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Feb 20, 2004
US VISIT Program Advisory
DETAILS OF NEWLY IMPLEMENTED US-VISIT PROGRAM
The following is a summary of what we know about the US-VISIT program and its current state of implementation. Please contact our office for further information and clarification in individual cases.
On January 5th, the first phase of US-VISIT (the United States Visitor and Immigrant Status Indicator Technology) program became operational at 14 seaports and 115 airports across the country. Each nonimmigrant visa holder entering at one of these ports will undergo the standard inspection process and simultaneously will be processed through the US-VISIT system, termed "visited" by Department of Homeland Security (DHS) officials. BWI airport will serve as the pilot site for testing the US-VISIT exit procedures. Expansion of the program at airports and seaports is expected to continue throughout 2004. Unless Congress acts to delay the implementation deadlines, DHS will be required by law to expand the entry/exit program to the top 50 high traffic land border ports by December 31, 2004, and the remaining ports of entry by December 31, 2005.
In conjunction with US-VISIT, all consular posts abroad will be required to issue biometric visas by October 26, 2004. Two digital index finger prints and a photo will be taken of visa applicants, and their information will be checked against the Automated Biometric Identification System (IDENT) database. Recently, in Vancouver, IDENT clearance was taking 3 days.
This advisory briefly outlines who will and will not be affected by US-VISIT, and how US-VISIT will allegedly be implemented at air and seaports
Who is Affected by US-VISIT?
Visa holders: According to DHS, US-VISIT will apply only to nonimmigrant visa holders. Under current law and regulations, Canadians not required to have a visa upon entering the United States and foreign nationals entering the United States pursuant to the Visa Waiver Program (VWP) will not be included in US-VISIT. Conversely, Canadians and Visa Waiver country applicants for admission to the U.S. in a status requiring a visa will be required to enroll in US-VISIT.
Who is Exempt: Children under the age of 14 and persons over the age of 79 on the date of admission are exempt from US-VISIT, as are classes of aliens the Secretary of Homeland Security and the Secretary of State jointly exempt.
Visa Waiver Program (VWP) Participants: Although foreign nationals entering the United States pursuant to the VWP will not be enrolled in US-VISIT at this time, additional requirements on the VWP could make it harder to use. The USA PATRIOT Act (P.L. 107-56) requires Visa Waiver countries to issue tamper-proof machine-readable passports (MRPs) that include biometric identifiers by October 26, 2004. Individuals without an MRP will have to apply for a visa at a U.S. consulate and will be subject to US- VISIT enrollment at the post. Their admission will then be recorded under US-VISIT procedures at the port of entry. Nationals from the following countries may enter the U.S. under the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the U.K.
Mexican Laser Visas: Preliminary discussions indicate that DHS officials have not developed a final policy for the treatment of laser visa holders under US-VISIT.
Legal Permanent Residents & Citizens: At this time, Legal Permanent Residents (LPRs) and U.S. citizens are exempt from enrollment in US-VISIT.
How Do I Get Enrolled Under US-VISIT?
There are two ways visa holders will get enrolled into US-VISIT-through a consular post or at a port of entry.
Enrollment at the Consular Post: Enrollment at the consular post will occur during the processing of the biometric visa. A digital photo and inkless fingerprints of both index fingers will be taken and the biometric information will be checked through and recorded in the IDENT biometric database at the time of enrollment. Currently, only certain consular posts are issuing biometric visas. However, the State Department is required to start issuing these visas at all 211 consular posts by October 26, 2004.
Enrollment at the Ports of Entry: US-VISIT will be implemented in phases at our nation's ports. During the first implementation phase of US-VISIT, nonimmigrant visa holders will be enrolled in US- VISIT only if they enter the United States through an air or seaport that has US-VISIT capability. As of January 5, 2004, US-VISIT will only process entries of visa holders at 115 airports and 14 seaports nationwide [See the attached sheet for a list of these airports and seaports]. At these air and seaports, US-VISIT will be incorporated into the primary inspections booth. The Consular Consolidated Database (CCD) is also available at primary inspections so that visual comparisons with the visa page are possible.
The first time DHS enrolls a traveler into US-VISIT at a port, the individual's travel documents will be scanned; a digital photo and inkless fingerprints of both index fingers will be taken and the individual's name with be checked against the Interagency Border Inspection Service (IBIS) database and the wants and warrants section of the National Crime Information Center (NCIC) database. Note that both of these checks are text (not biometric) checks. IBIS does contain certain terrorist watch list information from the TIPOFF database maintained by the Department of State.
The enrollment process reportedly takes about 10-15 seconds. Once the visa holder is enrolled in US-VISIT, his or her arrival information will reportedly be stored in the IDNET biometric database.
Subsequent Entries to the U.S.: After a visa holder is enrolled in US-VISIT, he or she will still have to provide fingerprints and have a digital photograph taken upon each entry to the U.S. Ideally, in the future, visa holders will be able to swipe their biometric passport or visa, provide index fingerprints and photo, and be checked for identity against the US-VISIT database. Again, even this procedure will not provide for a rapid biometric check against any criminal or other biometric watch list database.
How Do I Exit the U.S. Under US-VISIT?
Visa holders will be required to document their departure from the United States with US-VISIT only if they depart the United States through an air or seaport that has US-VISIT exit capability. As of January 5, 2004, US-VISIT will have exit capability at the Baltimore-Washington airport in Baltimore, Maryland and at the Miami seaport. However, DHS plans to expand the US-VISIT exit capabilities to other ports of entry throughout 2004. The exit stations for US-VISIT are self-service kiosks that closely resemble automated teller machines (ATMs). DHS has indicated that the kiosks will be located within the secure area of the air and seaports; it has also stated that attendants will be assigned to monitor the kiosk area and offer assistance. In addition, the department has announced that during 2004, it will test various exit methods, possibly including a hand-held device that will permit DHS personnel to register the departure of nonimmigrant visa holders.
Very important - please note carefully:
DHS will consider exit registration mandatory for visa holders who depart from an air or seaport with US- VISIT exit capability. According to DHS, entry-exit information is constantly updated, and if a visitor overstays his or her allotted time, US- VISIT will record the failure to depart.
Client Advisory - please note carefully:
- Prepare for delays at consular posts. Delays will occur in getting appointments at consular posts since the personal appearance waiver policy announced in 2003 that requires interviews of applicants between the ages of 16 and 60 will be subsumed by the US- VISIT fingerprint and photograph requirements. Delays will also occur between the dates of an applicant's interview and the date of visa issuance. Visa issuance could potentially take days due to the requirement of IDENT checks. (Note: the IDENT check applies in both the nonimmigrant and immigrant visa application process. Currently, US-VISIT only applies to nonimmigrant visa holders.)
- Prepare for and expect delays upon entering and exiting the U.S via major airports and seaports after January 5, 2004.
- US-VISIT is a mandatory procedure. Failure to provide the requested biometrics necessary to verify the nonimmigrant visa holder's identity and to authenticate travel documents may result in a determination that the visa holder is inadmissible to the U.S.
- DHS considers it mandatory for visa holders to document their departure with US- VISIT if departure is via a port with US- VISIT exit capability. Failure to properly exit could affect your visa eligibility or potentially cause you to be removable from the U.S. For clients who are entering the U.S. through a Port of Entry (POE) that has US- VISIT capacity, but not leaving through a port that has the exit capacity, clients should maintain a copy of travel records and other documents as proof of exit through a POE without an operational exit kiosk. No matter how you depart the U.S., you are required to surrender yourI-94 (excepting multiple entry I-94s).
- US- VISIT will permit DHS to calculate the duration of a visa holder's presence in the U.S. Such records will affect visa holders in a variety ways such as: immigration benefit eligibility in terms of overstays; one-year abroad requirements for H-1B and L-1 visas; time recapture petitions for H and L visas; two-year home residence requirements for J visas; physical presence requirements for substantial presence determinations under our tax laws; and, potentially in the future, LPR abandonment issues as well as time spent in the U.S. for naturalization purposes. Therefore, you must pay close attention to when you leave the country, and be aware of the potential consequences of failing to properly depart as well as the ramifications of government monitoring of periods of stay in the U.S. THIS MEANS THAT ALL CLIENTS SHOULD LET OUR OFFICE KNOW BEFOREHAND WHEN THEY PLAN TO DEPART THE U.S. AND RE-ENTER.
What We Still Do Not Know
Despite the DHS's public outreach on behalf of US- VISIT, there are still essential details that are unknown such as:
- What is the implementation schedule for airports and seaports in 2004?
- DHS is still working on developing the end vision for US- VISIT. How will this shifting goal for the overall design of US- VISIT affect the implementation and current procedures of US- VISIT?
- What does DHS consider to be an acceptable length of delay for US- VISIT enrollment at ports of entry?
- The Visa Waiver Permanent Program Act (P.L. 106-396) mandates the collection of visa waiver program arrivaldeparture data at air and seaports. It is unclear whether this is now in effect and how it would fold into US- VISIT.
- How much will US- VISIT cost? A government taskforce estimated that billions of dollars will be required, but the government is only appropriating roughly $330 million a year to fund the program.
- For DHS Updates on US- VISIT
Visit the US- VISIT website portal at www.dhs.gov/us-visit
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