States.

CURRENT LAW PROVIDES NO WAY FOR THESE CHILDREN TO ACHIEVE LEGAL STATUS

•  Due to the undocumented status of their parents and other family members, they have no available avenues for family-based visa sponsorship.
•  Few employers would or could sponsor them for a work visa due to their age and lack of work experience. Even if an employer was willing to sponsor them, the process takes precious years that these children cannot afford to waste.

STATES SHOULD HAVE THE RIGHT TO DETERMINE WHO QUALIFIES FOR IN-STATE TUITION

•  States are required to invest in elementary and secondary education for undocumented children, but can’t collect on the return. However, when states are ready to earn a return on their investment through a highly educated workforce, they are barred from offering in-state tuition to these children. The states (and their taxpayers) have the right to earn this return.
•  States should have the authority to determine how they allocate their resources. Such an educational investment pays dividends for the states by reducing the dropout rate, leading to substantial savings in criminal justice costs and the use of public benefits, and sharply increasing the taxes paid by those benefiting from this initiative. AILA InfoNet Doc. No. 09043072. (Posted 3/19/10).

THIS BILL REFLECTS A BALANCED APPROACH TO REFORM AND MUST BE PART OF ANY COMPREHENSIVE EFFORT TO OVERHAUL OUR IMMIGRATION LAWS

•  This measure would require children to have lived in the U.S. for a number of years and to have no criminal record.
•  This measure would require eligible children to dedicate themselves to learning English and succeeding in our educational system.
•  This measure proposes a one-time only fix that would not encourage illegal immigration.

This measure recognizes that the status quo needs to be reformed by granting children the means to continue their education and legalize their status. Such reform works for children and works for America.

DHS issues guidance on NSEERS violations

NSEERS was a program implemented following “9/11″ to more closely scrutinize and monitor the travel habits of individuals from certain countries.  Recently, the program was terminated, but the question remained on how DHS should process applications for certain immigration benefits on behalf of Aliens who, until recently, were required to abide by NSEERS.

DHS just issued a department-wide guidance regarding the handling of Aliens who were previously subject to NSEERS registration, but have failed to fully comply with all provisions of NSEERS. Failure to fully comply with NSEERS often carried with it penalties, including but not limited to, inadmissibility to the United States.

The recently released guidance advises DHS adjudicators/officers to distinguish whether any previous NSEERS violations were willful and deliberate, or unintended or otherwise excusable.   If DHS finds, based on the evaluation of the facts and circumstances, that the violation was NOT intentional, then no further action should be taken adverse to the Alien, with regard to approving or issuing any immigration benefit sought, so long as otherwise qualified. In other words, DHS can no longer deny an application for a benefit SOLELY on the grounds of an NSEERS violation.

The determination of whether or not the noncompliance was willful will be based on the totality of the circumstances, involving a careful consideration of all factors, including but not limited to evidence in the record, statements by the individual, or other relevant information. As always, DHS personnel possess the authority to elicit and consider evidence to aid in determining whether an alien was subject to and complied with NSEERS requirements and whether any non-compliance was willful.

The burden of establishing (by preponderance of the evidence) whether or not an NSEERS violation was willful and deliberate or unintentional rests with the Alien, not DHS.

Evidence that would support a finding that the noncompliance was not willful includes, but is not limited to:

  • Credible claims that the alien received inaccurate or incomplete advice by INS or DHS personnel about where to report or register;
  • Credible claims that the alien was in contact with INS or DHS, but INS or DHS failed to accurately advise the alien as required under the regulations;
  • Incapacitation of the alien (e.g., serious illness and/or hospitalization, admission into a nursing home or extended care facility where mobility is severely limited) that prevented him or her from complying;
  • Exceptional circumstances beyond the control ofthe alien (e.g., natural disaster, death of the spouse, child, or parent of the alien) that prevented him or her from complying; or
  • Any other evidence showing that the failure to appear was through no fault of the alien.

Failure to comply with an NSEERS requirement based on personal inconvenience or fear of immigration consequences is not sufficient to support a finding that the violation was anything other than willful and deliberate.

DHS about to give NSEERS the axe…

The Department of Homeland Security (DHS) is eliminating redundant programs by removing the following countries from, and relieving non-immigrant nationals or citizens of the following countries from compliance with, the special registration procedures under the National Security Entry-Exit Registration System (NSEERS):

  • Afghanistan,
  • Algeria,
  • Bahrain,
  • Bangladesh,
  • Egypt,
  • Eritrea,
  • Indonesia,
  • Iran,
  • Iraq,
  • Jordan,
  • Kuwait,
  • Lebanon,
  • Libya,
  • Morocco,
  • North Korea,
  • Oman,
  • Pakistan,
  • Qatar,
  • Saudi Arabia,
  • Somalia,
  • Sudan,
  • Syria,
  • Tunisia,
  • United Arab Emirates, and
  • Yemen.

Over the past six years, the Department of Homeland Security (DHS) has implemented several new automated systems that capture arrival and exit information on non-immigrant travelers to the United States, and DHS has determined that recapturing this data manually when a non-immigrant is seeking admission to the United States is redundant and no longer provides any increase in security. DHS, therefore, has determined that it is no longer necessary to subject nationals from these countries to special registration procedures, and this notice deletes all currently designated countries from NSEERS compliance.

Until now, the NSEERS regulations required non-immigrant aliens who are nationals or citizens of countries designated by the Secretary of Homeland Security, upon consultation with the Secretary of State, to comply with special registration requirements, including providing fingerprints, a photograph, and any additional information required by DHS to DHS officials at the time the non-immigrant applies for admission at a U.S. port of entry. Non-immigrants subject to NSEERS requirements could also may be required to appear at a U.S. Immigration and Customs Enforcement (“ICE”) office in person to verify information by providing additional information or to provide documentation confirming compliance with the conditions of their status and admission.  Non-immigrants subject to NSEERS previously were required to depart through specified ports to record their departures from the United States.

Since NSEERS was implemented, DHS established the United States Visitor and Immigrant Status Indicator Technology Program (“US-VISIT”), in January 2004, to record the arrival and departure of aliens; verify aliens’ identities; and authenticate and biometrically compare travel documents issued to non-US citizens by DHS and the Department of State. Under US-VISIT requirements, most aliens seeking admission to the United States must provide finger scans and a digital photograph upon entry to the United States at U.S. ports of entry.

DHS also currently requires the collection and electronic transmission to U.S. Customs and Border Protection (CBP) of manifest information for passengers and crew members entering and departing the United States by air or sea. Commercial air carriers departing foreign destinations for the United States or departing the United States for a foreign destination are required to transmit passenger manifests electronically to CBP’s Advance Passenger Information System (APIS) within strict time limits as prescribed by regulation.

Say Good-Bye to Green I-94W Arrival Cards…

DHS just announced the elimination of the legacy arrival/departure form (Form I-94W) for authorized travelers from nations participating in the Visa Waiver Program (VWP).

The use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the United States at all airports by the end of this summer. CBP will activate automated processing for U.S. airports on a rolling basis over the next several months.

Applying for an ESTA became mandatory in January 2009, for all nationals of VWP countries. This requirement allows DHS to determine whether a VWP traveler presents a threat long before the individual boards a U.S.-bound aircraft.

The elimination of the paper I-94W form enables travelers to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States —reducing redundancy and enhancing the security of sensitive personal information, as CBP stores and protects all VWP data electronically on secure servers.  ESTA registration does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa

NOTE: The Visa Waiver Program currently enables the nationals of 36 participating countries to travel to the United States for up to 90 days without obtaining a visa.

CBP Changes its Policy on NTA’s and Deferred Inspections

Beginning on October 1, 2009, returning Legal Permanent Residents (LPRs) with criminal convictions are now more likely to be issued a Notice to Appear (NTA) at ports of entry, rather than the more usual grant of deferred inspection.

In addition, depending on the nature of the conviction, CBP staffing, and available detention bedspace, among other factors, it also is possible that more returning LPRs with criminal convictions will be detained. CBP confirmed, however, that deferred inspection for such returning LPRs is still an option.

These changes in policy are largely due to an appreciable increase in “No-Shows” of those who were previously granted deferred inspection.

Admitted Under VWP for 90 Days, Extension Options Are Limited.

For travelers entering the United States on a visa-free basis, under the terms and conditions of the Visa Waiver Program (VWP), their stays in the U.S. are limited to 90 days (sometimes less) per visit.

While this method of spontaneous travel allows certain travelers from certain countries to visit the United States on a short-term, relaxed (although restricted) basis, frequently the 90-day limitation is one which some would like to overcome.

Generally speaking, a VWP-traveler must physically leave the United States and spend at least 24 hours outside the U.S. before attempting to re-enter.   All too often, VWP-travelers are looking to find a way to briefly exit and re-enter in the hopes of getting another I-94W card for another 90 days.

First, it is important to  remember that one must leave the United States within the mandated 90-day window, as stated on the current I-94W card, which was issued by an inspector of Customs and Border Protection (CBP) at the last physical entry into the U.S. Overstaying the authorized duration on a Visa Waiver entry is a very bad idea and should be avoided whenever physically possible.

How soon one may choose to re-enter the U.S. and how long one would like to stay for another period, is a very important strategic consideration, which could potentially have longer-term consequences, and should be considered with an attorney.  Whether or not a CBP officer will admit a traveler after a recent stay in the U.S. as a VWP-traveler, and for how long one might be admitted are strictly within the discretion of the CBP officer on the day of arrival in the U.S.

Assuming one has carefully weighed one’s options in terms of whether or not to attempt an “exit-and-reentry” procedure to obtain a new I-94W card, and one has acknowledged the risks of potential problems (at the very least some questions from CBP) upon the attempted re-entry, the following questions usually arise:

1)  Where can I travel to?

2) How long must I stay there?

To answer these two questions, one must evaluate and apply CBP’s general position and ‘standard’ procedure in these cases, which again, could vary somewhat from officer to officer, and also vary among different ports of entry and border crossing stations.  CBP states the following:

  • Generally, VWP applicants admitted under the VWP may be readmitted to the United States after a departure to Canada or Mexico or adjacent islands for the balance of their original admission period. This is provided they are otherwise admissible and meet all the conditions of the VWP, with the exception of arrival on a signatory carrier, in which case the inspecting officers have the discretion to grant the applicants entirely new periods of admission.
  • The VWP applicant is admissible and may be readmitted to the United States under the VWP after a departure to Canada or Mexico or adjacent islands provided the person:
    1. Can identify an authorized period of admission that has not expired,
    2. Plans to depart the United States no later than the expiration date of their period of admission,
    3. Presents valid, unexpired passports which reflect admission to the United States under the VWP, and
    4. Continues to meet all criteria set forth in the Immigration and Nationality Act (INA), with the exception of arrival on a signatory carrier.

Regarding the term “adjacent islands”, CBP has compiled a list of various island, countries, and territories which normally restrict or limit VWP-travelers ability to extend their I-94W cards:

  • Anguilla
  • Antigua
  • Aruba
  • Bahamas
  • Barbados
  • Barbuda
  • Bermuda
  • Bonaire
  • British Virgin Islands
  • Cayman Islands
  • Cuba
  • Curacao
  • Dominica
  • Dominican Republic
  • Grenada
  • Guadeloupe
  • Haiti
  • Jamaica
  • Marie-Galante
  • Martinique
  • Miquelon
  • Montserrat
  • Saba
  • Saint-Barthelemy
  • Saint Christopher
  • Saint Eustatius
  • Saint Kitts-Nevis
  • Saint Lucia
  • Saint Maarten
  • Saint Martin
  • Saint Pierre
  • Saint Vincent
  • Grenadines
  • Trinidad
  • Tobago
  • Turks and Caicos Islands
  • Other British, French and Netherlands territory or possessions bordering on the Caribbean Sea.

An Update and Clarification on ESTA

As the U.S. Customs and Border Protection agency recently made ESTA mandatory in mid-January, there has been some degree of confusion as to when and how ESTA applies.

In brief, ESTA only applies to foreign nationals (Non-U.S. citizens) who are eligible to travel to the United States under the terms and conditions of the Visa Waiver Program, without a Visa or Green Card, or other government-issued permission. There are currently 33 nations who are eligible, after 6 nations were very recently added to the list of the previous 27 participants.

Any person who needs a visa or has a visa already does not need to complete the ESTA process prior to travelling to the United States.  Essentially anyone who would complete a WHITE I-94 card at arrival in the U.S., does not participate in ESTA.  On the flipside, anyone who would normally complete a GREEN I-94W card at arrival in the U.S. MUST now complete ESTA.

While the ESTA is geared to eventually phasing out paper I-94W cards altogether, it is CBP’s current advice and recommendation to complete BOTH, the ESTA online, AND the paper I-94W card for inspection.  It is further recommended that the ESTA-traveler bring a paper printout of their ESTA application response in order to maintain a record of their ESTA application number.

The ESTA application Web site is available in 16 languages and includes a help section that provides additional information for VWP travelers to guide them through the application process.  Additional information about ESTA may be found at http://www.cbp.gov/esta

Read the previous post about ESTA here.
Read all previous posts about Visa Waiver here.