March 23rd, 2013 by W. Scott Railton
U.S. Customs and Border Protection (CBP) has announced that it will soon begin to not issue paper I-94 to persons arriving by land or sea. This is a big change in how the ports of entry operate. CBP says it already collects the information electronically, via the Advanced Passenger Information System and Department of State consular processing, making the I-94 redundant to the agency’s tracking purposes. CBP says the current system costs the agency over $1 million per month to operate.
For now, land port of entries will continue to operate as usual, and issue I-94s as need be. Most Canadian arrivals are not issued this card, unless they are entering in a category other than a Visitor for Business or Pleasure.
The agency has provided a website for persons who arrive to print I-94s, for presentation to other government agencies, as need be the case. The website is www.cbp.gov/I94. We would advise anyone who recently arrives to print their I-94, just to double check to make sure that the information entered by the CBP agent at time of entry is in fact accurate.
Here is the agency announcement:
CBP Announces Automation of Form I-94 Arrival/Departure Record
Eliminates Paper Forms, Streamlines Admission Process
(Thursday, March 21, 2013)
Washington — U.S. Customs and Border Protection today announced that it has submitted to the Federal Register a rule that will automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting the United States. Form I-94 provides international visitors evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization. The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs. The change will go into effect 30 days after the rule is published in the Federal Register.
“Automation of the I-94 will increase efficiency and streamline the admission process,” said CBP Deputy Commissioner David V. Aguilar. “Once fully implemented, the process will facilitate security and travel while saving CBP an estimated $15.5 million a year.”
Travelers wanting a hard copy or other evidence of admission will be directed to www.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. ( www.cbp.gov/I94 )
As part of CBP’s work to bring advances in technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler and will allow CBP to better optimize its resources.
*The www.cbp.gov/i94 website will be live 30 days after the rule is published to the Federal Register. ( www.cbp.gov/I94 ) :
March 8th, 2013 by W. Scott Railton
U.S. Customs and Border Protection recently published a Frequently Asked Questions page on the impacts of sequestration on the agency. The agency predicts doubling of wait times at some land port of entries. We’ll have to wait and see, but we would suggest filing now for trusted traveler programs such as NEXUS and Global Entry.
Here’s the FAQ:
What is sequestration?
Sequestration is a fiscal policy procedure adopted by Congress as part of the Budget Control Act (BCA) of 2011. The procedure, designed to force Congress to come to an agreement to address the Federal budget deficit, represents a series of automatic government spending cuts, totaling about $1 trillion over the next decade. These spending cuts, which began March 1, 2013, are divided equally between defense and non-defense spending. Government departments and agencies, including the Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP), do not have input on how these cuts go into effect since they are required by law to be implemented across the board. Sequestration will end when Congress passes legislation that undoes the legal requirements in the BCA.
How will sequestration affect CBP Field Operations?
Under the automatic sequestration cuts, we anticipate reducing agency-wide expenditures significantly during the remainder of Fiscal Year 2013. CBP Field Operations, the office responsible for securing the U.S. border at ports of entry, will experience budget cuts equating to the loss of several thousand CBP officers at these ports of entry, in addition to significant cuts to operating budgets and programs. Stakeholders in the travel and trade industries will see service impacts and CBP employees will be furloughed.
How is CBP going to maintain its priorities under sequestration?
CBP Field Operations has issued clear guidance on maintaining priority operations during sequestration with the following key principles:
Our security efforts will remain our highest priority. We will not allow degradation of our primary anti-terrorism mission;
We will prioritize core processing and facilitation operations for both travelers and cargo;
We will continue to carry out border security operations consistent with all applicable legal requirements, including mandatory examinations of perishable commodities; and
All trusted traveler and trader programs, including Global Entry, SENTRI, and Nexus, C-TPAT and FAST will be maintained and emphasized, limiting the impact on CBP’s trusted partners.
Is it safe to travel to the United States during sequestration?
CBP’s priority mission is detecting and preventing terrorists and terrorist weapons from entering the United States. While the results of sequestration may, at times, cause inconvenience for travelers at our ports of entry, we will not compromise public safety due to budget concerns.
How will sequestration impact service at ports of entry?
CBP will operate in a way that is least disruptive to border security and the facilitation of lawful travel and trade, but CBP will face budget cuts and employee furloughs that will result in increased wait times and reduced hours of service. These impacts will likely increase during the summer peak travel season.
In the air environment, we expect increased wait times at major U.S. international airports of up to 50 percent or more, with peak waits of up to four hours at our busiest airports. Increased processing times at airports — including both CBP operations and Transportation Security Administration screening – may make it more difficult for travelers to make tight connecting flights.
There will also be greater wait times for personal vehicles and pedestrians at our land border ports, with the doubling of peak waits up to five hours or more at our largest land border crossings. Travelers should adjust their trip itineraries to account for unexpected delays.
Will any ports of entry be closed, or will hours be curtailed?
CBP may reduce hours of service at select airports, seaports and land ports of entry; these reductions will be made in a way that minimizes the impact to operations. Any changes to service hours will be port-specific and will be determined at the local level. Information will be shared publicly through various media outlets.
What will happen if I miss my connecting flight?
CBP advises travelers to anticipate longer processing lines at air, land and sea ports of entry during sequestration and to schedule connecting flights accordingly. If you encounter problems, please contact your carrier.
What will be the impact on cargo shipments?
Sequestration will reduce service levels in CBP’s cargo operations. There will be increased and potentially escalating delays for container examinations of up to 5 days or more at major seaports. We may also experience significant daily back-ups for truck shipments at land border ports. CBP will continue to carry out border security operations consistent with all applicable legal requirements, including mandatory examinations of perishable commodities. More detailed information is posted separately for trade community stakeholders.
Will sequestration curtail CBP’s trusted traveler and trader programs?
All trusted traveler and trusted trader programs will be maintained, including Global Entry, SENTRI, Nexus, and FAST. Membership in these programs allows for faster processing as a general rule and members will also receive these same benefits during sequestration. However, we do expect longer approval times on new trusted traveler applications because of increased demand.
How soon will I notice a change as a result of sequestration budget cuts?
You may notice some changes immediately, while many of the anticipated effects of sequestration are likely to increase over time. Over the past three years, CBP Field Operations has maximized its existing resources to accommodate a 12 percent increase in the volume of international air arrivals. This has been achieved through a strong focus on efficiencies, innovation, and expanded use of trusted traveler programs. As such, the resource reductions that CBP Field Operations will face under sequestration will result in significant, noticeable changes. There may also be significant economic impacts because CBP will not be able to accommodate requests for extended hours or new services. These effects will be compounded if the budget cuts are not reversed and employees need to be furloughed.
Do I need to be concerned about CBP employee furloughs?
Many U.S. government departments and agencies are planning for employee furloughs due to the automatic budget cuts. If sequestration continues through April, CBP would begin to furlough all employees. These unpaid furloughs will have a significant, negative impact on our own employees. In addition, the effects will also be noticed at our ports of entry in terms of longer wait times, delayed processing for travel and trade, and less flexibility to accommodate special circumstances.
How can I find out more about how sequestration as it relates to CBP and the Department of Homeland Security?
For general information about sequestration please visit the website. ( WhiteHouse.gov )
We will continue to keep the public informed as the effects of sequestration upon CBP become clearer and better understood.
March 1st, 2013 by W. Scott Railton
How will sequestration affect Department of Homeland Security operations?
On January 31, 2013, DHS Secretary Janet Napolitano responded to a letter regarding the potential impacts of sequestration submitted by Chairwoman Barbara A. Mikulski of the Appropriations Committee. Ms. Napolitano explains then that reductions mandated by Sequestration will undermine the significant progress DHS has made over the past ten years and will negatively affect the Department’s ability to carry out its vital missions. Here are a few examples she cites:
• U.S. Customs and Border Protection (CBP) will not be able to maintain current staffing levels of Border Patrol Agents and CBP Officers as mandated by Congress. Funding and staffing reductions will increase wait times at airports, affect security between land ports of entry, CBP’s ability to collect revenue owed to the Federal Government, and slow screening and entry programs for those traveling into the United States.
• The Transportation Security Administration will reduce its frontline workforce, which will substantially increase passenger wait times at airport security checkpoints.
• Furloughs and reductions in overtime will adversely affect the availability of the U.S. Secret Service workforce and hinder ongoing criminal investigations.
• The Federal Emergency Management Agency’s Disaster Relief Fund will be reduced by over a billion dollars, with an impact on survivors recovering from future severe weather events and affecting the economic recoveries of local economies in those regions.
• DHS will be unable to move forward with necessary management integration efforts such as modernizing critical financial systems. This will hinder the Department to provide accurate and timely financial reporting, facilitate clean audit options, address systems security issues, and remediate financial control and financial system weaknesses.
For Ms. Napolitano’s full written testimony on “The Impacts of Sequestration,” please visit the Department of Homeland Security’s website: http://www.dhs.gov/news/2013/02/14/written-testimony-secretary-napolitano-senate-committee-appropriations-hearing.
February 1st, 2013 by W. Scott Railton
The President and the Senate both announced plans for immigration reform legislation this week. There is a feeling amongst immigration advocates that this may finally be the year that Washington D.C. gets the job done. The challenge will be for the effort not to stall out due to the heated politics involved. There is no question that reforms are needed. We shall see.
I am following this debate closely, as the outcome most certainly impacts our clients. In April, I will be traveling to Washington D.C. to meet with the Washington State Senators and Representatives to discuss immigration reform. I hope to have more to say about this debate here on this blog, as time goes on. In my opinion, the right reform package will bring fairness and discretion to our immigration law system, and will pragmatically address the needs of American families and employers, for whom our laws and Government serve.
For now, I wanted to post, in their own words, the President and Senate’s proposed principles for immigration reform:
1. President Obama’s plan:
• Continuing to Strengthen Border Security: President Obama has doubled the number of Border Patrol agents since 2004 and today border security is stronger than it has ever been. But there is more work to do. The President’s proposal gives law enforcement the tools they need to make our communities safer from crime. And by enhancing our infrastructure and technology, the President’s proposal continues to strengthen our ability to remove criminals and apprehend and prosecute national security threats.
• Cracking Down on Employers Hiring Undocumented Workers: Our businesses should only employ people legally authorized to work in the United States. Businesses that knowingly employ undocumented workers are exploiting the system to gain an advantage over businesses that play by the rules. The President’s proposal is designed to stop these unfair hiring practices and hold these companies accountable. At the same time, this proposal gives employers who want to play by the rules a reliable way to verify that their employees are here legally.
• Earned Citizenship: It is just not practical to deport 11 million undocumented immigrants living within our borders. The President’s proposal provides undocumented immigrants a legal way to earn citizenship that will encourage them to come out of the shadows so they can pay their taxes and play by the same rules as everyone else. Immigrants living here illegally must be held responsible for their actions by passing national security and criminal background checks, paying taxes and a penalty, going to the back of the line, and learning English before they can earn their citizenship. There will be no uncertainty about their ability to become U.S. citizens if they meet these eligibility criteria. The proposal will also stop punishing innocent young people brought to the country through no fault of their own by their parents and give them a chance to earn their citizenship more quickly if they serve in the military or pursue higher education.
• Streamlining Legal Immigration: Our immigration system should reward anyone who is willing to work hard and play by the rules. For the sake of our economy and our security, legal immigration should be simple and efficient. The President’s proposal attracts the best minds to America by providing visas to foreign entrepreneurs looking to start businesses here and helping the most promising foreign graduate students in science and math stay in this country after graduation, rather than take their skills to other countries. The President’s proposal will also reunify families in a timely and humane manner.
2. The Senate’s plan:
• Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required.
• Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families.
• Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers.
• Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.
The House of Representatives also has a group working on a plan. I expect they will be announcing their own principles in the next few weeks, and these will likely be similar to those above, with perhaps more emphasis on enforcement. That’s just my speculation–as I said, we shall see.
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December 11th, 2012 by W. Scott Railton
The Department of State recently issued additional guidance to Consular Officers on how to adjudicate visa applications for “B-1 in lieu of H-1B and H-3″ applicants. It can be hoped that businesses can rely on this guidance, as the requirements for this almost mythical nonimmigrant category have been murky in the past. Here’s what the Department of State has to say about B-1s in lieu of H-1Bs:
The B-1 in lieu of H-1B and H-3 guidance in 9 FAM 41.31 N11 is under review in an interagency process, but remains in effect until further notice. Consular officers should not hesitate to apply this guidance in appropriate cases. This cable reviews the existing B-1 in lieu of H-1B and H-3 guidance and provides advice for consular officers to effectively apply this guidance.
9 FAM 41.31 N11 states, in part: “There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstance; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:
- The Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity should not be considered as coming from a ‘U.S. source;’
- In order for an employer to be considered a ‘foreign firm’ the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad.”
- Applicants for all B visas, including B-1 visas, issued must overcome presumption of immigrant intent to qualify for B status.
- Applicants should only be annotated under B-1 in lieu of H-1B when they plan to engage in activities that would normally require an H-1B.
- The applicant must continue to be paid by the overseas employer while they are in the U.S. An expense allowance from a U.S. employer is permitted.
- B visas issued are not intended for long-term placement and should generally be issued for activity in the U.S. that is less than six months in duration.
- In order to qualify for B-1 in lieu of H-1B, the consular officer must find that the applicant clearly meets the H-1B requirements, and is clearly an employee of the overseas company.
- The activities performed must meet the definition of “specialty occupation” in that it requires a bachelor’s degree or equivalent.
- In order to qualify for B-1 in lieu of H-3, the consular officer must find that the applicant clearly meets the H-3 requirements for a trainee, and is clearly and employee of the overseas company.
- The regulatory criteria for an H-3 petition approval can be found at 9 FAM 41.53 N4.5-1.
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October 12th, 2012 by W. Scott Railton
I’m pleased to see that West Publications has published “Visa Solutions for International Students, Scholars, and Sponsors: What You Need to Know.” I am the author of Chapter 3, entitled “Getting Admitted to the United States.”
The book is an introductory guide for students and scholars traveling to the United States. In it, students can learn about every aspect of the visa process, including obtaining the visa, getting admitted, maintaining lawful status while in the U.S., and working in the United States while in student status. The book includes chapters on F-1 and J-1 visas, program sponsorship, international medical graduates, and I-9 programs for institutions of higher education. The principal author and editor for the book is my colleague Lisa Ellis, who graciously invited my participation, along with several other respected attorneys and professionals. My chapter of course focuses on what students and scholars can expect of the inspection process at ports of entry and in dealing with U.S. Customs and Border Protection.
October 2nd, 2012 by W. Scott Railton
The Department of Homeland Security announced today that it will henceforth accept new TN applications from Canadians via mail or courier to U.S. Citizenship & Immigration Services (USCIS). This is a significant change in administrative procedure from the former requirement that all new TN petitions be filed at a Port Of Entry or through Pre-Flight Inspection with U.S. Customs and Border Protection (USCBP).
TNs are Treaty-NAFTA nonimmigrant work authorizations, allowing certain Canadian and Mexican professionals to work in the United States for U.S. employers under certain conditions. TN status may be granted up to three years, and is renewable. For more on the category, click here.
This change in procedure is really good news for applicants, and may end up adding some predictability to the adjudication process. Before this announcement, applicants had no other option than to arrive at port of entry with the intention of working in the U.S., with the final say going to a line officer at U.S. Customs and Border Protection. Occasionally, disappointment for employer and employee would follow. Now, employers have the option of petitioning for their employees in advance, thereby determining whether or not there will be any issues far ahead of actually traveling to the United States.
Further, USCIS will likely issue Requests for Evidence if there is an issue with the case, allowing the petitioner and employee an opportunity to respond in due time, rather than be turned around as this case with a border application. While the administrative hoop of a Request for Evidence is burdensome, the process requires the agency to articulate its demands and gives a fair and non-disruptive manner to the petitioner to respond.
The cost of filing initially through USCIS will be higher, as an I-129 is required and the filing fee for this is $325. The cost of filing at the border is $50 plus $6 for an I-94. There will be cases though where the added cost will be worth the predictability that the process through USCIS brings.
With this expansion in adjudicative policy, there will be some cases where it will clearly be a strategic decision on whether to file with USCIS at a higher cost and with a lengthier adjudication process, or file at a port of entry with USCBP. USCBP is primarily an enforcement agency, while USCIS is primarily vested with responsibility for immigration benefits. This distinction in agency missions needs to be considered sometimes when choosing the best “forum” for an adjudication.
The change in policy is a result of the Beyond The Border agreement between Canada and the United States. More administrative changes in border practice are forthcoming.
August 31st, 2012 by W. Scott Railton
The cross-border tax specialists at VSH, PLLC will host a seminar for Canadian businesses and their advisors entitled “Doing Business in the U.S.” on September 26th in Richmond, B.C. I am excited to be joining them, to speak on the immigration challenges presented by doing business in the United States. We will also be joined by Jim Pettinger, President of International Market Access, Inc. Jim has helped hundreds of businesses get started in the United States, and is routinely quoted in the media concerning cross-border matters. This will be an excellent opportunity to meet with experts to discuss the various challenges and strategies for doing business in the United States.
The seminar will be hosted at the Abercorn Inn in Richmond, BC. The seminar begins at 7:30 AM and will go until 10:30 AM. The cost is $25 (USD) and will include a buffet breakfast.
Participants can register online at this link: http://expandtotheus.eventbrite.com .
August 14th, 2012 by W. Scott Railton
The Department of Homeland Security will begin receiving deferred action applications for certain childhood arrivals on August 15th, presuming the forms have been approved by OMB. The program, announced on June 15th, is a programmatic exercise of prosecutorial discretion by the U.S. government for young persons who entered without status or who are now out of status.
The program will go a long way towards removing the day-to-day fear of deportation that as many as 1.7 million young people in the United States have to live with, while also offering these young persons work authorization and opportunity.
The basic requirements for eligibility are that a person:
1.) Came to the United Stat4es before reaching their 16th birthday
2.) Has continuously resided in the United States since June 15, 2007, up to present time
3.) Were under the age of 31 as of June 15, 2012
4.) Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012
5.) Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained your G.E.D., or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States
6.) Have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat
7.) Were present in the United Sates on June 15, 2012, and at the time of making the request for consideration of deferred action.
More details on eligibility can be found at www.uscis.gov.
While the government envisions an application process that will be relatively simple for the typical petitioner, there is potential for adverse action against an applicant, particularly if there is any misrepresentation in the application or if there is a disqualifying criminal history.
Any young person considering application should review the whole of the program carefully, and seek out assistance if necessary. USCIS says there is no right of appeal to a denied application, though a denial will not prohibit the payment of a new fee and submission of a new application. Any past criminality in particular merits very close examination, prior to application.
It is possible that the implementation of the deferred action program will affect timelines for other types of applications. USCIS has significantly increased staffing in anticipation of the 1 million-plus applications that it will receive. However, historically, programs like this have created delays for other types of application adjudications. We’ll just have to wait and see. I’m sure the U.S. Government is taking steps to try to avoid this possibility.
June 26th, 2012 by W. Scott Railton
Today the U.S. Supreme Court published its landmark decision in the case of Arizona v. United States. A few thoughts:
Arizona v. U.S. is a case where the United States sought to stop an Arizona state law from being put into effect, based on the contention that the law was preempted by existing federal laws. The Supreme Court agreed with the U.S. on three out of four counts, but allowed on the fourth count that Arizona law enforcement officers could ask persons for their immigration papers (aka “show me your papers”) if they have a reasonable suspicion that the person is out of status. This latter allowance will almost certainly lead to racial profiling in the near term, and the Supreme Court left the door open for future challenges of the law for just that reason.
Now, in the past two weeks, we have the Supreme Court basically striking a state effort to legislate concerning immigration concerns, as well as a historic move by President Obama and the Department of Homeland Security to institutionalize the use of prosecutorial discretion in the case of qualifying youth who for have made the U.S. their home, despite their original entry without authorization.
Arizona v. U.S. and the deferred action decision have rightfully made headlines. Considered together, both underscore the failure of Congress to act on immigration in the past ten years. Comprehensive immigration reform means different things to different people, but Congress needs to take on these tough issues. The Arizona decision clearly says that immigration is a federal concern. The decision also sympathizes with the people of Arizona, acknowledging concerns. It is time for the gridlock and partisanship on immigration issues to end in Congress.
And it might. Nothing seems to motivate politicians more than political survival, and immigration reform is increasingly where many of the votes are.
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