Copland and Brenner

Table of Contents

1. Preface
2. US-VISIT Arrives
3. President Bush Proposes Legal Status For Undocumented Workers

1. Preface

   As of January 5, 2004, many aliens seeking admission to the U.S.A., traveling on valid visas for bona fide nonimmigrant purposes, are required to provide biometric identifiers during the inspection process at many U.S. ports of entry. On January 7, 2004, President Bush proposed that the approximately 10 million illegal aliens already present in the U.S.A. be able to regularize their status under a “temporary worker” program that will “match willing foreign workers with willing American employers, when no Americans can be found to fill the jobs.”

   While the Administration touts both programs as enhancing the security of U.S.borders, the Bush proposal is seen by some as “rewarding” aliens who have clearly violated U.S.immigration laws. For now anyway, the seeming disconnect between the two programs has ruffled more than a few feathers.

2. US-VISIT Arrives

   By publication in the Federal Register on January 5, 2004, the Department of Homeland Security (“DHS”) implemented the United States Visitor and Immigrant Status Indicator Technology Program (“US-VISIT”). The Notice sets forth “the requirements for the first phase” of the program; the interim final rule makes US-VISIT effective upon publication for “good cause” reasons largely involving “the public interest and the national security of the nation.”

   Who is Affected by the New Rule?

   The rule applies “only to aliens seeking to be admitted pursuant to a nonimmigrant visa who travel through designated air and sea ports.” As discussed in the extensive Supplementary Information to the rule, aliens exempt from US-VISIT requirements include the following:
   - lawful permanent residents of the U.S.A. (note that evidence of such status must be available at the time of application for admission)
   - nonimmigrant aliens entering the U.S.A. at any land port of entry
   - Canadian citizens who enter through air and sea ports of entry but “who do not apply for admission pursuant to a nonimmigrant visa”
   - aliens who enter the U.S.A. on the visa waiver program; however, current law provides that such aliens “will not be admitted [to the U.S.A.] after October 26, 2004 without a machine-readable, tamper-resistant passport that meets ICAO [International Civil Aviation Organization] biometric standards for photographs, unless his passport is unexpired and was issued prior to that date.”
   - aliens who are subject to ongoing “special entry and exit registration procedures under NSEERS,” for whom NSEERS compliance “will meet the requirements of [the] US-VISIT rule”
   - aliens admitted on visas in the following classifications: 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, or NATO-6 visas, unless the Secretary of State and the Secretary of Homeland Security jointly determine that a class of such aliens should be subject to US-VISIT
   - children under the age of 14
   - persons over the age of 79
   - classes of aliens the Secretary of Homeland Security and the Secretary of State jointly determine shall be exempt
   - an individual alien whom the Secretary of Homeland Security, the Secretary of State or the Director of Central Intelligence determines shall be exempt

   Note that Mexican citizens who are required to present a border crossing card (“BCC”) with a biometric identifier, as well as Mexicans who are nonimmigrant visa holders, “will be required to provide fingerprints and photographs if they enter or exit at the designated ports.” (emphasis added). In addition, aliens admitted on 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-5, or NATO-6 visas who are no longer in such status on the date of departure, however, are subject to the departure requirements of the rule.

   Which Ports of Entry are Covered by the Rule?

   While 114 air ports of entry are designated in the Notice for US-VISIT inspection, only one – Baltimore, Maryland – is designated for inspection at the time of departure. Fifteen sea ports of entry are designated for US-VISIT inspection, but only one – Miami, Florida – is designated for inspection at the time of departure. DHS “has identified thirty departure ports as candidates at which it will next implement biometric collection,” with such collection to begin at about 15 of those ports “within the next few months.”

   What is Required of Aliens Subject to the Rule?

   As used in the rule, “a ‘biometric identifier’ is a physical characteristic or other attribute unique to an individual that can be collected, stored, and used to verify the claimed identity of a person who presents himself or herself to a border inspector.” Biometric identifiers listed in the rule “include, but are not limited to, the face (i.e., captured in a photograph), fingerprints, hand geometry measurements, handwriting samples, iris scans, retina scans, voice patterns, and other unique characteristics.”

   Under the rule, aliens subject to US-VISIT must provide “a digital photograph and two fingerprints” upon arrival in the U.S.A. through designated air or sea ports of entry. At the time of departure from designated air and sea ports, affected aliens must again submit their fingerprints and their nonimmigrant visas and/or passport will be electronically scanned. DHS “reserves its right to expand the types of biometric identifiers required in the future.”

   What Happens with the Information Provided?

   The “alien’s biometric and other information will be checked against law enforcement and intelligence data to determine whether the alien is a threat to national security or public safety, or is otherwise inadmissible.” In doing so, the biometric and other information will be available to officers of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, and Department of State consular officials and staff. In addition, DHS may “permit other Federal, State, and local law enforcement officials to have access to the entry exit system for law enforcement purposes.”

   For those with privacy concerns, the Notice states that DHS “has the responsibility to ensure the security, accuracy, relevance, timeliness and completeness of the information maintained in the US-VISIT system. Information is safeguarded in terms of applicable rules and policies, including the Department's automated systems security and access policies. Only those individuals who have an official need for access to the system in the performance of their duties will, in fact, have access to the system. Records of those individuals who become U.S. citizens and legal permanent resident aliens will be protected in line with all applicable privacy laws and regulations. Those, including nonimmigrant aliens, who wish to contest or seek a change of their records should direct a written request to the US-VISIT Program Office.”

   What Consequences may Result from Noncompliance?

   The rule specifies that the “failure of an applicant for admission to comply with any requirement to provide biometric identifiers may result in a determination that the alien is inadmissible.” An alien’s “failure to comply with [ ] departure requirements, including any requirement that the alien provide biometric identifiers, may constitute a failure of the alien to maintain the terms of his or her nonimmigrant status.” (emphasis added) Such a finding may render an alien ineligible for future visas, admission or discretionary benefits.

   DHS “recommends that any alien…covered by [the] rule’s departure requirements and who chooses to depart from a location where US-VISIT departure procedures are not in place may wish to preserve any evidence that he or she did indeed depart…showing the person left…in a timely manner…in case there is ever any future question about whether the alien properly left” the U.S.A. This is essential to any affected alien, because a “determination that the alien previously overstayed the terms of his admission may result in a finding of inadmissibility for accruing prior unlawful presence…that the alien is otherwise ineligible for a visa or other authorization to reenter” the U.S.A., or may result in a visa being deemed void.”

3. President Bush Proposes Legal Status For Undocumented Workers

   Flanked by the leaders of Hispanic and Latino organizations in the East Room of the White House on January 7, President Bush unveiled his proposal for a “temporary worker” program intended to benefit millions of unlawfully present aliens and the employers who need their services. The President emphasized that the program is not an amnesty program and that he “oppose[s] amnesty, placing undocumented workers on the automatic path to citizenship,” because doing so “encourages the violation of our laws, and perpetuates illegal immigration.” That being said, the President’s artful speech affirms “the wisdom of remaining open to the talents and dreams of the world.”

   The President did not offer any draft legislation but merely a set of parameters that he supports. As described by the President, the program would:

   - “offer legal status, as temporary workers, to the millions of undocumented men and women now employed” in the U.S.A.
   - “allow willing workers to enter our country and fill jobs that Americans [ ] are not filling”
   - involve “legal status” that would “last three years and will be renewable – but it will have an end”
   - require employers “who extend job offers [to] first make every reasonable effort to find an American worker for the job at hand”
   - require the “government [to] develop a quick and simple system for employers to search for American workers”
   - mandate that employers “report to the government the temporary workers they hire, and who leave their employ, so that we can keep track of the people in the program, and better enforce immigration laws”
   - involve “strong workplace enforcement with tough penalties for [ ] any employer violating these laws”
   - require that “[u]ndocumented workers now here [ ] to pay a one-time fee to register for the temporary worker program” (no fee would be required of those “who seek to join the program from abroad, and have complied with our immigration laws”
   - include issuance of “a temporary worker card that will allow them to travel back and forth between their home and the United States without fear of being denied re-entry into our country”
   - “expect[ ] temporary workers to return permanently to their home countries after their period of work… has expired”

   Notwithstanding the optimism in certain quarters, is important to keep in mind that the Bush proposal is, in fact, merely a proposal. Whether and when any actual legislation is proposed or passed depends upon our representatives in both Houses of Congress in this Presidential election year. Though winter’s chill is upon us, things are surely heating up in Washington.

   Conclusion

   Coming when it did, the Bush proposal generated significant media coverage and (coincidentally or not) deflected attention from what some might consider US-VISIT’s specter of Big Brother. For those interested in viewing the proposal of President Bush, the webcast, transcript and press briefing are available at www.whitehouse.gov. For those interested in reviewing the provisions of US-VISIT, the Federal Register Notice and interim rule may be accessed online at http://www.access.gpo.gov/su_docs/fedreg/frcont04.htmland clicking on January 7, 2004.