Copland and Brenner

Table of Contents

1. US-VISIT Contract Awarded
2. AILA Warns Against Internet Revelation

1. US-VISIT Contract Awarded

   On May 28, 2004, the Department of Homeland Security (“DHS”) announced the Prime Contract Award for the massive entry-exit monitoring system known as US-VISIT (United States Visitor and Immigrant Status Indicator Technology Program). The contract, with a “minimum value” of $10 million and a “maximum value” of $10 billion, was awarded to Accenture LLP. The contract covers a base period of five years, and has five additional one-year options.

   Background

   US-VISIT was mandated under the U.S.A. Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (“U.S.A. PATRIOT”) Act, signed into law by President Bush on October 26, 2001. Title IV of the PATRIOT Act contained amendments to the Immigration and Nationality Act (“INA”) authorizing broad powers to identify, monitor, detain, exclude and prosecute aliens suspected of engaging in terrorist activities. Within two years of enactment, a technology standard was to be developed to permit verification of the identity of persons seeking U.S. visas or entry to the U.S.A. The technology would be available to U.S. consular officers, immigration inspectors at ports of entry, and certain law enforcement and intelligence officers responsible for investigating or identifying aliens admitted to the U.S.A. Implementation of an integrated entry – exit data system for U.S. ports of entry, previously enacted as Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IRA”), was to be conducted “with all deliberate speed and as expeditiously as possible.”

   Readers may recall that the first phase of US-VISIT was implemented in January 2004. The implementing regulation requires that aliens seeking admission to the U.S.A. pursuant to a visa, and who travel through 115 air and 14 sea ports of entry, have their two index fingers scanned and a digital photograph taken to verify their identity at the port of entry. That biometric data is compared to the data obtained by the U.S. consulate overseas that issued the visa, and the digital picture that was taken at the visa-issuing point is displayed to the officer at the port of entry for visual comparison and confirmation. This interface is intended to insure that the person seeking entry to the U.S.A. is the same person to whom the visa was issued.

   DHS asserts that, since its implementation on January 5, 2004, US-VISIT “has helped the Departments of Homeland Security and State intercept more than 500 persons with prior or suspected criminal or immigration violations,” including “convicted rapists, drug traffickers, individuals convicted of credit card fraud, a convicted armed robber, and numerous immigration violators and individuals using falsified documents.”

   For now, US-VISIT is largely an entry monitoring system. However, a pilot program is in place for an automated “check-out” at departure confirmation kiosks in two locations (Baltimore Washington International Airport and Miami International Cruise Line Terminal).

   The Company, Its Competition and Costs

   While the DHS announcement states that Accenture hails from Reston, Virginia, a May 24 New York Times article notes that its headquarters are located in Hamilton, Bermuda. This fact, the article states, is “irking some lawmakers.”

   Accenture was competing with two U.S. – based companies (Lockheed Martin and Computer Sciences Corp.) for the contract. As described in the New York Times article, Accenture’s bid was $11.8 billion, Computer Sciences’ $14.8 billion, and Lockheed Martin’s $31.8 billion. Accenture’s competitors, according to that article, “have traditionally been the nation’s two largest contractors for the Federal Aviation Agency in the development and maintenance of the nation’s air traffic control system,” a “parallel [that] worries some executives” due to the “$500 million and 15 years [that] were squandered on the effort to modernize the nation’s aging air traffic system beginning in the 1980’s.” One of the prime contractors was a former IBM division that is “now part of Lockheed Martin.”

   The article cites a General Accounting Office (“GAO”) report from September 2003 stating “that ‘the program is a risky endeavor,’ given its enormous scope and complexity.” In an update by the GAO earlier in May 2004, the article states, “headway in meeting investigators’ concerns about management and oversight problems [ ] ‘has been slow.’ The update said major questions remained about the project’s cost and viability.” According to the article, “some of the cost estimates were outdated and the final price tag…could reach $15 billion by 2014.”

   According to the DHS, “[100]ost was…a major factor considered in the award decision.” Federal authorities may be interested, then, in an online posting by New York State’s Comptroller regarding its audit of an Accenture contract involving the Office of Children and Family Services (http://www.osc.state.ny.us/audits/allaudits/093003/093003-h/01r8.pdf). The posting, comprised of the Comptroller’s letter dated September 18, 2003, involves Contract C007546 which was awarded in May 1996 with a value of $37.5 million. The contract was to “design, develop, install and maintain the various software programs needed” for an automated statewide system “to track the tens of thousands of children receiving child welfare services” in New York State.

   According to the Comptroller’s letter, some of the Accenture releases “needed significant corrections and modifications,” and the contract “has been amended five times to provide the time extensions and significant additional funds needed to make these corrections and modifications.” The cost of the contract had risen to $97 million, with September 2005 releases to cost an additional $53.7 million. This means, according to the letter, that the “software will have cost a minimum of $150.7 million – about 300 percent more than the original contract cost – and will have taken almost seven years longer than expected.”

   Interestingly, Accenture has another online presence – regarding its extensive use of the H-1B program. One anti-H-1B internet site (www.h1b.info) states that, from October 1, 2002 – July 2003, Accenture had 220 approved labor condition applications, and 4,284 “total H-1B workers.” The vast majority appear to be information technology positions.

   Loopholes for Visa Waiver Entrants?

   A DHS press release issued June 1 states that “[b]y September 30, 2004, this process will also apply to visitors traveling under the visa waiver program [“VWP”] arriving at all air and sea ports of entry.” By December 31, 2005, US-VISIT will also apply to VWP travelers at all 165 land border crossings.

   A Fact Sheet also issued by DHS on June 1 states that an “extension is being sought to an October 26, 2004 deadline” requiring VWP travelers to hold machine-readable passports that incorporate biometrics identifiers. While the biometrics of a person can still be taken at the U.S. port of entry, there will be no backup consular biometrics to assure the identity of the traveler. Therefore it will be difficult, if not impossible, to verify the identity of persons traveling on the VWP until the machine-readable passport requirement is fully in place.

   Virtual Borders, Pseudo-Privacy?

   According to DHS, its goals in implementing US-VISIT are as follows:

   - enhance the security of U.S. visitors and citizens
   - facilitate legitimate travel and trade
   - ensure the integrity of the immigration system
   - safeguard the personal privacy of visitors

   In meeting these goals, the DHS press release of June 1 states that the “vision of US-VISIT is to deploy end-to-end management and sharing of data on foreign nationals covering their interactions with federal officials before they enter, when they enter, while they are in the United States, and when they exit. This comprehensive view of border management will eventually lead to the creation of a virtual border and will set a course for improved processes to manage and share data on foreign nationals.”

   It is precisely the sharing of information that causes some to be less sanguine about how data obtained under US-VISIT will be used. The May 24 New York Times article notes that “privacy advocates say they worry that the new system could give the federal government far broader power to monitor the whereabouts of visitors by tapping into credit card information or similar databases.”
   

2. AILA Warns Against Internet Revelation

   Finally, we share with our readers a recent advisory provided by AILA to its members. The advisory, titled Practice Pointer: Consider What Is On the Internet about Your Client” (Posted on AILA InfoNet at Doc. No. 04052661, May 26, 2004), offers sage advice to anyone in this information age and appears in its entirety below:

   “AILA is hearing of increasing instances in which information about clients found on the internet has been used against the client in the adjudication of cases. Numerous instances have been reported in which adjudicators questioned inconsistencies between employers' documents filed with a petition and information contained on the employer's website. Also, other adverse information about employers found on the internet has been cited in RFEs and denials.
   But use of the internet by adjudicators is not limited to employment-based petitions. Recently, a member reported receiving a Notice of Intent to Deny ("NOID") in a family-based case, in which the NOID used information revealed by the client on an immigration-related internet chat board to reach a finding of fraud. It is not clear how the adjudicator connected the email address used on the chat board with this particular client, but the adjudicator, without revealing why he was asking the question, did ask the client in the interview to confirm whether he used that particular email address.

   “Thus, attorneys may wish to consider, and perhaps address, what is on the internet about their clients, and may wish to question clients about whether they have discussed their case on a public message board.

   “A final caution on the use of the AILA message boards: as opposed to AILA's public site (aila.org), InfoNet is supposed to be open only to members of AILA. Federal government employees are not eligible for membership in AILA, and thus should not have access to InfoNet. Nevertheless, there have been a number of instances in which it has become clear that government officials have obtained access to InfoNet. This occurs either because former private attorneys have gone to work for the government and have not notified AILA of the change (and AILA has not otherwise become aware of the change), or because AILA members, in an attempt to curry favor with government officials, provide their passwords and access information to government personnel. Therefore, please be mindful of this when discussing cases and strategy on the message boards.”

   Comment

   It should not be surprising that inconsistencies between claims made in an employer’s petition and those available on an employer’s web site would be problematic. It should also not be surprising that any government agency would seek information from internet sources such as a chat board or other “public” forum by or about persons seeking its benefits. However, the prospect of government officials accessing information from the AILA web site presents a very different situation, and one that should be cause for alarm among all private attorney organizations whose members communicate in any online forum. We will be interested in learning how AILA addresses this grave intrusion into its online presence.