Customs and Border Protection

  1. By: Mahsa Aliaskari

Update: At midnight the federal government shut down.  We will keep employers updated as details of immigration related closings and the negotiations in Congress become available.

Seyfarth Synopsis: As we wait to hear the fate of yet another temporary extension to continue funding the government after midnight on Saturday January 20th – employers should know how a shutdown may impact processing of immigration petitions and immigration programs.

Department of Homeland Security (DHS)

U.S. Citizenship and Immigration Services (USCIS)

As a fee based agency, there will be minimal impact on USCIS operations.  This means USCIS will continue to process applications and petitions for immigration benefits, with some processing delays possible.

Continue Reading Déjà vu – Government Shutdown and Impacts on Immigration

By: Angelo Paparello

Seyfarth Synopsis: Employers take note. The April 18, 2017 “Presidential Executive Order on Buy American and Hire American,” has unleashed an array of legally dubious grounds from officials at U.S. Citizenship and Immigration Services as their basis to ask for burdensome additional evidence and to deny requests for work visas and employment-based green cards on behalf of both existing and prospective employees.

“It became necessary to destroy the town to save it.”

~ An unidentified U.S. major, referring to the February 7, 1968 bombing of the South Vietnamese town of Ben Tre that killed hundreds of noncombatants, as recounted by Associated Press reporter, Peter Arnett.

Continue Reading Revanchist Immigration: The Aftermath of “Buy American, Hire American”

By Mahsa Aliaskari and Alexander Madrak

Seyfarth Synopsis: Citing security reasons, the Trump administration announces expansion of requirements for the 38 countries that participate in the U.S. Visa Waiver Program (VWP) allowing limited travel to the U.S. for business and tourism.

On December 15, 2017, the Department of Homeland Security (DHS) announced additional security measures for countries whose nationals use the U.S. Visa Waiver Program (VWP) for temporary visits to the U.S.  The Administration’s most recent announcements surrounding the VWP requirements fall in line with its ongoing efforts to tighten the rules for those seeking to visit, work or live in the United States.  With national security serving as the justification for the enhanced scrutiny and increasing limitations, while the VWP changes may appear innocuous, they may also impact how companies handle business travel.  For clarification on all of the acronyms used in this space, remember – if you are traveling using ESTA – that means you are traveling under the VWP program.

The VWP allows citizens from 38 countries to travel to the United States for business or pleasure for up to 90 days.  More than 20 million people participate in the program each year, generating nearly $100 billion in travel exports for the U.S. economy.  European countries encompass a large majority of the 38 countries with Australia, New Zealand, Japan, Singapore and South Korea also participating.

The DHS announcement included a requirement for VWP-participating countries to screen travelers crossing their borders from third-party countries against U.S. counterterrorism information.  Another change that more closely aligns with the Administration’s pattern of tightening the rules for entry into the U.S. requires VWP countries to engage in a public information campaign aimed at reducing visa overstays.  This public information campaign requirement will be applied to any country where more than 2% of its nationals overstay their 90-day stay in the U.S.  Current statistics show that only 4 of the 38 countries that participate meet this threshold – Greece, Hungary, Portugal, and San Merino.

DHS has historically struggled to monitor and enforce exit requirements. With these new VWP requirements, we may see efforts to better track VWP travelers, which may mean more countries being subject to this new public information campaign requirement.  But more importantly, it is not yet clear what kind of an “information campaign” would be deemed sufficient for a country to comply, how it would be monitored and what kind of unilateral action will be taken if a country is deemed noncompliant.  What we do know is that the DHS Secretary has the authority to designate and remove countries from the VWP.  Without a clear roadmap of how these new requirements will be monitored or implemented, there is some cause for concern that a country could be removed at any time.

Now more than ever, business travelers should keep in mind that overstaying the 90-day period even by one day not only makes the person deportable from the U.S., but can also mean losing the privilege of using the VWP.  To visit in the future, a B visitor stamp would have to be obtained at a U.S. consulate for any entries into the U.S., and the B visa applicant may have to explain their overstay to a consular officer.

The increased requirements on the VWP follow the Administrations’ efforts to increase enforcement and restrictions in the immigration arena.  Stay tuned.

Seyfarth Synopsis: On September 15, 2017, Seyfarth Shaw partner and former U.S. Citizenship and Immigration Services director Leon Rodriguez, joined other former Department of Homeland Security Officials in filing an amicus brief in support of the State of Hawaii and other plaintiffs challenging the travel ban. 

The brief, which was also signed by former Homeland Security Secretary Janet Napolitano and former Customs and Border Protection Commissioner Gil Kerlikowske, explained that individualized assessments, based on the rigorous vetting methods already in place at the time the travel ban was first instituted, provide far more effective protection for the United States than wholesale bans based on a traveler’s country of origin.   The brief cites congressional testimony about the refugee vetting process given by Mr. Rodriguez during his time as director of U.S. Citizenship and Immigration Services.

A link to the brief is available here.

Seyfarth Synopsis: Although longstanding policy of U.S. Customs and Border Protection authorizes searches of electronic devices in the possession of travelers arriving in the United States, recent reports of such searches have heightened businesses’ concerns when their employees travel.  In the event of such a search, this guidance informs employees about what they can expect, and provides employers with recommendations to ensure against loss, corruption or misuse of company information.

Overview

United States’ Customs laws and regulations (See, 8 U.S.C. § 1582, 19 C.F.R § 162.6) authorize customs officers to inspect, search and/or detain any person, baggage, and/or merchandise arriving in, and or departing from, the United States. This authority extends to inspections, searches and temporary detentions of electronic devices possessed by travelers, including mobile telephones, tablets, and laptop computers. Increasingly searches are becoming more common, and employees traveling with company data and/or information should carry this guidance when returning from foreign travel.  “Supreme Court decisions have upheld the doctrine that CBP’s search authority is unique and does not violate the fourth amendment’s protection against unreasonable searches and seizures.”[1] This exception allows CBP to conduct “routine” searches on luggage, devices, vehicles or persons without a warrant. “However, with this authority, CBP expects all of its officers to conduct their duties in a professional manner, and treat each traveler respectfully.”[2]

Who May Be Chosen for an Inspection

United States Customs and Border Protection (“CBP”) guidance states that a variety of circumstances can lead agents to select a traveler for inspection, search and/or detention of electronic devices, including: travelers holding incomplete travel documents or lacking proper documents and/or visa; travelers who have previously violated a law that CBP enforces; travelers with a name that matches a person of interest in government enforcement databases; and/or travelers randomly selected for such a search.  Selection for a search does not necessarily mean that CBP believes that you have done something wrong. A 2012 CBP Directive noted that “in the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border”.

At this time, CBP has not articulated policies that consider a traveler’s nationality as a factor supporting a search; however, not all criteria applied by CBP have been made public. CBP has also not disclosed whether travel to certain countries could draw scrutiny. There have been reports of foreign visitors as well as United States citizens being subjected to inspections.

What Will Occur During the Search

The manner in which a search is conducted may vary widely depending on a number of factors. A customs official may simply conduct a search through the device and then return it to you.  At the other times, CBP may elect to take temporary custody (‘detention’) of the device for further examination.  If CBP decides to detain your electronic devices, the customs officer will issue you a written receipt (Form 6051-D), which will detail what items are being detained, who at CBP will be your point of contact, and your own contact information in order to facilitate return of the items within a reasonable time.

Continue Reading Searches of Devices at the U.S. Border