U.S. Customs and Border Protection

The U.S. Supreme Court decided that the United States can ban entry by persons from Muslim countries, partially and temporarily upholding the Executive Order travel ban. Travelers from Iran, Syria, Sudan, Libya, Somalia, and Yemen are barred from coming to the United States unless they have a bona fide, well-documented connection to a U.S. person or entity. The timeframe appears to be from June 29, 2017 for 90 days to September 27, 2017. For refugees, the timeframe appears to be 120 days, to October 27, 2017.

There does not appear to be any basis for revoking previously approved visas.  However, the ruling could cause confusion in particular for those with plans to come to the U.S. on tourism or for business visits.  B-1 and B-2 visa applications for business or tourism may be denied, and B-1/B-2 travelers may be refused entry at U.S. airports and ports of entry if the Immigration Officer is not convinced the traveler meets the “bona fide connection” standard. But foreign workers from the countries with approved visas, such as H-1B workers; F-1 students; J-1 exchange visitors; K-1 fiancés ; L-1 intracompany executive, manager, and specialized knowledge transferees; O-1 extraordinary ability personnel; P-1 performers; R-1 religious workers; and E-2 investors; should be allowed entry. It is unclear how dual citizens, such as dual Iranian-Canadian citizens will be treated under the ruling.  Green card holders should not be affected.

The Supreme Court issued the ruling on June 26, 2017, and will hear full oral argument in the Fall of 2017.

UPDATE:  In a landmark decision on February 9, 2017, the Ninth Circuit Court of Appeals halted the Executive Order travel ban imposed on persons from predominantly-Muslim countries.  The Court upheld the temporary restraining order from Judge James Robart’s February 3, 2017, ruling in the lawsuit Washington v. Trump.  As a result, the travel ban is not in force. 

However, some heightened scrutiny still exists in the interest of security.  Persons with concerns about departing from or returning to the U.S. still may want to contact an immigration lawyer prior to travel.  However, citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, or with Muslim backgrounds, no longer should be subjected to unduly excessive questioning during visa processing or upon entry to the United States.   

Following is the history of the Executive Order and continuing implications. 

On Friday, January 27, 2017, President Trump issued Executive Orders barring admission into the United States from seven predominantly Muslim countries, suspending all refugee admissions, and barring entry by Syrian refugees. Though no countries are listed on the Order, the intent was the ban on entry into the U.S. by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen by any persons “from” those countries with nonimmigrant or immigrant visas or status or as refugees.

Multiple lawsuits challenged the Order.  On January 28, 2017 federal courts in several districts issued stays limiting the Order, but the Department of Homeland Security through Customs & Border Protection (CBP) is not fully complying with the stays at all airports and ports of entry.

However, on January 29, 2017, Homeland Security issued a statement, indicating that allowing lawful permanent residents to return to the U.S. is in the national interest, so long as there is no serious derogatory information, as determined on a case-by-case basis.

Overall, CBP and visa officers applied an extremely heightened level of discretion for foreign citizens from Muslim countries (beyond the seven listed), but persons who are allowed to board flights by an large have been allowed to enter the U.S.

Here is a summary of the impact:

Impact on U.S. Citizens

  • The Order does not specifically apply to U.S. born citizens or naturalized US citizens.
  • However, dual U.S. citizens from the 7 countries reported that CBP notified them that their Global Entry trusted traveler authorization is being revoked.

Departing the United States

  • To minimize the impact of the Order, it is advisable to avoid unnecessary travel outside the United States.
  • On January 31, 2017, the Department of State began the provisionally revoking valid visas previously issued to any affected nationals from the 7 countries.  A provisional revocation of a visa does not require the person to depart the U.S., and anyone who receives notification should contact an immigration attorney to discuss implications.  UPDATE: The State Department has started to reinstate the revoked visas.

Returning to the U.S. by Air

  • For persons currently outside the U.S., anticipate enhanced questioning on return, related to activities inside and outside the U.S. and related to family and friends.
  • In some countries, airlines were asking travelers from the 7 countries to sign agreements that if Homeland Security refused to allow them to enter the U.S., the person would agree to pay the return airfare (under existing agreements, the airlines – not the U.S. government or individuals – are liable to cover the cost).

Returning to the U.S. at a Land Border Crossing

  • Entry at land border crossings almost involves more questioning than flying into the U.S. The reason is that some screening occurs through the Advanced Passenger Information System (APIS) before boarding a flight, but the traveler must wait for the immigration officer at the land border crossing to conduct the screening.

Canadians

  • National Security Advisor Flynn advised that dual nationals of Canada are not prohibited from entering the United States and usually should be allowed to enter.

Green card holders returning to the U.S.

  • Green card holders from countries other than the 7 listed report little difference in the admission process from before the Order.
  • Green card holders from the 7 countries who are dual citizens of other countries (such as Canada and the UK) may be subjected to minimal additional screening.
  • Green card holders from the 7 countries are being subjected to additional screening, which may involve a few additional questions by the immigration officer in primary inspection at the entry booth, or the person may be sent to secondary inspection for more extensive questioning ranging from a few minutes to several hours.
  • Some immigration officers and airline representatives have asked green card holders to sign a form (I-407) to abandon permanent resident status and be allowed to enter the U.S. as a visitor.  Permanent residents should not sign a form or relinquish the green card without speaking to a lawyer.
  • UPDATE:  Persons from the 7 countries generally no longer are singled out.

Temporary, nonimmigrant visa travelers

  • Temporary visas holders (such as with H-1B, O-1, L-1, F-1 students, business visitors, tourists, and Canadians and Mexicans with TN status) from the 7 countries may be subjected to enhanced primary or secondary screening.  UPDATE:  Persons from the 7 countries generally no longer are singled out.
  • Those returning to work generally have less questioning that those entering for the first time.

Visa processing overseas

  • Some U.S. embassies and consulates abroad had allowed returning visa applicants to forego an interview under visa interview-waiver programs, i.e., the drop-box for visa renewals. This option no longer exists. Now, all visa applicants must attend an interview.  UPDATE:  Drop-box visa processing has resumed.
  • Persons from other countries attending visa appointments may end up stuck outside the U.S. for some time and be unable to return while waiting for the visa stamp, though this now is less likely to occur.
  • All U.S. embassies and consular posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Visa interviews for affected individuals are being canceled. The Department of State issued an urgent notice to citizens these countries, “please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please do not attend. You will not be permitted entry to the Embassy/Consulate.”  UPDATE:  Visa processing has resumed.

Questions on entry

  • CBP immigration officers at the Ports of Entry may ask travelers to provide social media access, such as contact for Facebook pages, Instagram accounts, etc. Such requests should be declined, as the information is not required.
  • For some travelers, a delay will result from a request to Headquarters in Washington, DC, to clear the person.
  • The Order was not directed to nationals of Saudi Arabia, Bahrain, Oman, Qatar, & UAE, nor to nationals of Bangladesh, Egypt, Indonesia, Morocco, Pakistan, Turkey or other Muslim-majority countries. But some citizens of those countries report being subjected to enhanced secondary screening.
  • The highest scrutiny is being applied to citizens of one of the 7 countries, using a passport issued by one of the 7 countries, and travelling to the U.S. from one of the 7 countries.

Impact on USCIS petition and application processing

  • USCIS reportedly has ceased processing of all immigration petitions and applications for beneficiaries of the 7 countries, for forms that begin with an “I,” (I-130, I-765, etc.), but are processing forms that begin with “N” (such as N-400 naturalization applications).  UPDATE:  Processing has resumed.

Removal or questioning of persons in the U.S.

  • Persons with valid status in the United States are not subject to removal under the Executive Order.
  • Immigration officers who ask to enter the workplace or a home to ask for information about immigration in most cases may be refused if they lack a warrant.

Access to Counsel

  • A person who would like legal representation should ask for a “G-28” while in secondary at a Port of Entry, and even without a G-28, should state that they would like legal representation and to be able to speak to a lawyer and should not be dissuaded by an immigration officer saying the person is not entitled to counsel.

Effective October 1, 2013, U.S. federal government operations are experiencing a lapse in appropriations due to the inability of Congress to pass a funding bill.  Following are implications on immigration-related government services that may impact employers:

Department of State:  Visa processing.  As of October 1, 2013, visa issuance and full operations are to continue as usual.  However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. 

Department of Labor:  Employees furloughed; operations suspended.

No processing of Labor Condition Applications (LCA) for H-1B or other cases, prevailing wage requests of PERM applications. 

If a PERM application is ready to be filed, has a deadline, and cannot be efiled, mailing the application may be an option, but at the risk of potential processing delays. 

Department of Homeland Security

U.S. Citizenship & Immigration Services (USCIS):  As of October 1, 2013, USCIS reports that “all offices are open worldwide,” including the following:

  • Regional Service Centers and processing centers for applications and petitions
  • Local USCIS offices

USCIS has not reported whether it will accept cases for processing, in particular, H-1B petitions with an LCA not yet certified by the DOL.

Citizenship & Immigration Services (CIS) Ombudsman office:  Employees furloughed; operations suspended. 

Customs & Border Protection (CBP) Port of Entry Operations, including CBP Cargo Security and Revenue Collections, as well as Border Security programs, including Border Patrol and CBP Air and Marine Operations:  Continued operations, because they have been deemed law enforcement necessary or necessary for the safety of life and protection of property.

E-Verify:  Unavailable; operations suspended.  E-Verify, the free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be inaccessible during the shutdown. 

Employers must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system.

While E-Verify is unavailable, according to the E-Verify website, employers will not be able to access the E-Verify account, and as a result, will be unable to do the following:

  • Enroll any company in E-Verify
  • Verify employment eligibility
  • View or take action on any case
  • Add, delete or edit any User ID
  • Reset passwords
  • Edit your company information
  • Terminate an account
  • Run reports
  • View ‘Essential Resources.’ Please note that all essential resources may be found by visiting www.dhs.gov/e-verify.

In addition, E-Verify Customer Support and related services are closed.  As a result: 

  • Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
  • Telephone and e-mail support will be unavailable.  E-Verify will respond to e-mails sent, when the suspension is lifted.
  • E-Verify webinars and training sessions are cancelled
  • E-Verify Self Check will not be available

The following temporary policies have been implemented:

  • The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. This does NOT affect the Form I-9 requirement—employers still must complete the Form I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve TNCs will be extended.  Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact Homeland Security.
  • For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses).

Department of Justice (DOJ)

The DOJ has indicated that its trial attorneys and immigration judges will conduct removal (deportation proceedings) only for individuals in federal custody. All other cases are suspended during the shutdown.

 

Why is CBP eliminating paper I-94 cards? CBP believes that filling out and issuing paper I-94 cards is an unproductive use of time, for both government officers and travelers. As part of post-9/11 initiatives put in place nearly a decade ago, information about travelers’ identities, travel documents, and U.S. visas is already in the U.S. government’s possession prior to their arrival to the United States on an air or sea carrier. Arrivals and departures of foreign nationals by air and sea are already registered electronically by DHS through this system. Therefore, CBP’s issuance of paper cards upon admission, and its collection, review, and data entry of cards at admission and departure is no longer a necessary effort. Perhaps more significantly, the manpower necessary to manage the system built on paper cards represents a major cost which the government wishes to eliminate.I am a temporary worker or visitor to the United States. How will I-94 elimination change my admission process? If I won’t have a paper I-94 card, how can I prove my lawful admission? At the time of your entry, you will still have an interview with a CBP officer regarding your purpose of coming to the United States and the length of your stay. Your passport will be stamped, and the stamp will indicate the class of your admission (or parole) into the United States, and a date for expiration of your authorized stay. There will still be an “I-94” record created and attached to your identity, but it will be in electronic, not paper form. CBP has created a website (http://www.cbp.gov/I94), where you will be able to access all the data that used to be on the paper I-94 card hyperlink here. To safeguard against privacy concerns, CBP’s I-94 website will require inputting multiple data points to log in to view the electronic I-94, including the following:

  • first, middle, and last name,
  • passport number,
  • country of citizenship
  • place of entry to the United States
  • date of entry into the United States, and
  • possibly more information.

Reportedly, electronic I-94 admission data will be available online to travelers immediately following admission, and available to DHS stakeholders (e.g., State Departments of Motor Vehicles, Social Security Administration, colleges and universities, etc.) within approximately 24 hours. For travelers who still wish to receive a paper I-94 card, CBP will issue paper cards upon request.

I work at a U.S. company which hires foreign workers. How will I be impacted by I-94 elimination? The absence of paper I-94 cards will change the way workers can provide you with proof of maintenance of status when you are sponsoring them for work-authorized classification. U.S. Citizenship and Immigration Services will expect electronic I-94 printouts to be retrieved and printed from the Internet, and submitted along with immigration petitions, and you may have to assist your workers in accessing this information. Also, I-94 automation for air and sea travelers will change the documents you must accept when verifying a worker’s U.S. employment eligibility on Form I-9 or through the E-Verify system. In addition to paper I-94 cards—which will still be issued to some travelers—companies should be prepared to accept printouts of electronic I-94 data from CBP’s website. This I-94 data should be used to complete I-9 and E-Verify forms just like data from paper I-94 cards. Note that a passport stamp annotated with a work-authorized class of admission (e.g. H-1B) is not an acceptable document for I-9 purposes, and you must continue to fill out I-9 forms using I-94 data only.

I’m worried about errors on my record that will be undetectable until I’ve already completed the admissions process. Are there procedures for CBP to correct errors in electronic I-94 records? With paper I-94 cards, it is easy to spot obvious errors in the date or class of admission which correlate to errors in CBP internal databases, and it is relatively simple to request correction at the time of admission if an error is made. After I-94 automation, errors will likely not be detectable until after a traveler has completed the admissions process and left the CBP/international arrivals area of the airport or seaport. If you note that there is a clear error in your electronic I-94 record, or a discrepancy exists between the admission stamp in your passport and your I-94 record, you will have to appear at a CBP Deferred Inspection office to resolve these issues. We strongly recommend that all travelers with automated I-94s check their online records immediately upon admission to verify their accuracy.

If I don’t have a paper I-94 card, will I still be expected to turn in any documentation, or otherwise report my departure from the United States? According to CBP, in the advent of I-94 automation, you do not need to turn in any documentation at the time of departure, as long as you are departing the United States via air or sea. Departure manifests for air and sea carriers are automatically registered in DHS databases in a similar fashion to arrivals, so your departure from the country will close out your I-94 admission record in the same way your arrival created the record. However, if you depart the United States via a land border, your departure will not be automatically registered, so you will need to affirmatively report your departure. CBP has provided limited guidance regarding how to effectively do this, but we recommend that you print out a copy of your electronic I-94, and give it to CBP or the adjacent country’s border agency (e.g. Canadian Border Service Agency) as you undergo the arrival and inspection process there. Additionally, you might consider asking Canadian or Mexican border officials to date and stamp your passport to confirm your departure from the United States and entry to their country. If you fail to do either of these things, CBP will continue to allow foreign travelers to submit proof of departure from the United States according to these instructions.

I’m a Canadian citizen, so my passport isn’t usually stamped and I’m not usually issued a paper I-94 when I travel. This change won’t affect me, will it? Actually, it may. Canadian visitors traveling to the United States by air or sea will now have electronic I-94 records created and attached to their identity. As such, these individuals will go through the same process as all other foreign travelers, and will likely have their passports stamped and annotated with a visitor class of admission and, in most cases, a six-month period of authorized stay. Canadian visitors will also be able to access their electronic I-94 records online. Keep in mind, again, that I-94 automation will only be phased in at Pre-Clearance Operations at Canadian airports, and that procedures at the land borders will not change. Foreseeably, CBP officers stamping and annotating passports for all Canadian travelers could cause increased wait times for U.S. immigration inspection at Canadian airports. As I-94 automation is phased in for Pre-Clearance locations, we recommend you arrive extra early to the airport or book longer layovers if connecting to U.S.-bound flights.

What other issues should I be aware of?

  • Non-DHS agencies—federal, state and local—may not be fully aware or informed of the elimination of paper I-94 cards, and may still insist on presentation of paper I-94 cards to issue documents and benefits to foreign nationals. At least during the first few months of I-94 automation, we strongly recommend printing a copy of CBP’s public notice regarding the elimination of paper I-94 cards and carrying it with you to any appointment at a federal, state or local agency where you might need to present I-94 data.
  • Electronic I-94 data will only be available on CBP’s website for current, ongoing periods of admission. In other words, once a foreign national with an automated I-94 record departs the United States, his or her admission data will no longer be accessible online. Individuals who wish to maintain detailed information regarding their travel and admission should print and store I-94 records each time they enter the United States.
  • The name linked to each automated I-94 record will reportedly be the name from the individual’s latest U.S. visa. Individuals who have even a small discrepancy between the name listed on their passport and their U.S. visa may experience issues with Departments of Motor Vehicles or other state/local agencies, if they are required to present passport and I-94 documents on which their name is an exact match. (Note that there is no such requirement for employers completing I-9 forms – I-9s can be properly completed as long as passport and I-94 both reasonably appear to relate to the individual presenting the documents. Minor name discrepancies between documents are acceptable.)

 

 

 

U.S. Customs and Border Protection (CBP) has officially announced its intent to eliminate its use of paper I-94 arrival/departure cards, now given to temporary foreign visitors and workers at the time of their admission to the United States. Instead of giving paper I-94 admission cards to foreign travelers, an I-94 record of admission will automatically be created and electronically attached to each traveler’s identity.

CBP will still stamp foreign travelers’ passports at entry, and annotate the stamp with the class of admission and the period of authorized stay. I-94 admission data will also be accessible and printable through an Internet portal, which can be accessed by travelers at http://www.cbp.gov/I94.

CBP reports that the web portal for accessing electronic I-94 information will require multiple data points to log in and view admission data, including the following:

  • Traveler’s name as listed on their passport or U.S. visa;
  • Passport number;
  • Country of citizenship;
  • Date of birth;
  • Date of entry;
  • Place of entry.

Initially, to implement I-94 automation, CBP will begin to stop issuing paper I-94 cards in late April 2013 to travelers arriving by air and sea at certain Ports of Entry. The initiative will be rolled out in phases by region, with the following key provisions:

  • Week 1, beginning April 30, 2013, I-94 automation at airports will occur at Chicago O’Hare, Miami, Charlotte, Orlando and Las Vegas.
  • Week 2, beginning May 07, 2013, I-94 automation is expected at other major airports, including New York, Newark, Boston, Philadelphia, Baltimore/Washington, Detroit and Houston.
  • I-94 automation is expected to be phased into operations at West Coast airports and seaports—including Seattle, Portland, Los Angeles, San Francisco, Hawaii and Alaska— during the week of May 14, 2013.
  • At land border Ports of Entry in Canada and Mexico, temporary visitors and workers entering the United States, will continue to be issued paper I-94 cards until further notice.
  • Individuals in a few select categories of admission, such as asylees and refugees, will continue to be issued paper I-94 cards no matter where they enter the United States.

This change stands to have a wide-ranging impact on both foreign nationals and U.S. businesses. I-94 admissions records are critically important, as they prove foreign nationals’ authorized status and period of stay in the country, and are routinely relied on by federal, state and local government agencies to issue driver’s licenses, Social Security numbers and other documents needed for individuals to live and work in the United States. In turn, these U.S. identity documents are often necessary to facilitate U.S. employment.

I-94 admissions records in the post-paper era will present new challenges and problems as glitches in the new data integration systems are exposed. Accordingly, Human Resources professionals and foreign workers alike should become familiar with the I-94 elimination initiative to attempt to avoid common points of confusion. Lane Powell has published a set of Questions and Answers with more detailed information about I-94 automation and its impact on foreign nationals and U.S. businesses. CBP has also published a press release and a fact sheet regarding this policy change on its website.