Adding New Countries and Enhancing Security in the Visa Waiver Program

The popular United States Visa Waiver Program—currently used by nationals of thirty-eight countries to travel to the US—will now have increased security standards for the participating countries. The Visa Waiver Program allows citizens of designated countries to travel for business or tourism to the US without a visa for stays of up ninety days. Travelers must have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel.

In response to the growing threat from individuals who have gone to Syria and Iraq to fight for the Islamic State and other groups, and who are nationals of designated visa waiver countries (the US estimates that approximately 3,000 Europeans have traveled to Syria since the conflict began in 2011), the United States will now require that countries participating in the program make changes, most significantly the following:

  • Require all passengers to use newer biometric passports that incorporate fingerprints and electronic chips that contain a photograph of the passport holder;

  • Allow more American air marshals on flights to the US;

  • Require use of the INTERPOL Lost and Stolen Passport Database to screen travelers as well as databases that share travel records and passenger information;

In addition, the Department of Homeland Security (DHS) will conduct reviews of all the countries participating in the waiver program to ensure they are following its requirements. If they find certain countries have weaker screening processes, there may be additional scrutiny for nationals of those countries at border crossings. 

DHS Secretary Jeh C. Johnson said in a written statement that these security enhancements are "part of this Department’s continuing assessments of our homeland security in the face of evolving threats and challenges, and our determination to stay one step ahead of those threats and challenges.”

While the DHS tightens the requirements, a bill introduced in Congress is proposing to increase the number of countries participating in the Visa Waiver Program. The bill, called the Jobs Originated Through Launching Travel Act (JOLT), had eighty-seven co-sponsors, split between forty-seven Democrats and forty Republicans at the end of July.

JOLT proposes to add Brazil, Poland, Israel, and Croatia, to the list of visa waiver countries by providing the DHS secretary the ability to expand the Visa Waiver Program to countries who failed the current “visa refusal” requirement. Currently this requirement bars countries when more than three percent of its citizens’ visa applications are denied. The bill would allow the DHS secretary to admit countries that have refusal rates as high as ten percent.

The bill would also enhance security requirements for countries participating in the program, including requiring the issuance of electronic biometric passports, although it's not clear if that would remain in the bill as the DHS is preemptively implementing this change. While this bill is being pushed by the travel industry which cites the economic advantages to increased tourism, critics may point to the fact that since 2008 the majority of new undocumented immigrants in the US initially arrived legally. The bill would also change the name of the Visa Waiver Program to the Secure Travel Partnership Program.

"Boosting our economy and improving national security are two of the most critical challenges we face as a nation and the JOLT Act addresses them both," Representative Joe Heck, who is co-sponsoring the bill with Representative Mike Quigley, said in a press release. "Expediting the visa interview process and expanding the Visa Waiver Program will bring more international travelers and tourists to destinations around our country and creates jobs."

Options for Fine Artists Applying for a US Visa

I love that in New York City art is everywhere—there’s graffiti on the side of buildings; sculpture installations throughout the streets and parks; and a huge variety of galleries and museums with artwork ranging from modern multimedia exhibitions to Renaissance paintings.

Since we are based in a city that is a center of the art world, and we often work with some of the best of these artists, we wanted to highlight some immigration considerations in the context of the fine art world, namely for gallery and museum artists.

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Preclearance: Cleared for Takeoff

Preclearance, also commonly known as pre-flight inspection, is offered by US Customs and Border Protection (CBP) at select locations around the world and allows US-bound passengers to undertake all immigration, customs, and agricultural inspections prior to boarding the flight outside the US.  

How is preclearance different than the “normal” post-flight inspection upon arrival in the US?
A preclearance inspection is essentially the same inspection that travelers would undergo at a US port of entry. The only difference is that it is conducted outside the US. The advantage is that preclearance provides for domestic-style arrivals at US airports. Generally no additional immigration/customs forms will need to be completed upon arrival in the US.

Where are preclearance sites located?
There are many preclearance locations all around the world in such countries as Canada, Bahamas, Bermuda, Aruba, Ireland, and the United Arab Emirates (and possibly one day in the UK). These locations are based on agreements between the US and the host country, which allows CBP to staff officers at host airports and facilitate the customs and immigration process for passengers prior to arrival in the US.

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Immigration Wins and Losses

Navigating US immigration law can be daunting, complex, and, at times, frustrating—for both attorneys and foreign nationals. Immigration law changes and bureaucratic delays and hurdles can seem insurmountable. There are good and bad days for immigration cases, and today we take a look at some recent wins and losses in the world of immigration law.

Wins
Dario Guerrero Meneses is a third-year Harvard student. He is also an undocumented immigrant who left the US without travel authorization (effectively "deporting" himself) to take his dying mother to Mexico for alternative medical treatment. He said: "'I don't think I'd be able to forgive myself for letting her basically continue the decline in her condition[.]'" His mother died in August, and after being unable to reenter the US from Mexico for months, he was granted permission to return home, where he will have to reapply for Deferred Action for Childhood Arrivals (DACA) for "Dreamers."

Will immigration reform be passed? Everyone (including us) has been asking this question since the Senate passed their own comprehensive immigration reform bill, S. 744, back in June 2013. President Obama promised and then delayed executive action. But a newly-released draft solicitation by US Citizenship & Immigration Services (USCIS) possibly hints at good news. The USCIS "Request for Proposal" is seeking a vendor who can produce a minimum of four million blank cards per year for five years, and nine million in the early stage. These appear to be cards that would be used for Green Cards and employment authorization documents—suggesting possible major executive action regarding immigration reform. A USCIS official says the vendor proposal was sought "'in case the president makes the move we think he will,'" and that the agency has not yet committed to buying these materials.

The Obama administration announced "The Haitian Family Reunification Parole Program" that "would reduce the lengthy delays facing thousands of Haitians who have already been approved to join family members in the United States and become legal permanent residents." While this is not part of President Obama's executive action on immigration reform, he could potentially enact similar measures to deal with the lengthy wait times that many foreign nationals experience in waiting to join family members in the US.

Losses
The practice of immigration law has many challenges, but most attorneys (okay, pretty much all) will never need to bring their four-week-old infant child to immigration court. This, however, happened to attorney Stacy Ehrisman-Mickle when an immigration judge in Atlanta denied her request to delay a hearing that fell within her six-week maternity leave. With her husband working out of town and no family in the area, she had no choice but to bring her newborn child with her. The judge then "scolded her for inappropriate behavior and commented that her pediatrician must be appalled that she was exposing the baby to so many germs in court[.]" Ms. Ehrisman-Mickle filed a formal complaint against the judge that day.

Overstaying the visa waiver program is taken very seriously by immigration authorities. Ben Sangari, a British man with plans to invest $1.5 million in the Buffalo area, found this out when he was stopped for a speeding ticket and is now in an immigration detention facility in Batavia, New York. While in detention he married his fiancée, who is from Buffalo, but an ICE spokesman said: "'After conducting a comprehensive review of Mr. Sangari's case, U.S. Immigration and Customs Enforcement (ICE) has chosen not to exercise prosecutorial discretion in this matter. Additionally, under the visa waiver program, Mr. Sangari is subject to mandatory detention and his case is not eligible for immigration court hearings." 

In West Africa, the death toll from Ebola exceeds four thousand and the region's inadequate healthcare infrastructure is desperately struggling to deal with the crisis. Meanwhile in the US, Ebola fear is leading to hysteria and racism against Africans as well as backlash against immigrants from Mexico and Central America.

To end on a more positive note, kindergarten students in Texas won a competition to name a recently-adopted Mustang horse, as part of a program by the Laredo Sector Border Patrol. The horse's name: Bravo.

You Probably Shouldn't Say That....

When I hear some of the things foreign nationals say to immigration officers at the border when trying to gain admission to the US, I break out in a cold sweat. If the officer becomes overly “concerned,” or doesn't believe what he/she is hearing, a foreign national may be refused entry. I thought I would share a few examples and explain what might cause concern to an immigration officer.

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Do I Need an Immigration Attorney?

Many people ask themselves this question when considering applying for work visas, Green Cards, or other immigration benefits. At first glance the immigration forms and instructions on the US Citizenship and Immigration Services’ (USCIS) website seem relatively straightforward. Some even may have heard stories from friends or colleagues who successfully applied without hiring a lawyer. In this post, we consider different kinds of immigration benefits (along with more complicated deportation cases) and the reasons why one may wish to hire an attorney to assist them in the process.

Of course, as a lawyer working for a boutique immigration law firm, I’m biased; however, I also write from the perspective of a lawyer who has seen what happens when applicants attempt to apply pro se (without legal representation) for cases that are far from as simple as they seem. In a separate future post, we will discuss the dangers of hiring an “Immigration Consultant” or “Notario” and also the unique ethical obligations of attorneys.

First, let’s be clear: There is no legal requirement to be represented by a lawyer in immigration petitions and applications. A petition or application filed pro se will not automatically be rejected by a USCIS Service Center simply because it was not prepared by an attorney. Such petitions or applications will be subject to the same review and adjudication process that others filed by attorneys go through.

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