As the national crackdown on illegal immigration grows along with the Department of Homeland Security’s (DHS) need to ensure integrity of the immigration system, this article aims to discuss the two major changes that have taken place in 2009 with respect to non-US citizens and International Tourists from Visa Waiver Program Countries arriving to or departing from the United States.

1. Expansion of the United States Visitor and Immigrant Status Indicator Technology (US-Visit) Program

The first major change was the expansion of the US-Visit Program. The US-Visit Program, initiated in 2004, requires the DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens, biometrically compares the identities of those aliens, and authenticates travel documents presented by such aliens through the comparison of biometric identifiers. Foreign Citizens subject to US-VISIT may be required to provide finger scans, photographs, or other biometric identifiers upon arrival in, or departure from, the United States at air or sea ports of entry.  By linking an alien's biometric information with the alien's travel documents, DHS reduces the likelihood that another individual could assume the identity of an alien already recorded in US-VISIT or use an existing recorded identity to gain admission to the United States.

The new rule that came into effect on January 18, 2009, expands the categories of non-U.S. citizens required to provide biometrics.  It increases the list of those who will be subject to US-VISIT requirements to nearly all foreign citizens, including:

·       US lawful permanent residents (LPRs) i.e. “green-card holders”;

·       Foreign Citizens seeking admission on immigrant visas, (this includes all family based immigration and EB-1 to EB-5 categories)

·       Refugees and Asylees;

·       Foreign Citizens paroled into the United States;

·       Certain Canadian citizens who receive a Form I-94 at inspection or who require a waiver of inadmissibility.

Canadian citizens applying for admission as B-1/B-2 visitors for business or pleasure, and those specifically exempted under DHS regulations, are exceptions to the new rule.

The most startling expansion of the rule is to permanent residents or “green card holders” as they not only go through an extensive background check to become permanent residents including a criminal background check using the applicant's fingerprints, but United States Citizenship and Immigration Services (USCIS) conducts an extensive investigation prior to granting adjustment of status to that of an LPR, and the US Department of State, as well, undertakes significant investigation of a foreign citizen applying for an immigrant visa.

DHS, however, claims that they uncover significant immigration document fraud, particularly in relation to permanent resident cards. Instances of fraud, particularly with green cards issued until 1989, include giving or selling the card to someone else, altering a lost permanent resident card, and using a fraudulently created permanent resident card.

What does this rule mean for permanent residents traveling to or from the United States?

1.     US-VISIT will now apply to all permanent residents entering or exiting from an air or seaport.

2.     Permanent residents entering through land ports of entry will be required to provide fingerprints only if they are referred to secondary inspection.

3.     Permanent residents with criminal convictions traveling outside of the U.S. are likely to be detected at entry and they should be prepared to present evidence regarding their admissibility.

2. Visa Waiver Program (VWP) and Electronic System for Travel Authorization (ESTA):

The second major change, which took effect on January 12, 2009, concerns international visitors from VWP countries like United Kingdom (for a complete list of VWP countries see the list below). US Immigration law now requires all international visitors from VWP countries who plan to travel to the U.S. for temporary business or pleasure for 90 days or less under the VWP to pre-register online at ESTA and obtain an online travel authorization prior to initiating travel to the United States.

ESTA requires the same information as the I-94W form that VWP visitors fill out en route to the US.  Typically, the traveler must provide biographical data including name, birth date, and passport information, as well as answers to questions regarding eligibility to travel under the VWP.

It should be noted that ESTA is not a new visa category but a “pre-clearance” program for (a) international visitors that seek to enter the United States and belong to a Visa Waiver Country and (b) for international visitors that are simply transiting through the United States. For the latter category, visitors are expected to write “In Transit” and their final destination under the heading “While in the United States”

It is recommended that travelers submit their ESTA applications as soon as possible and no later than 72 hours before departure. The ESTA application can be found online at: https://esta.cbp.dhs.gov/

Currently, 35 countries participate in the VWP, as shown below:

For more information on US-Visit or ESTA visit our blog at: http://immigrationinfo.wordpress.com/

Hanishi Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.

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