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January
2009 Newsletter January 26, 2009 DEAR CLIENTS AND FRIENDS: Mark Twain, the American author and humorist, once wrote: “Travel is fatal to prejudice, bigotry and narrow mindedness, and many of our people need it on these accounts. Broad, wholesome, charitable views of men [and women] and things cannot be acquired by vegetating in one little corner of the Earth all one’s lifetime.” Twain’s comment is timeless, insightful, and true. Particularly in this age of globalization accompanied by economic strife and international tensions, travel in an interconnected world is necessary and perhaps even key to both individual human growth and an overall betterment of the world. But how does this play out for foreign nationals? This is the focus of this Newsletter. Given the international clientele whom we serve, there is a recurrent need to travel internationally for such disparate reasons as family matters, business, personal pleasure, international conferences, etc. Particularly in this post-9/11 period, we are seeing increasingly rigorous inspection standards and procedures, interminable delays, and oftentimes incomprehensible denials. As a result, many of our clients are either postponing or entirely foregoing international travels in the fear that they will be denied admission to the U.S. upon return or experience significant delays abroad. Foreign nationals possess certain due process protections as well as access to legal services when they are in the United States. But when abroad, these safety net protections diminish greatly, and foreign nationals become more vulnerable to delays, denials, and inaction from both U.S. Consular Officers working within U.S. embassies and Customs and Border Protection (CBP) Officers who perform inspections at the various ports of entry. While we cannot eliminate entirely the uncertainty connected with international travel, we do want to provide some general overview observations on lessening the potential problems with reentering the United States following trips abroad. This Newsletter is essentially structured along the following lines:
KEY, CARDINAL RULE: CONSULT WITH YOUR ATTORNEY We strongly encourage our clients to recurrently if not systematically consult with us prior to departures from the United States. We have a long-term interest in your immigration welfare, which certainly extends to facilitating your return to the United States. Obviously, we will want to discuss the documentation that you need to possess in order to return to the United States, as well as general “dos and don’ts” when applying at the Consulate for a visa or at the port-of-entry for admission. It is absolutely imperative for our clients to truthfully answer any question presented to them, but it is equally vital to understand the nature and implications of these questions so as to answer in the most appropriate manner. Remember: There is no access to an attorney during the visa issuance and/or admission processes, so knowledge and advance planning are crucial. It is absolutely critical for our clients to update us fully on any new developments in their personal or professional lives, since these may have profound, - and sometimes, even incapacitating consequences on their ability to return to the United States. Even seemingly inconsequential violations of the law may have powerful, negative consequences to a foreign national’s eligibility to return to this country. Please note: The U.S. Government has substantially greater technological means to access an individual’s background information, which makes it imperative to forthrightly address the consequences of any aberrant behavior. In short, be truthful and open in your discussions with us. Our conversations are confidential, assuming that an attorney-client relationship exists, and it is far more beneficial to troubleshoot a potential problem than to deal with matters following the denial of visa issuance and/or a request for admission to the United States. BASIC RULES FOR INTERNATIONAL TRAVEL Many of these points may be self evident, but we would like to present in schematic fashion some basic underlying rules when contemplating a trip abroad. If you have any specific or further questions, by all means contact us, but for present purposes, we are simply presenting this information in short bullet points.
THREE NEW DEVELOPMENTS OF IMPORTANCE 1. Extension of USA-VISIT Program The US-VISIT Program requires foreign nationals to provide biometric identifiers, such as fingerprints, so as to give a border officer a vastly increased set of information relating to the eligibility (i.e., the admissibility) of a foreign national to the United States. Basically, this digitized data correlates with massive FBI, Department of Defense, and other government-run databases that construct a detailed profile of an individual’s background. The US-VISIT program, introduced in 2003, initially was limited to foreign nationals travelling to the United States under nonimmigrant visas. In 2004, the scope of this program was expanded to include those coming under the Visa Waiver Program. But in any case, the program was limited to foreign nationals seeking temporary, nonimmigrant periods of residence, rather than to foreign nationals who have already gone through an extensive background security check procedure as part of their applications for permanent resident status. Effective January 18, 2009, the US-VISIT Program was expanded to include nearly all non-citizens, including lawful permanent residents. The major exceptions to this requirement include Canadian citizens seeking short-term admission for business or pleasure and certain diplomatic personnel. As a consequence, permanent residents will have to provide their biometrics in the form of a 10-fingerprint set at the port of entry. This, in turn, will trigger a much more in-depth review of their overall eligibility to return to the United States. This expansion of the US-VISIT Program to permanent residents and others does not change the basic underlying principle, which is that a returning permanent resident needs to establish his/her admissibility to the United States. Therefore, even if a person has been granted permanent residence, this status can be lost owing to a wide range of situations, including many criminal convictions, terrorist actions, certain medical conditions, drug possession, DUIs, etc. What has changed, though, is that previously, certain relatively inconsequential offenses could, in a sense, “fly under the radar screen” so as to escape the attention of the CBP Inspector. But with the institution of the US-VISIT Program, a border office can readily access the detailed background of a permanent resident, even including seemingly inconsequential and outdated infractions – some of which could have significant and adverse immigration consequences. 2. ESTA: New Registration Program for Visa Waiver Travelers As previously reported in this Newsletter (issue of August 18, 2008), effective January 12, 2009, foreign nationals traveling to the United States under the Visa Waiver Program need to preregister using the “Electronic System for Travel Authorization” (ESTA). The Visa Waiver Program permits nationals of particular countries to enter the United States for 90 days or less provided they possess passport and approved electronic authorization pursuant to ESTA. Participating Visa Waiver Program countries are noted by the Department of State at http://travel.state.gov/visa/temp/without/without_1990.html#countries. The electronic preregistration system that can be accessed through the CBP website at https://esta.cbp.dhs.gov. ESTA essentially provides a pre-notification to the port of entry that a foreign national is travelling to the United States under the Visa Waiver Program so that CBP can proactively commence the review and vetting process to determine if there are any grounds for inadmissibility of the arriving foreign national. Under law, foreign nationals traveling under the Visa Waiver Program will not be allowed to travel to this country unless they have received ESTA System clearance. In addition, upon arrival to the United States, a Visa Waiver Program foreign national still needs to undergo the US-VISIT biometric process, which provides a double-check on the identity of the foreign applicant and his/her eligibility to be admitted to the United States. 3. Travel Requirements with Canada For years, there has been a somewhat relaxed attitude toward travel between the United States and Canada. For U.S. and Canadian citizens, a passport has not even been required for travel between the two countries and proof of citizenship could be established oftentimes on the basis of a sworn affidavit rather than documentary evidence. While foreign nationals entering from Canada have always needed to go through the U.S. inspection process at the port of entry, there has traditionally been somewhat relaxed documentary requirements, including an ability to use an expired visa, provided that the foreign national otherwise possesses valid status to enter the United States. This is known as the Automatic Visa Revalidation Program. Under a program known as the Western Hemisphere Travel Initiative, both U.S. and Canadian citizens now face progressively more strict documentary requirements. Since January 23, 2007, U.S. citizens traveling by air on trips to Canada have been required to present either a passport or a government-issued photo ID along with proof of citizenship. (Given the stress of mounting passport applications, the Department of State granted a reprieve of this requirement in June 2007 until September 30, 2007.) Effective June 1, 2009, U.S. citizens entering through land or sea border crossings will also need to possess a passport or other approved secure document. Until that date, proof of citizenship and identity still needs to be established, but this can be done through a government-issued photo ID, such as a driver's license and proof of citizenship such as a birth certificate, or a passport. This basically creates an across-the-board requirement for all U.S. citizen and other travelers (including Canadians) to possess a valid passport when undertaking any foreign travels, including short, spontaneous trips to Canada. As always, please feel free to distribute this Newsletter to other interested recipients and by all means, please bring any questions or comments to our attention. It is always a pleasure to hear from those whom we serve. Cordially, ROBERT D. ARONSON This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served byAronson& Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences. |
Aronson & Associates,
P.A. |