Philadelphia Immigration Lawyer Blog

On March 2, 2009, the Eleventh Circuit Court of Appeals issue a good decision in a Visa Waiver Program case involving the removal of an individual who was never shown by the government to having knowingly waived his right to a hearing before an Immigration Judge in removal proceedings despite having entered the U.S. on the Visa Waiver Program. Unfortunately, the individual in question was, in fact, removed by the government during the pendency of the litigation. Still, the case provides further evidence that federal courts will not stand by while the government tries to prevent the courts from protecting the due process rights of Visa Waiver entrants.

The case is Mokarram v. U.S. Attorney General (not precedential) and the facts, briefly, are as follows: Mokarram entered the U.S. under the Visa Waiver Program in 1988 (then called the Visa Waiver Pilot Program) when he was only 12 years old. He was issued an I-94, marked “WT”, the old designation “waiver/tourist”. He was picked up by the police years later on a state traffic violation and issued a “Notice of Intent to Deport” for having overstayed his entry on the Visa Waiver program. The government claimed that Mokarram waived his right to a hearing before an Immigration Judge, except to apply for asylum, and sought to immediately deport him.

Mokarram filed a Petition for Writ of Habeas Corpus which was then transferred to the Court of Appeals and treated as a Petition for Review.

The Court of Appeals held that there was absolutely no evidence that Mokarram ever knowingly waived his due process rights to a hearing before an Immigration Judge or to contest the removal action, despite his Visa Waiver status. The Court rejected the government’s “entry-ergo-waiver logic”—the idea that every single Visa Waiver entrant must be presumed to having knowingly waived his or her due process rights. On the contrary, the Court presumed that Mokarram did not waiver his rights, absent some showing by the government that he had. In this case, the government had no such evidence. The Court remanded the case back to the Department of Homeland Security on the issue of whether Mokarran was prejudiced by the DHS’ violation of his due process rights.

The case illustrates the importance of a Visa Waiver entrant who has been detained for removal purposes in getting to federal court fast and filing an emergency motion for a stay of removal there. As I noted above, Mokarram was, in fact, removed during the case and so to some extent the decision is a hollow victory for him. The case is very helpful, however, for other Visa Waiver entrants who may find themselves being served with a Notice of Intent to Remove.

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I was recently consulted about an issue that seems to cause a lot of confusion - - and potentially big problems - - for individuals who arrive at a U.S. point of entry and get their I-94 forms stamped with an expiration date much earlier than the end date on their USCIS approval notice on the underlying visa petition.

For example, if an H1b petition is approved for a three year period by the USCIS, then in most cases, the I-94 will be stamped with an expiration date right to the end of that same 3 year period. But not always.

If, for example, the H1b visa holder’s passport expires before the USCIS period of authorized stay, then the I-94 is going to be stamped with an end date only to the end of the passport’s validity.

Sometimes, the Customs and Border Patrol officer at the point of entry simply makes a mistake. For example, he or she may stamp the I-94 with the date of the visa’s expiration. The visa’s expiration date may only be a few months beyond the date of entry rather than the full USCIS three year authorized period.

The bottom line is that you must always carefully check your I-94 at every single one of your entries into the U.S. If the date appears to be incorrect, ask about it right then and there and perhaps the problem can be resolved.

If the matter can’t be resolved, consult an immigration attorney. I have recently had two separate I-94 errors corrected by returning to the Philadelphia International Airport with a client, meeting with the CBP and explaining the clear error. In both cases, the CBP officer corrected the error.

Keep in mind that the expiration date on your I-94 is the end date of your period of authorized stay, even it’s sooner than the end date on your USCIS approval notice. You must depart the U.S. on or before the end date of your I-94 or else you will be in a period of unauthorized stay, facing the penalties imposed for those who overstay.

So check those I-94 forms every single time.

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Frequently, holders of B-1 and B-2 visitor visas ask my assistance in requesting extensions of their visas, usually for an extra six months. Often, however, it takes the USCIS at least that long to make a decision on the application (the I-539), leaving the applicant wondering whether he or she must depart the U.S. so as not to incur any period of unlawful presence.

The Vermont Service Center has now issued some guidance on this very issue. It has stated that it will adjudicate an approvable extension application to the date of approval, plus one day, where the adjudication takes place after the requested extension date has been reached – but only if the requested date was for a period of no more than 6 months.

Unfortunately, even this assurance still exposes an applicant to being unlawfully present.

To be absolutely safe, a B-1 B-2 extension applicant should depart the United States prior to adjudication on the extension application. Alternatively, the applicant should file a second I-539 and include a copy of the receipt notice of the first, still-pending extension application. If the applicant files for this 2nd extension, he or she should also provide a good explanation as to why they will not be able to depart within the original time requested and they should provide written documentation to support their claim.

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As of November 17, 2008 seven new countries have been added to the Visa Waiver Program (VWP) which allows eligible citizens of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. The 7 new countries are: the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, and Slovakia.

Citizens of countries eligible to travel to the United States under the VWP prior to November 17, 2008 are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

So now, there is a total of 34 countries are participating in the VWP.

As of November 17, 2008 the eligible citizens from these seven new countries must obtain approval through the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States under the VWP and starting January 2, 2009, eligible citizens or nationals from all VWP countries will be required to obtain approval through ESTA prior to traveling to the United States under the VWP.

Here is a fact sheet explaining the ESTA and the link provides the necessary ESTA forms.

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On August 13, 2008, Customs and Border Patrol announced that the Global Entry pilot program has now been expanded, effective August 1, 2008, to the following airports: Los Angeles International Airport, Los Angeles, California (LAX); Hartsfield-Jackson Atlanta International Airport, Atlanta, Georgia (ATL); Chicago O'Hare International Airport, Chicago, Illinois (ORD); and Miami International Airport, Miami, Florida (MIA).

Also, CBP announced that although the Global Entry pilot is currently operating at Terminal 4 of John F. Kennedy International Airport in New York (JFK), it will now become operational at the remaining terminals of that airport as well.

Here is an explanation from one of my earlier postings about the Global Entry pilot program.

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The U.S.C.I.S. announced on August 8th that the new U.S. Passport Card may be used as a List A document in the employment eligibility verification I-9 process. As a List A document, the new Passport card is valid for I-9 purposes for both identity and work authorization.

For travel purposes, the Passport Card provides a cheaper alternative to the traditional U.S. passport book and expedites document processing at United States land and sea ports-of-entry under certain limited situations: for U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda (it can’t be used for international air travel).

With this new announcement, U.S. employers can now accept the card as List A, I-9 document.

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The Department of State and the Department of Homeland Security announced on July 22, 2008 that the new U.S. Passport Card is now being distributed. The Passport Card is a wallet-sized document for land and sea travel between the United States and Mexico, Canada, the Caribbean, and Bermuda—note that it is not valid for international travel by air.

About 350,000 Americans pre-ordered the U.S. Passport Cards and so far about 7,600 cards have been mailed out to advance customers. All pre-orders are expected to be filled by September 30, 2008 and then, after that, the processing time will take about the same as for U.S. passports—about 4 weeks.

The Passport Card will make it a whole lot easier for Americans who live in border communities to regularly travel back and forth over the border.

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The Administrative Appeals Office (AAO) has issued a ruling that really hammers home the basic requirements that if you are filing for a re-entry permit, you have to do it while you are still physically in the U.S. The regs make it very very clear that you must be physically present in the United States when you file the I-131 for a re-entry permit.

The Appellant in this AAO case made the argument that because he filed his I-131 before the expiration date of his then current re-entry permit period—even though he was out of the U.S. when he filed, his I-131 should still be approved. He left the U.S. on February 28, 2006 when his re-entry permit was still valid to April 28, 2006 and he filed for a re-entry permit, from outside the U.S., on April 24, 2008.

Basically, he was arguing that he was extending a previously granted re-entry permit.

But the AAO said the regs were clear. There is no reg that allows for an “extension” of a re-entry permit. Once a re-entry permit is no longer valid, then that re-entry permit must be surrendered to the U.S. and only then, when the applicant is still physically in the U.S., will a new re-entry permit be granted.

Bottom line: there is no exception to the physical presence requirement for filing an I-131 re-entry permit.

Of course, the AAO also pointed out that all is not lost for the applicant—if he or she did not get a re-entry permit in advance of being outside the U.S. for a period of more than one year, then they can contact a United States consulate abroad to learn how get an appropriate document in order to be allowed back into the U.S. More on that in my next entry.

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Here is one last posting on the issue of re-entry permits. Here is the first entry and here is the second entry. The point of the postings has been that re-entry permits are not a guarantee of re-entry for a lawful permanent resident who has one but whose actions do not reflect an intent to maintain their status. The case is Moin v. Ashcroft, decided by the Fifth Circuit Court of Apeals in 2003.

Moin was a native of Pakistan who obtained her permanent residency in August, 1991 but who, two months later, returned to Pakistan. She did so at the urging of her parents to consider marriage proposals and to then get married. She intended to be out of the U.S. for only a few months but she was gone for almost one year. While in Pakistan, Moin married with the traditional wedding ceremony and related cultural events lasting for three months and she then had a child there. She returned to the U.S. in October, 1992, alone because her husband and child did not have a visa to come with her.

She promptly returned to Pakistant to be with her husband and very ill child who tragically died. She did not return to the U.S until November, 1994. She returned did return on her re-entry permit. She left again in February, 1995, at the urging of her husband, had another child and did not return to the U.S. until February, 1996.

When Moin lived in the U.S. she lived with her parents, had only a few personal items at their home, did not own any real estate in the United States and had no verified employment here. On the contrary, in Pakistan, Moin was joint owner with her husband of two shops and an apartment in Pakistan; owned a car there and her husband purchased a home there.

Finally, in May, 1996, Moin returned to the U.S. with her son, presented her green card in order to be admitted but was ultimately placed in removal proceedings on the grounds that she had abandoned her permanent residency.

The Immigration Judge ordered her removed and the Court of Appeals agreed. The Court held that the case depended on whether Moin’s trips to Pakistan really qualified as “temporary trips abroad” which it defined as a trip for a "relatively short" period, fixed by some early event; or a trip that will end when some event happens that has a reasonable possibility of happening within a relatively short period of time.

Moin said her trips were temporary—she was never gone for more than 2 years and she had a valid re-entry permit. But the court said that a reentry permit does not guarantee return if the permanent resident is found to be inadmissible because of abandonment.
Moin also said that she always really intended to reside permanently in the United States. But the Court said even if that was her “ultimate” intent, what counts was her intent to return to the United States within a relatively short period. Her desire to maintain her status was not the issue, her actions were.

Interestingly, the Court expressed sympathy of Moin’s predicament—her husband and child were unable to obtain visas and Moin’s unfortuante choice was not live apart from them or possibly lose here green card. Nonetheless, the Court dismissed her appeal and affirmed the
Order of Removal.

The case highlights the importance of re-entry permits—and their limitations. They are absolutely essential to have and yet they are limited in value under the wrong set of circumstances. They are not guarantees of entry if an permanent resident’s actions are not consistent with a true intent to maintain their permanent residency status. Maintaining that green card status during a lenghty trip abroad requires not only the re-entry permit but also requires taking other steps beginning on the very day one becomes a permanent resident and throughout to develop and retain sufficiet ties to the U.S.

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This is a follow up to my posting on July 8 on the issue of re-entry permits and being careful, even though one may have a re-entry permit, about not acting in a manner that results in one abandoning his or her permanent residency.

In that entry, I said I would follow up with specific real-life cases in which certain permanent residents engaged in behavior that caused them to lose their permanent residency or not. Here are some of those cases.

In Singh v. Reno, a 1997 case, the permanent resident obtained permanent residence in December, 1990 but then spent only about one third of his time in the U.S. before he was placed in removal proceedings in July, 1993. He spent the time overseas with his wife and daughter who were both waiting for immigrant visas, while he was in the U.S. he lived in temporary, employer provided housing and he re-entered the U.S. four times on a visitor visa rather than on his green card. The court held that his visits were not just temporary even though he was never out of the U.S. for more than one year and that he has abandoned his permanent residency.

In another case, Hana v. Gonzales, a 2005 case, the permanent resident was held not to have abandoned her permanent resident status. She was granted a green card in May, 1992 and several months later she returned to Iraq to continue with her job there with a bank and to be with her husband and four children for whom she had filed for immigrant visas. She was concerned that the government of Iraq would harm her family if she did not return and she also needed to care for her ailing mother-in-law. She did obtain a re-entry permit but when she tried to re-enter the U.S. on that re-entry permit in December, 1996, she was detained and charged with being inadmissible.

Although she had no family or property or job in the U.S., the court still held that she did not abandon her permanent residency because it said that she had a genuine concern about her family’s safety and she needed to be in Iraq to care for her mother-in-law.

Continue reading "I-131 Re-entry Permits - Part 2. Real Life Cases on Abandonment of Permanent Residency" »

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The other day I posted an entry on the topic of re-entry permits and the issue of biometrics scheduling. The Form I-131 application for a re-entry permit must be filed by a permanent resident while he or she is physically in the U.S. and since biometrics are now required (something that may not be scheduled for weeks after the I-131 application is filed), the delay can wreak havoc on the applicant’s travel plans. Here is the prior posting.

I thought it would be helpful, in my next postings over the next few days, to review some other basics of re-entry permits and clear up some misconceptions about the protections a re-entry permit may or may not provide.

First and foremost, possession of a re-entry permit does not guarantee entry into the U.S. If a permanent resident departs the U.S. with the intent of remaining outside the U.S. for a period of more than one year, he or she must have a re-entry permit in order to re-enter. However, just because they do does not mean that Customs and Border Protection cannot still deny entry. On the contrary, CBP can still find that the permanent resident has abandoned their permanent residency. The re-entry permit simply means that CBP cannot use the absence of more than one year alone as a reason to deny entry.

If CPB determines that it was the intent of the permanent resident to abandon his status then entry will be denied, re-entry permit or not. The intent of the permanent resident is what controls. The only way to determine one’s intent is to look at all the circumstances surrounding the temporary trip abroad.

Was the trip for a relatively short period of time that is fixed by some event that will take place relatively soon? If the trip was not fixed in time, did the trip end when something specific happened that was expected to happen soon? If the trip was not fixed in time or did not end soon after some event happened, did the permanent resident still really always intend to return nonetheless? For example, did the permanent resident maintain family in the U.S., a home or other real estate, business ties, etc. How long had the person been a permanent resident, what ties does the person have in the foreign country, etc.

All of this sounds very theoretical, so in my next posting, I’ll give some specific examples of people who have been determined to have abandoned their permanent residency and others who were ok.

Some think that a very safe thing to do is obtain a re-entry permit even for a visit that is not expected to last more than a year. Whether this is really necessary can only be determined on a case-by-case basis and with any question about a re-entry permit, a permanent resident should consult with an immigration attorney before leaving the U.S.

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I posted an earlier blog entry about the Global Entry program that allows for certain “low-risk” U.S. citizens and U.S. permanent residents a means to enter the U.S. in an expedited and automated way—without the usual airport delays. The program began on June 6 at John F. Kennedy International Airport in New York, George Bush Intercontinental Airport in Houston, and Washington Dulles International Airport. Here is the earlier posting.

On June 24, it was announced that U.S. Customs and Border Protection has signed a joint agreement with the government of the United Kingdom to develop a bilateral program that will eventually make low-risk frequent travelers from the UK to the U.S. also eligible to apply for the program as soon as later this year. And vice versa—low risk U.S. citizens and permanent residents of the U.S. traveling to the U.K. will have reciprocal benefits. The reciprocal agreement is the “International Expedited Traveler Initiative” and it will integrate CBP’s Global Entry program with the U.K. registered traveler program.

The reciprocal program will be similar to other “trusted traveler” programs such as NEXUS (which allows expedited processing into the U.S. and Canada at the land border and at Canadian pre-clearance airports) and SENTRI (which provides for dedicated processing at the U.S.-Mexico land border).

The agreement with the U.K. is also similar to an agreement that CBP signed with the government of the Netherlands on May 19 to integrate CBP’s Global Entry program with the Dutch “Privium” program.

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The USCIS has provided some useful and practical information on the new, often confusing, requirement that I-131 applicants for a re-entry permit remain in the U.S. for the scheduling of their biometrics, something that is now required for such applications.

The I-131 application for a re-entry permit must be filed by a permanent resident while he or she is physically present in the U.S. and previously, applications for re-entry permits did not require that biometrics be taken. The I-131 applicant could file the application and then immediately leave the U.S. and have the approved re-entry permit mailed to them overseas.

Now biometrics are required for re-entry permits and this presents permanent residents with the problem of having to actually remain in the U.S. for another 4 or 5 weeks after filing the I-131 while waiting for the USCIS to schedule the biometrics appointment.

The USCIS has now clarified a few points. First, the USCIS states that for normal I-131 re-entry permit processing, applicants will be scheduled for a biometric appointment in approximately three to four weeks after filing the I-131. However, expedited processing can be requested through the Nebraska Service Center on a case-by-case basis. The instructions for requesting an expedited application are on the I-131 Instructions.

Also, if someone needs the biometrics to be taken during a particular time period (for example, July 10-July 17), the USCIS will accommodate the request if legitimate circumstances warrant exceptional handling of the application.

A request can also be made to have biometrics taken in an area of the country other than where the original ASC appointment was scheduled. If a change in location is required, the request should be noted and explained in the rescheduling request.

Finally, the USCIS has clarified that if an applicant has had their biometrics taken in connection with another application (for example, an I-485 adjustment of status application) within the past 15 months, those biometrics usually can not be used for the I-131 application. According to the USCIS: “For application types that require biometric images (photograph, signature, and press print) as well, such as the I-485 and the I-131, in most cases a new set of biometric images must be captured to associate with each application”.

The USCIS notes, of course, that if an applicant successfully reschedules their biometrics appointment, the delay will also delay action on the I-131 itself.

Hopefully, this will clarify some of the confusion about how to best deal with the scheduling problems that result when an I-131 re-entry permit applicant doesn’t have the time to wait in the U.S. for the usual biometrics scheduling.

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On May 27, 2008, Customs and Border Protection announced three specific changes to the “International Registered Traveler" (IRT) program which will allow for expedited clearance for certain pre-approved, low-risk air travelers into the U.S. which it previously announced on April 11, 2008.

I previously described the program in an earlier blog, here.

The first announced change is to the name of the program itself—the new name is “Global Entry”.

The second change is that the program will start on June 6, 2008 which is four days earlier than the date announced in the April 11, 2008.

Finally, the new notice updates the contact information for the Enrollment Center at Washington Dulles International Airport, Sterling, Virginia. The new telephone number for that location is 703-661-2854; the new fax number is 703-661-0013.

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Customs and Border Protection (CBP) has announced that in early 2008, it received approximately one million I-94 Arrival-Departure cards that were misprinted—the cards were missing a digit. Keep in mind that an I-94 card should have eleven digits, comprised of nine digits, a space, and then two more digits.

It is not known exactly how many of the misprinted cards were actually issued to travelers but clearly many were because some people have reported problems in obtaining a Social Security number because the SSA will not issue a number to someone with what appears to it to be an incorrect number.

All of the misprinted I-94 cards have been recalled now and CBP has announced that anyone with a misprinted I-94 card can request that CBP issue a new card either through Deferred Inspection or at a Port of Entry.

Here is a helpful FAQs from CBP on the basics of the I-94.

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On April 12, U.S. Customs and Border Protection began processing applications for the Global Entry pilot program. The program is intended to expedite processing for low-risk, frequent international travelers entering the United States.

The actual start of the program will be June 10 at JFK International in New York, George Bush Intercontinental Airport in Houston and Washington Dulles International Airport.

The Global Entry program will be available for U.S. citizens and lawful permanent residents who travel internationally on a frequent basis and who have no criminal record or customs or immigration offense.

Applications for enrollment in the Global Entry program are available through the Global On-Line Enrollment System (GOES) here Global Entry Program – Applications Are Available Now!

Basically, the process has three steps:

• An applicant must complete and submit an on-line application through GOES and pay a $100 fee. Pay.gov

• CBP officers will review the applicant’s information and conduct a background investigation.

• Finally, the applicant will undergo an interview with CBP officers at an Enrollment Center at JFK, Houston or Dulles Airports.

When the Global Entry passenger returns to the U.S. after international travel, he or she will be able to bypass the regular passport control line and go directly to the Global Entry kiosk. They will then insert their passport or U.S. permanent resident card into the document reader and be directed to electronically provide their fingerprints which will then be compared with biometric data already on file. Their digital photograph will also be taken.

The traveler will be prompted to answer several CBP declaration questions and then, once the process is successfully completed, he or she will get a transaction receipt which they will present to the CBP officer as they leave.

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On April 7, 2008, the Bureau of Customs and Border Protection announced the details of the new international registered traveler program which is called the “International Registered Traveler” (IRT). The idea is to create a way to expedited clearance of certain pre-approved, low-risk, “trusted” air travelers into the United States. The pilot program will be started at JFK International Airport in New York; George Bush Intercontinental Airport in Houston and Washington Dulles International.

Applications for the program should be submitted on May 12, 2008 and the pilot will actually begin on June 10, 2008. The pilot is expected to last at least six months, depending on how it’s evaluated in practice.

Applications must be submitted electronically and the application itself is available through the Global On-Line Enrollment System (GOES) at www.cbp.gov. Applications must be completed and submitted electronically.

The procedures described by CBP involve an IRT participant as being able to go directly to the airport’s Federal Inspection Services (FIS) area where he or she will then proceed directly to the IRT kiosk. The IRT participant will not have to wait in the regular passport control primary inspection lines. The person will activate the system by inserting either a machine-readable passport or a machine-readable U.S. permanent resident card into the document reader (the program will be open to both U.S. citizens and permanent residents). The screen will then guide the participant through an electronic fingerprinting process to confirm that they are in fact an IRT participant, a digital photo will be taken and then several customs declaration questions will be asked by use of a touch-screen. A receipt will then be issued which the IRT particiapnt will then give to a CBP Officer at the exit control.

The CBP will reserve the right to subject any IRT participant to any further inspection as necessary.

Here is the detailed CBP announcement that provides details about eligibility requirements, the selection process )(which will include an interview), the fee for applying ($100.00), and the complaint process if you apply but are then rejected.

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On March 27, 2008, DHS announced the final rule for the land and sea portion of WHTI (the Western Hemisphere Travel Initiative).

The WHTI final rule requires travelers to present a passport or other
approved secure document denoting citizenship and identity for all land and sea travel
into the United States and the requirements are effective June 1, 2009. The DHS is giving plenty of notice so that everyone has time to get themselves a WHTI-compliant document.

When it announce the final rule, DHS also announced that it is designating the
Washington State Enhanced Driver’s License (EDL) a WHTI-compliant document and as of March 24, Washington State had already scheduled more than 18,600 appointments for EDL interviews and issued more than 6,400 EDLs.

The new Passport Cards (see me earlier blog about them) are WHTI-compliant and the Department of State is already accepting applications for them.

The DHS announcement comes about two months after January 31, 2008, when DHS ended acceptance of oral declarations alone of identity and citizenship at the land borders. Since then, U.S. and Canadian citizens ages 19 and older have been asked to present proof of identity and citizenship. Children ages 18 and under are currently asked only to
present proof of citizenship, such as a birth certificate. The change was the first step in implementing WHTI fully on June 1, 2009 when travelers will be required to present a single WHTI compliant document denoting both citizenship and identity when seeking entry into the United States through a land or sea border. (The WHTI secure document
requirement is already in place for all air travelers.)

Here is a link to the DHS Question and Answer Fact Sheet on WHTI.

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The Visa Waiver Program has been in the news recently. While new countries have been recently welcomed into the program (for example, the Slovak Republic, Estonia and Latvia), Congress, with Senator Diane Feinstein chairing, recently held hearings on perceived problems with the program. It’s a good time to review some of the basics of the program.

Someone who enters the US on the Visa Waiver Program has 90 days to stay in order to visit the U.S. If you stay longer than the 90-day limit by more than 180 days but less that 365 days and then leave the U.S. you will face a three-year bar from re-entering the US. If you overstay the 90-day period by one year or more and then leave, you are going to be barred from re-entering for tens years.

This does not mean that you get 90 days and then an extra 179 days! If you overstay the 90 day period by just one day and then leave, while you won’t be subject to the three year ban, you are probably going to have a difficult time re-entering later on. You won’t be able to get back in under the Visa Waiver Program. You will have to apply for a B-2 visitor’s visa at a U.S. embassy with all that that entails (proof of your foreign residence that you will be returning to, etc) and you can expect the application to be carefully scrutinized. The bottom line is—don’t overstay.

What if you overstay on a Visa Waiver Program entry and then are apprehended by Immigration and Customs Enforcement? You can be removed from the U.S. without a hearing before an Immigration Judge and, regardless of how short or long your overstay, you’ll be subject to a ten-year bar on your re-entry.

You definitely cannot work in the U.S. while here under the Visa Waiver Program; if you do, you're going to be inadmissible to the U.S. in the future almost without exception.

You can’t extend the 90-day visa waiver period unless you have a really compelling reason (such as a serious health issue) for asking for an extension.

You also can’t change or adjust your status if you enter the U.S. under the Visa Waiver Program, unless you are trying to do so on the basis of a I-130 petition by an immediate relative. But you need to be very careful about this. You cannot enter the U.S. under the Visa Waiver Program if you really have immigrant intent such an really intending the have a U.S. relative file an I-130 for you so you can stay.

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Citizens of Estonia and Latvia are on their way to being able to travel visa-free to the United States. On March 12, 2008, each country signed a memorandum of understanding with the U.S. on visas and increased air security which will eventually lead to visa-free travel for their citizens to the U.S. under the Visa Waiver Program.

The bilateral visa waiver deals are controversial with European Union officials based in Brussels who want to be the sole negotiators in convincing the U.S. to extend the Visa Waiver Program to all 27 EU member nations. They are not happy with bilateral deals like these. But Estonia and Latvia are only doing what the Czech Republic did earlier this year and what Hungary is expected to do later this year. They are among the 12 countries that have joined the EU since 2004 (all former communist nations in eastern Europe) that are frustrated with Brussels’ slow progress on the issue of visa waivers.

The bottom line is that by the end of this year citizens of Estonia and Latvia should no longer need visas to travel to the United States.

The Visa Waiver Program, which was established in 1986, allows nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. The whole point is to eliminate unnecessary barriers/red tape to travel and encourage tourism. Countries qualify for the program if they do things such as provide reciprocal visa-free travel for U.S. citizens, issue secure machine-readable passports and have a very low rate of nationals who are denied admission to the U.S. or who otherwise violate the terms of their admission to the U.S.

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The U.S. Customs and Border Protection has just issued a useful reminder for Spring Breakers (and all other travelers of course) about making sure they have proper documents when leaving and when returning to the U.S. following a spring break trip to Canada, Mexico, Bermuda or the Caribbean.

All travelers, including U.S. and Canadian citizens, must now present proof of citizenship and identity to enter the United States at land and sea ports of entry. Your word is no longer good enough. The proof can include a passport, trusted traveler program card like NEXUS or SENTRI, or a birth certificate with a driver’s license. Travelers 18 years and younger can present just a birth certificate.

If you’re traveling by air, a passport is required for all travelers entering and departing the United States (actually that’s been a requirement since January, 2007).

The CBP is also reminding U.S. lawful permanent residents that their I-551 form (their green card) is acceptable for land and sea travel into the U.S.

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The USCIS has issued revised instructions for Form I-131, Application for Travel Document. Applicants for re-entry permits and refugee travel documents will, effective March 5, 2008, be required to provide biometrics (fingerprints and photographs) at a USCIS Application Support Center. Here are the new instructions and here is the new Form I-131.

The USCIS will notify applicants of their appointment after the I-131 application is filed.

The practical effect of the change will be that applicants will need to plan well in advance of their travel date so that they have enough time in between the filing of the I-131 and the biometrics interview.

The new instructions also provide guidance on how to request expedited processing when necessary--submitting pre-paid express mailers with the I-131 for USCIS to send the applicant his or her receipt and ASC appointment notice, and the completed Re-entry Permit or Refugee Travel Document when and if approved.

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Recent news that AMTRAK is increasing security on its trains as well as stories that DHS agents are profiling "foreign-looking" AMTRAK passengers and demanding to see identity documents serves as a reminder to permanent residents to always carry their green cards with them.

First of all--it's the law.

Secondly, and as a practical matter, if you are singled out on a AMTRAK train or a Greyhound bus and you don't have your green card on you, you're inviting big problems. At the very least, you're in for inconvenience and hassle; at worst, you could be detained.

Carry your green card with you at all times (and your immigration attorney's business card just in case there is still a problem). If you're not a green card holder but are otherwise here legally or if you have a petition or application pending to get yourself legal, carry proof of that with you--for example, copies of Immigration Court orders, I-797 Receipt Notices, copies of petitions, etc - anything that shows your legal status or your pending legal status.

Be careful out there.

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The States Department has announced that its new “U.S. Passport Card” can be applied for starting February 1, 2008 but the Card really only seems to have benefit for border residents who regularly and frequently cross the border.

It can only be used at land and sea ports of entry (NOT airports) and only when arriving from Canada, Mexico, the Caribbean or Bermuda. It’s basically intended to be an easier and less expensive alternative to a traditional passport but only for a very specific group—border residents who don’t otherwise have a need for a traditional passport.

The Card can be applied for starting on February 1 and the State Department says they will start being issued in the Spring.

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It is often required when filing for adjustment of status or when applying for admission to the United States that the applicant prove that he or she did not overstay a prior period of authorized stay in the United States.

Theoretically, that should be easy. When the person previously left the U.S. by air or sea, they would have turned in their I-94 and the fact of their timely departure would have been recorded in the DHS database. The I-94 is also known as an Arrival/Departure Record and upon entry into the United States, it's endorsed with one's date and place of arrival, one's status (for example, F or H or L) and the end date of one's authorized stay (usually a specific date but sometimes marked as d/s - duration of status for certain visa holders such as F student visa holders).

But often, when the alien departs the United States, his or her I-94 is mistakenly not collected and so the departure is not included in the DHS database or the I-94 is collected but the data is incorrectly entered into the database. And, if the person left the U.S. by a land port, the I-94 would not be collected at all. This is a problem if at a later date, the alien needs to prove that they departed the U.S. when they were supposed to.

Remember that the burden of proving timely departure is on the traveler—not the U.S. government. Here’s what U.S. Customs and Border Protection (CBP) says:

"You must provide U.S. Customs and Border Protection (CBP) sufficient information so we can record your timely departure from the United States. This will close out your earlier record of arrival to this country. If you do not validate a timely departure from the United States, or, if you cannot reasonably prove otherwise when you apply for admission to the U.S. in the future, CBP may conclude you remained in the U.S. beyond your authorized stay. If this happens, the next time you apply to enter the U.S. your visa may be subject to cancellation or you may be returned immediately to your foreign point of origin."

So what should a person do to make sure that the U.S. has a record of the fact that they obeyed the law and departed the U.S. when they were supposed to? The American Immigration Lawyers Association has just issued a practice tip on this issue and here is what is recommended:

If your I-94 was not surrendered upon departure, then return it to the CBP. Send the card to: ACS – CBP SBU, 1084 South Laurel Rd., London, Kentucky 40744. Do not return it to a consulate, embassy or even a local CBP office.

But even doing this may not be enough. When you send in your I-94, send other documents to prove the actual day of departure. For example, send in a used airline ticket or boarding pass, a copy of a passport stamp showing date of arrival in home country, a pay slip from employment outside of U.S. after you departed, a credit card slip showing purchases made outside of the U.S. after departure, a school attendance record, etc.

When you send all of this in, include a written request on boldly colored paper asking that your date of departure be entered in the database—not the date your I-94 is received by the processing center.

When you next reenter the U.S., bring copies of all this with you just in case there is still a question about your prior departure. Even after you send your I-94 and other documents, the information might still not be entered or it still could be entered incorrectly and so having copies of what you sent should help.

Finally, if you want to find out if your I-94 was, in fact, received and the data entered, you can send in a Freedom of Information Act (FOIA) request and ask for verification of the recorded date of departure and a copy of the returned I-94 (of course, keep a copy yourself before sending it in). Send the request to CBP’s FOIA office at the following address: U.S. Customs and Border Protection, 1300 Pennsylvania Ave., NW Attn: Mint Annex Building, FOIA Division, Washington, D.C. 20229.

The CBP advises that you should wait about 2 months after sending in the I-94 to ask for verification through FOIA.

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As most know, United States citizens as well as Canadian and Bermudian citizens who are entering the United States by land or sea ports-of-entry are required to establish their identity and citizenship to the satisfaction of a U.S. Customs and Border Protection (CBP) Officer. Most do so by providing some documentary such as a passport or a birth certificate. However, it has also been possible for some to be admitted into the U.S. simply by orally declaring their citizenship.

No more. On December 21, 2007, the CBP amended its field guidance procedures to instruct its officers that citizenship may no longer ordinarily be established based on someone’s say so.

According to the Notice which is effective January 31, 2008, all travelers will be expected to present documents proving citizenship, such as a birth certificate, and government-issued
documents proving identity, such as a driver's license, when entering the United States through land and sea ports of entry.

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The Philadelphia Passport Agency is reminding people to file their applications for passports soon when things at the Philadelphia office, for now, are slow. After the much-reported summer rush for passports that resulted in significant passport processing delays, the agency is reporting that “we’re quiet for now”, according to a report in the December 17, 2007 edition of the Philadelphia Inquirer.

However, another rush for passports is expected when, in January, 2008, United States citizens will need to present a government-issued photo id and proof of citizenship when re-entering the U.S.

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On December 10, 2007, the Department of Homeland Security announced that it is now collecting 10 fingerprints from international visitors arriving at Washington’s Dulles International Airport as an enhanced security measure.

This makes Dulles the first port of entry to perform the 10 fingerprint collection from international visitors.

The next ports scheduled to collect 10 fingerprints from international visitors are: Hartsfield-Jackson Atlanta International Airport; Boston Logan International Airport; Chicago O'Hare International Airport; San Francisco International Airport; George Bush Houston Intercontinental Airport; Miami International Airport; Detroit Metropolitan Wayne County Airport; Orlando International Airport; and New York's John F. Kennedy International Airport.

Philadelphia International will be among the 278 remaining ports will begin this process by the end of 2008.

Of course, the U.S. is not the only country taking such measures. In November, Japan began taking not only fingerprints but also photographs of all foreigners entering Japan. In Japan, all foreigners over the age of 16, including even permanent residents of Japan, must undergo this biometric processing (only ethnic Korean permanent residents of Japan and diplomats are exempt).

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The American Immigration Lawyers Association (AILA) is reporting that the Department of State is about to publish notice in the Federal Register of an increase of nonimmigrant visa fees to $131 from $100 and an increase of immigrant visa fees by $20.

The increase is apparently going to be effective January 1, 2008.

I will post the formal notice when it is available.

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On December 6, 2007, the United States Department of State announced that it will be opening a second “passport Mega-Center” this coming spring in Tucson, Arizona. The other center is located and already operational in Hot Springs, Arkansas.

The two centers will each be able to print and mail out up to 10 million passports and travel documents, something that is intended to meet the expected increased demand for passports that will result from the new passport rules under the Western Hemisphere Initiative Act (WHTI). Since January 23, 2007, WHTI regulations have already required Americans to have passports or other approved documents to enter, re-enter or depart the United States by air.

On January 31, 2008, WHTI requirements will be applied to travel in and out of the United States by land and ferry. That is, U.S. and Canadian citizens will need to present either a WHTI-complaint document or government-issued photo ID, such as a driver’s license, plus proof of citizenship, such as a birth certificate.

Passport applications will continue to be processed and approved at the various Department of State passport agencies located throughout the U.S. The Philadelphia Passport Agency is located at U.S. Custom House, 200 Chestnut Street, Room 103, Philadelphia, PA 19106-2970. Its hours are 8:00 a.m. - 3:00 p.m., local time, Monday through Friday, excluding Federal holidays.

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