Copland and Brenner

Table of Contents

1. Redesigned Naturalization Test Takes Effect October 1
2. Domestic Disturbance
3. Scheduled Departure: Stalled at the Gate
4. In Brief: Recent Developments

1. Redesigned Naturalization Test Takes Effect October 1

   Applicants for naturalization are generally required to demonstrate an understanding of the English language, including the ability to read, write, and speak words in ordinary usage in the English language, as well as knowledge of U.S. government and history (civics). When required, testing is conducted during a naturalization applicant’s interview (examination) before a U.S. Citizenship and Immigration Services (“USCIS”) officer.

   There are limited exceptions to the English language and civics test requirements. For example, the English language requirement may be waived for an applicant who, on the date of filing the Application for Naturalization, Form N-400, was over 50 years old and has been a permanent resident for at least 20 years, or was over 55 years old and has been a permanent resident for at least 15 years. If either exemption applies, the applicant is not tested in English and may take the civics examination in his or her language of choice. In addition, an applicant who, on the date of filing the application, was over 65 years old and has been a permanent resident for 20 years, is not tested in English and qualifies to take a simpler version of the civics test in the applicant’s language of choice. Both the English language and civics requirements for naturalization are waived for applicants who are unable to comply with these requirements because of a well-documented medical or physical impairment.

   In a September 2, 2008 announcement on its web site, USCIS indicated that it has concluded a multi-year redesign of the civics and English language test given to naturalization applicants. Implementation of the new test will be phased in based upon filing and initial examination dates. The announcement points out that an application “is properly filed with USCIS on the date it is received by the appropriate USCIS Office with signature, correct fee, and the form is completed according to instructions.” Details are as follows:

   - for an application filed prior to October 1, 2008 with initial examination before October 1, 2008: the applicant will be given the current test; if the applicant fails the first exam he or she will be readministered the current test at a subsequent examination
   - for an application filed prior to October 1, 2008 with initial examination on or after October 1, 2008 until October 1, 2009: the applicant may choose to take either the current test or the redesigned test; if the applicant fails the first exam, USCIS will readminister the same version of the test initially taken by the applicant
   - for an application filed on or after October 1, 2008 with initial examination on or after October 1, 2008: the applicant will be given the redesigned test
   - for an application filed at any time with initial examination on or after October 1, 2009: the applicant will be given the redesigned test

   At this writing, USCIS has not yet issued a formal press release announcing the impending implementation of the redesigned test. A press release and Frequently Asked Questions were previously issued on September 27, 2007, but it is questionable as to how many prospective naturalization applicants marked their calendars with applicable dates at the time. The September 2, 2008 announcement appears under “What’s New” on the agency’s main web page, http://www.uscis.gov/portal/site/uscis, on a link titled “USCIS Reminds Naturalization Applicants of the New Naturalization Test.” From that link, interested persons can locate additional information regarding the redesigned test, including vocabulary for the reading and writing portions, civics questions and answers, an information brochure, scoring guidelines, and a 236-page “overview of the development of content items” for the civics test, titled Naturalization Test Redesign Project, Civics Item Selection Analysis .

2. Domestic Disturbance

   The American Immigration Lawyers Association (“AILA”) has notified members that its liaison committee with U.S. Customs and Border Protection (“CBP”) “is aware that certain individuals, traveling both domestically and internationally, are being prevented from boarding flights, and, in some circumstances, are being detained and placed in [immigration court] proceedings, when the individual is not in possession of a facially valid visa, I-94, or [green] card. This appears to be occurring even though the individual is in a valid status, such as an alien who has a pending or approved application to change or extend status, a pending I-90 application for a replacement [green card], or has filed an I-751 Petition to Remove the Conditions of Residence.” Notwithstanding Transportation Security Administration (“TSA”) information that its role is limited to confirming a traveler’s identity, and due to accounts from travelers that this is not the case, the liaison “committee is seeking to determine which agency,” CBP or the TSA, is making such determinations.

   We note that the TSA announced at various points during 2007 that its Transportation Security Officers (“TSO”) would begin to assume travel document checking responsibilities from airline contractors for certain domestic flights, and has since expanded this role nationwide. TSO’s conduct document checks with ultraviolet lights and magnifying loupes to evaluate whether those presented by passengers are legitimate, while Behavior Detection Officers (“BDO”) screen travelers for involuntary physical and physiological reactions that indicate stress, fear, or deception. It is clear from the “success stories” on its web site that TSO and BDO suspicions regarding documents and behavior are referred to law enforcement authorities – be it the FBI, local law enforcement agencies, or U.S. Immigration and Customs Enforcement (“ICE”).

   It should be noted that TSA activities are not limited to air travelers, passenger gates - or even airports. Rather, the TSA role has expanded to other facilities that are part of mass transit systems. For example, using its Visual Intermodal Prevention and Response (VIPR) teams, the TSA has conducted “security checks” at all areas contiguous to terminals (including the taxicab staging area, sky cap stations, and short term parking structure) at the Salt Lake City International Airport (December 2007); New York City’s Brooklyn Battery Tunnel (November 2007); Grand Central Station (October 2007); the Point Judith (Block Island) Ferry Terminal in Rhode Island and the Cape May-Lewes Ferry in Cape May, New Jersey (May 2007); as well as various Amtrak and other mass transit facilities.

   Accordingly, a word to the wise: using any mass transit system with fraudulent, expired, or otherwise questionable documentation may lead to significant difficulties in reaching one’s desired location – and may result in an unwanted trip to an entirely unintended destination. Those traveling domestically with expired U.S. immigration documents are well advised to do so only if they are also in possession of a USCIS receipt notice confirming that an appropriate application to extend, renew or change status is pending with that agency.

3. Scheduled Departure: Stalled at the Gate

   As we reported last month, U.S. Immigration and Customs Enforcement (“ICE”) announced on July 31 the launch of a pilot program called “Scheduled Departure,” to begin in early August. The program was intended to allow “fugitive aliens who have no criminal history and pose no threat to the community an opportunity to remain out of custody while they coordinate their removal with ICE.” Five cities were initially slated for inclusion in the program (Santa Ana and San Diego, California; Phoenix; Chicago; and Charlotte) through August 22, after which it would presumably expand.

   Instead, however, ICE discontinued the program after only eight aliens turned themselves in to the agency. An August 22 article, published at The Daily Journal.com and announcing the program’s termination, quotes Jim Hayes, ICE acting director of detention and removal operations, as stating, “We are going to continue our enforcement of immigration law whether it is convenient for people, or whether it’s not convenient.” That same article indicates ICE spent $41,000 to advertise the program, with director Hayes stating this had saved the government money “because the cost of detaining the eight who turned themselves in would have been $54,000.” (Not mentioned is how the eight would have been apprehended but for the program.)

   The agency’s early termination of the program did not receive nearly the attention of its July 31 announcement, which is still on the ICE web site under its “Top Stories” link. A search on the ICE web site for “scheduled departure” brings up five documents about the program; none, however, indicate that the program has been terminated.

4. In Brief: Recent Developments

   New Form I-751, filing locations: In an update on August 25, 2008, USCIS announced that it had revised Form I-751 (petition to remove conditions on residence) as well as applicable filing instructions. “Effective immediately, all petitioners filing a Form I-751 must file with the California or Vermont Service Center, depending on the state in which they reside.” Notwithstanding the reference to being immediately effective, there is a grace period of sorts: “[b]eginning September 24, 2008, USCIS will only accept the revised form dated August 25, 2008, and will reject previous versions of the form as well as petitions filed with the incorrect Service Center.” The revised form bears the legend “Form I-751 (Rev. 08/25/08) N” in the lower right hand corner. Further details, including the revised form, instructions, and a listing of Service Center jurisdiction over various states may be found at www.uscis.gov, and clicking on the link to “Immigration Forms.”

   WHTI Update: With fall in the air, the season brings football and...kickoff of a U.S. Customs and Border Protection campaign to educate the public about travel document requirements under the Western Hemisphere Travel Initiative (“WHTI”). A two-month blitz of agency outreach began on September 4 during the National Football League’s first game of the season.

   As part of the WHTI, U.S. citizens will be required to present a single document denoting both identity and citizenship when entering the U.S.A. by land or sea borders effective June 1, 2009. A U.S. passport will satisfy WHTI requirements. Information regarding how to apply for a U.S. passport is available on the Department of State (“DOS”) web site, at http://travel.state.gov/passport/passport_1738.html. Only a U.S. passport may be presented for air travel between the U.S.A., Canada, Mexico, the Caribbean, and Bermuda; a passport may also be presented by those traveling by land or sea.

   There are alternatives to a passport that might appeal to those traveling by land or sea between the U.S.A., Canada, Mexico, the Caribbean, and Bermuda. One is the U.S. passport card, a document issued by the DOS. Production of passport cards began on July 14, and more than 350,000 have reportedly been adjudicated. A passport card may be desirable for those living close to U.S. borders and making frequent crossings, as it is somewhat easier to carry and is less expensive. First-time applicants must pay a fee of $45 (adults) or $35 (minors); the cost for adult applicants already in possession of a valid traditional passport is $20. Additional information regarding the U.S. Passport Card - where and how to apply, fee information, and required forms - is available on the DOS web site at http://travel.state.gov/passport/ppt_card/ppt_card_3926.html.

   Another alternative – again, limited to use for land and sea travel – is an enhanced state driver license that complies with WHTI requirements. New York State’s Department of Motor Vehicles web site states that, on September 16, 2008, it will begin to issue WHTI-compliant enhanced driver licenses (“EDL”) or non-driver photo ID cards “to applicants who can prove U.S. citizenship and NYS residency.” An EDL will serve as both a driver license and a travel identification document for travel. More details are available on the DMV web site, at http://www.nydmv.state.ny.us/edl.htm.

   Reminder to our U.S. Citizen Readers: November 4, 2008 is election day. Prepare by familiarizing yourself with candidate positions, and exercise your right to vote.