By: Jake Campbell and Gabriel Mozes

Seyfarth Synopsis: Effective January 26, 2021, all international passengers (with minor exceptions) traveling by air must provide a negative COVID-19 viral test to enter the U.S. Alternatively, passengers may provide results proving recovery from COVID-19 with a doctor or physician authorizing international travel.

I. Negative COVID-19 Test Requirement

The U.S. Centers for Disease Control and Prevention (“CDC”) order requires that all internationally arriving U.S. air passengers (ages 2 and above), including U.S. citizens and permanent residents, provide a negative COVID-19 test that was administered within three days of travel.
Continue Reading U.S. Requires Negative COVID-19 Tests for International Air Passengers

Seyfarth Synopsis: The outbreak of the Novel Coronavirus (COVID-19) has resulted in unprecedented travel restrictions, U.S. consular appointment cancellations, and changes to USCIS operations. To help navigate these challenges, Seyfarth is providing a brief summary of recent developments from the U.S. Department of Homeland Security, U.S. Department of State, and U.S. Department of Labor.

Updates from the U.S. Department of Homeland Security
Continue Reading COVID-19 Immigration Updates From the Agencies

On March 17, Secretary of State Rex Tillerson issued a cable to all diplomatic and consular posts worldwide calling for the immediate implementation of heightened screening of visa applications.  Through the cable, Secretary Tillerson instructed consular posts to undertake additional screening measures based on the conclusions of the interagency working groups mandated by the President’s Executive Order.  Visa processing screens at U.S. consular posts will be more invasive and time-consuming for certain individuals, particularly those from the countries listed in the President’s most recent Executive Order and those from Iraq.

Continue Reading New Department of State Cable Implements Extreme Vetting Measures

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