Airports, Borders & Consulates: An Update on Homeland Security and International Travel Issues

For the last five years, we have seen significant changes in homeland security and international travel issues, including security checks, immigration procedures, and visa processing. These changes have included the implementation of several systems by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), Customs & Border Protection (CBP) and the Department of State (DOS) to keep track of foreign nationals entering the United States for temporary visits or for longer periods of time. These additional security and background checks and procedures at airports, borders, consulates, and within the United States, will continue for many years to come.

This article will focus on the following security-related and international travel issues: visa processing overseas, US-VISIT, Special Registration, security checks, as well as other travel issues that companies and their foreign national employees must be aware of when traveling abroad and reentering the United States. Specific information regarding the new passport requirements for travel and readmission into the United States can be found in the article titled "New Passport Requirements for U.S. Travel."

VISA PROCESSING OVERSEAS

Some of the most significant changes regarding travel and visa processing issues have occurred at U.S. consulates abroad over the last several years. These changes have included implementing a personal interview requirement for most temporary, nonimmigrant visa applicants, electronic filing of DS-156 nonimmigrant visa applications, as well as more heightened security checks for all nationalities. Delays for several weeks or even months in obtaining visa appointments are not unusual in many countries. Accordingly, companies and their foreign national employees must continue to be vigilant in obtaining current and detailed information about visa processing overseas so that there are limited surprises when foreign national employees travel abroad for work or pleasure and must obtain the necessary visa stamp in their passport in order to be admitted back into the United States after such overseas travel.

Personal Interviews Required

Effective August 1, 2003, a DOS directive required all temporary (nonimmigrant) visa applicants to appear in person at a U.S. embassy or consulate for a personal interview before a visa would be issued. Prior to that time, an increasing number of American consular offices exercised their discretion to waive personal interviews for many visa applicants, especially those coming to the United States on work visas from Europe, Japan, Australia and other developed countries. Interview waivers, and the increasing use of "mail-in" and visa courier options, helped to speed up the visa issuance process in the face of persistent staff and budget shortages. That has changed significantly in the past five years. Almost all temporary visa applicants between the ages of 16 and 60 are now required to schedule personal interviews at a U.S. consulate. In December 2006, DOS issued a final rule on consular interviews for nonimmigrant or temporary visa applicants. Pursuant to this rule, consular officers may continue to waive personal interviews for children under 14 years old and individuals over 79 years of age, nonimmigrants seeking various A, G, and NATO visa status classifications, applicants for a diplomatic or official visa, and foreign nationals that require a waiver of personal appearance based on the national interest or unusual circumstances. In addition to these categories of individuals, a consular officer may also waive the personal interview requirement of an applicant who within 12 months of the expiration of the applicant's previously issued visa is seeking re-issuance of a nonimmigrant, biometric visa in the same classification at the consular post of the applicant's usual residence, and for whom the consular officer has no indication of visa ineligibility or of noncompliance with U.S. immigration laws and regulations. This final rule also outlines that the consular officer may not waive the personal interview/appearance requirement for the following individuals: (1) any nonimmigrant visa applicant who is not a national or resident of the country in which he or she is applying; (2) any nonimmigrant visa applicant who was previously refused a visa, is listed in CLASS or requires a Security Advisory Opinion, unless the visa was refused and the refusal was subsequently overcome, was found inadmissible, but the inadmissibility was waived, or is eligible for a waiver based on A, G, NATO or other diplomatic status; and (3) any nonimmigrant visa applicant who is from a state sponsor of terrorism as designated by the secretary of State.

Based on the above, very few foreign workers, spouses or their older children will be eligible for waivers of the interview requirement. As a consequence, there has been a sharp rise in the number of visa application interviews, causing significant delays at some U.S. consulates. Requests for an expedited interview or expedited action on a visa application are only being considered in very extreme circumstances, such as a death or critical illness involving an immediate family member. Important business travel is typically not accepted as grounds for a consulate to expedite a visa interview.

Visa applicants and their employers are encouraged to regularly check the DOS Web site for information on the visa application procedures for American embassies and consulates abroad. Keep in mind that the exact procedures and methods to schedule interviews are subject to change and are different in each country. Up-to-date information on U.S. embassies and consulates worldwide can be found at the DOS Web site.

Electronic Completion of DS-156 Nonimmigrant Visa Application Form

Most, if not all, of the U.S. embassies and consulates abroad, require the electronic completion of Form DS-156, the visa application form used for the issuance of all nonimmigrant or temporary visa stamps. Nonimmigrant visa applicants are required to complete the online application form, print the form that includes the special barcode, and bring all three pages of it with them to the embassy for the visa interview. The online form includes a code that enables embassy staff to scan the data directly into its computerized file system.

Biometrics Collection/Issuance of Machine-Readable Visas

During the visa application/personal interview process at an overseas U.S. consulate or embassy, the foreign national will be required to submit biometrics information—a photograph and two fingerprints. This information then allows the consulate to issue visa stamps with biometric identifiers. As outlined below, this biometric information is collected and is coordinated with the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program upon entry/exit from the United States.

Third Country National Processing in Canada and Mexico

Processing for visa stamps in Canada and Mexico continues to be an attractive option for visa applicants residing in the United States who don't want to travel back to their home country to obtain a new or updated visa stamp in their passport. Because third country national visa processing in Canada and Mexico is so attractive, there are fairly lengthy visa wait times for appointments and interviews. For example, over the last several months, visa wait times in Toronto have been in the range of 45-75 days. Several of the other consulates in Canada have also been within the same range. Therefore, foreign nationals must plan ahead to schedule visa appointments in Canada and Mexico. Foreign nationals and their employers must also keep in mind that if there are additional security checks or other issues, the foreign national will need to remain in Canada or Mexico during the pendency of the application. Additionally, if the application were to be denied by one of the consulates in Canada or Mexico, the third country national would need to travel to their home country directly from Canada or Mexico to reapply at the consulate in their home country. They would not be allowed to return to the United States before such travel. It is also important to keep in mind that many foreign nationals will need an appropriate visitor's visa in order to enter Canada or Mexico for the visa appointment/interview at the consulate.

VISA WAIVER PROGRAM

Under the Visa Waiver Program (VWP), citizens of 27 countries may enter the United States for business or tourism for up to 90 days without needing a visa stamp. All VWP travelers, regardless of age or type of passport, must present an individual machine-readable passport (MRP) at the U.S. port of entry to enter the United States without a visa. MRPs issued or renewed/extended on or after October 26, 2006 must include an integrated chip with information from the data page (aka "e-Passport"). MRPs issued or renewed/extended between October 26, 2005 and October 25, 2006 must include a digital photograph printed on the data page or an integrated chip with information on the data page. Specific passport requirements apply for citizens of Italy, France and Germany. For more information regarding specific information for these nationalities, visit the DOS Web site.

If a traveler cannot meet the above passport requirements, the foreign national must obtain a B-1 visa for business travel or a B-2 visa for tourism by applying for the appropriate visa through a U.S. embassy or consulate. As indicated above, that visa application will require a scheduled interview at the consulate. A list of the countries that currently participate in the VWP, along with other helpful guidance on the MRP requirement is available through the DOS Web site.

In November 2006, DHS announced that it will work with Congress to implement the following security requirements to better facilitate the increased interest of certain international allies in joining the Visa Waiver program: (1) electronic travel authorizations; (2) passenger information exchange; (3) reporting of lost and stolen passports; (4) repatriation of removed foreign nationals; (5) common standards for travel documents; (6) air marshals; and (7) airport security. DHS has indicated that its focus on security improvements will keep in mind the flexibility of this program for business and pleasure travelers.

US-VISIT

Background on US-VISIT

DHS has developed and implemented the US-VISIT program to process foreign national visitors as they enter and exit the United States. The first phase of the US-VISIT program became operational in January 2004. US-VISIT is currently operational in most (but not all) U.S. air, sea and land ports, and at selected pre-flight inspection stations abroad. An updated list of ports of entry where US-VISIT is operational can be found at the DHS Web site. As outlined above, US-VISIT is an entry/exit system which allows CBP to collect biographic and biometric information from travelers entering the U.S. to determine whether they should be eligible to enter the United States based on security, criminal or other risks.

US-VISIT is currently applicable to all nonimmigrant visa holders and visitors traveling to the United States pursuant to the VWP who are between the ages of 14 and 79 and are traveling through a port where US-VISIT is operational. The following visa categories are currently exempt from US-VISIT: A-1, A-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and NATO-6. Other exempt foreign nationals include children under the age of 14 and persons over the age of 79, legal permanent residents and U.S. citizens. Additionally, at this time, Canadians who do not require a visa to enter the United States are also not subjected to US-VISIT and most Mexican visitors who apply for admission using a Border Crossing Card (aka laser visa) and travel within the border zone are also not subject to US-VISIT at this time. Certain Taiwan representatives of the Taipei Economic and Cultural Office (TECRO) are also exempt from US-VISIT requirements.

Expansion of US-VISIT

In July 2006, DHS issued a proposed rule to expand US-VISIT to include the following groups of foreign nationals: lawful permanent residents of the United States, asylees, foreign nationals seeking to be admitted pursuant to an immigrant visa, and parolees. Certain Canadians will also be included in US-VISIT if the proposed rule is implemented. Canadians entering the United States as a B-2 visitor will not be included in US-VISIT. However, those Canadians entering the United States in most work and other visa categories where a Form I-94 card is issued, will be subjected to US-VISIT. Those Canadians commuting into the United States on a regular basis will not be subjected to US-VISIT upon each entry. However, it is unclear how often such individuals will be subjected to the US-VISIT process and procedures. DHS is currently reviewing comments regarding this proposed rule and it is not clear when such additional foreign nationals may become subject to US-VISIT.

US-VISIT Procedures—U.S. Ports of Entry

Pursuant to US-VISIT procedures, a CBP official will review each visitor's travel documents (e.g., visa, passport) and ask questions about the visitor's stay in the country. Then, the CBP officer will use an inkless fingerprint scanner to automatically read the fingerprints of arriving visitors and will take a digital photograph of the visitor. This data will be used to verify the identity of the visitor and compare the information against various government watch lists. The CBP officer will then determine whether the visitor can be admitted or should be subjected to additional questioning.

Pursuant to the US-VISIT program, all visitors subjected to the US-VISIT procedures upon admission will be required to "check out" at departure kiosks that will be located within a secure area of major international airports and seaports. The US-VISIT exit machine will issue a receipt verifying the traveler's name, date and time of exit, and place of exit. It is extremely important that exit holders keep these receipts with their permanent travel and immigration records until the system is fully operational and to document that their exit was made in case there should ever be a question in the future.

Currently, US-VISIT exit procedures are only operational at a handful of air and sea ports. Until exit procedures are operational at all airports and seaports, foreign nationals should keep their travel records as proof that they left the United States and exited the country at a port where the US-VISIT exit procedures were not yet operational. Exit registration is mandatory (at the current time if exiting through an operational airport or seaport) and all visitors and nonimmigrant visa holders must comply as a failure to properly exit under US-VISIT will be recorded as an overstay and failure to depart. Failing to record an exit could affect visa holders in many ways including eligibility for immigration benefits; timing requirements for the H/L categories, including calculation of one year abroad; timing requirements for the J-1 2 year home residence requirement; physical presence requirements for tax and other laws (possibly for abandonment of permanent residence in the future), as well as the calculation of time spent in the United States for naturalization purposes. Foreign nationals must be advised to keep accurate travel records and documentation regarding their exit from the United States if necessary to be proven at a later time. Finally, they must remember to turn in their Form I-94 cards when leaving, unless they have a multiple entry Form I-94 card (mainly Canadians). US-VISIT also includes a redress policy for individuals to inquire about the data that US-VISIT has collected about them and how to amend or correct these records if there are mistakes, inaccurate or incomplete information.

US-VISIT Procedures Overseas

In many cases, US-VISIT begins overseas at U.S. consulates issuing visas, where the foreign national's biometrics (digital finger scans and photographs) are collected and checked against various security, terrorist and criminal databases. 

SPECIAL REGISTRATION

Background on Special Registration

In September 2002, the U.S. government implemented registration, fingerprinting and monitoring requirements for foreign nationals visiting, studying and working in the United States. This system, called Special Registration (aka NSEERS), was developed and implemented to allow the U.S. government to keep track of specific nonimmigrants coming into the United States or were already in the United States who required closer monitoring pursuant to national security or law enforcement interests. U.S. citizens, lawful permanent residents of the United States, nonimmigrants in A and G visa status, parolees and asylees were exempt from the Special Registration process.

During this time period, certain foreign nationals were registered upon admission into the United States if certain "pre-existing" criteria developed by DHS were satisfied. In late 2002/early 2003, DHS expanded Special Registration to require foreign nationals from certain countries already in the United States to appear at their local immigration office for fingerprinting, photographing, and questioning. The foreign nationals subjected to Call-In Registration were separated into four Call-In Groups. The nationalities in Call-In Group 1 included: Iran, Iraq, Libya, Sudan and Syria. The nationalities in Call-In Group 2 included: Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates and Yemen. The nationalities in Call-In Group 3 included: Pakistan and Saudi Arabia. The nationalities in Call-In Group 4 included: Bangladesh, Egypt, Indonesia, Jordan and Kuwait.

Although many aspects of Special Registration have been absorbed into and are covered by US-VISIT, those foreign nationals that were initially subjected to Special Registration continue to be considered Special Registrants and must follow various requirements that are specific to their situation as Special Registrants.

Continued Registration at Ports of Entry

Certain nonimmigrants entering the United States continue to be subject to Special Registration at the port of entry. These nonimmigrants include: (1) certain citizens or nationals of Iran, Iraq, Libya, Sudan and Syria; (2) nonimmigrants so designated by the State Department; and (3) any other nonimmigrant , male or female, regardless of nationality, identified by immigration officials at airports, seaports or land ports of entry in accordance with 8 C.F.R. 264.1(f)(2).

Changes to Special Registration

In December 2003, DHS made changes to the Special Registration program. Under the Special Registration rules initially implemented, all foreign nationals subjected to Special Registration were required to appear at their local immigration office for a follow-up interview. These changes in December 2003 suspended most follow-up interviews, unless a specific notice was sent to the special registrant by DHS.

Departure Control Requirements and Notification of Changes of Address, Employment or School Remain in Effect

Although significant changes to Special Registration have not been implemented since December 2003, foreign nationals who were subjected to Special Registration must continue to comply with special departure notification procedures when leaving the United States. Specifically, Special Registrants are only authorized to leave the United States from certain airports or ports of entry so that the exit can be properly verified by an immigration official. At this time, these departure control requirements remain in effect and must be followed and complied with by all Special Registrants. A listing of current DHS authorized departure control ports of entry and airports can be located at the CBP Web site. Failure to depart from an authorized location can and has resulted in foreign nationals being deemed inadmissible upon their return back into the United States.

Like the Departure Control Requirements, Special Registrants must continue to notify and update DHS with any change in address, employment or schooling information within 10 days of such a change. However, students in F, M, or J nonimmigrant status and who are registered in the Student and Exchange Visitor System (SEVIS) are not required to separately notify DHS of the change.

Special Exemption from Special Registration Obligations

Pursuant to a special application process, special registrants can apply for relief from departure control and relief from future port-of-entry registrations. However, even if a special exemption is issued, the special registrant must still comply with US-VISIT obligations. To apply for such an exemption, the application must be submitted to the appropriate CBP field office director. Exemptions have been approved for individuals who travel frequently and who have unusual circumstances that warrant such a deviation.

SECURITY CHECKS

Security and background checks at the airports, borders and consulates have been upgraded significantly over the last five years. With the 9/11 terrorist attacks and subsequent security attacks and breaches around the world, the U.S. government through DHS and DOS has implemented and continues to impose strict background and security checks. At U.S. consulate offices overseas, consular officers have broad authority to review and initiate additional security checks with DOS in Washington, D.C., conduct personal interviews and collect biometric information on visa applicants. Upon entry into the United States at borders and airports, CBP officials have significant discretion and are using thorough screening procedures through law enforcement, national security and other databases.

Citizenship, Nationality or Country of Birth Security Checks

During visa processing procedures overseas, visa applicants are required to complete Form DS-156. Male visa applicants between the ages of 16 and 45 are also required to complete DS-157 Supplemental Nonimmigrant Visa Application. Information listed on the DS-156 and DS-157 forms, especially as to country of birth, nationality and citizenship, could lead to additional screening and security checks by the consulate and DOS.

Countries determined by the secretary of State to have repeatedly provided support for acts of international terrorism are designated as "State Sponsors of Terrorism." Currently, there are five countries designated under these authorities: Cuba, Iran, North Korea, Sudan and Syria. Iraq and Libya had previously been under such a designation. Iraq was removed from the list in September 2004. Libya was removed in May 2006. Foreign nationals from Cuba, Iran, North Korea, Sudan and Syria (possibly Libya as well because of the very recent removal from the list of state sponsors of terrorism) are subjected to a special security check (known as a Security Advisory Opinion (SAO) or Visa Condor Check). For such a check, consular posts are required to wait for an affirmative response from all participating government agencies (typically FBI, CIA, Department of Defense, and NSA) prior to issuing a visa. On average, these checks take approximately 45-60 days to be processed.

In addition to the specific countries listed as state sponsors of terrorism, citizens and nationals of other "countries of concern" may also be subjected to such an additional security check. DOS has not released a list of these specific countries. However, this list is thought to include: Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Tunisia, the United Arab Emirates, and Yemen.

Technology Alert List (TAL) Security Checks

Many American companies are reporting an increase in the number of visa applications that are being held up, sometimes for several weeks and months, for foreign scientists, researchers, and other professionals who have provided all required documentation to the appropriate U.S. embassy or consulate. In many of these cases the delay is caused by a "referral" of the visa application to assess possible inadmissibility of the visa applicant under the Technology Alert List (TAL). DOS developed the TAL many years ago to identify potential risks and to help maintain technological superiority over the Soviet Union and other Communist-dominated countries. But until recently the TAL had relatively little impact on foreign workers applying for visas in connection with their proposed employment in the United States with most high-tech, agribusiness and manufacturing companies. The events of 9/11 changed that. DOS has sent out detailed updates on TAL procedures and the need for U.S. consular officers to be familiar with the updated "Critical Fields" listed in the TAL to determine whether a particular visa application warrants further investigation by the consulate and/or referral of the application to officials in Washington, D.C. The visa applicant's education and work experience must be evaluated, along with the proposed travel or work activities in the United States. Background, experience or proposed activities in technologies associated with munitions, nuclear technology, rocket systems and navigational devices will undoubtedly lead to a "hit" by the TAL, which may result in delays in visa issuance. However, the TAL's Critical Fields list also includes many fields of study that would not necessarily suggest a national security concern. TAL "referrals" can be ordered due to a visa applicant's knowledge or expected work in robotics, urban planning, materials science, advanced computer technology, essentially any field of chemistry, biology or biomedical engineering, and even landscape architecture. American companies that regularly employ foreign national scientists should familiarize themselves with the TAL procedures to assess the potential impact on future visa applications. To try and avoid a TAL inquiry, within the confirmation of employment letter, the employer should highlight that the applicant's knowledge in the specific field does not involve a "sensitive technology" that is relevant to U.S. technology transfer control purposes and that the applicant's knowledge or research is standard to the relevant industry and widely available in the public domain.

Other Criminal, Law Enforcement and National Security Checks

Checks are also run at the consulates, airports and borders with respect to law enforcement and other national security databases. If there is a "hit", additional checks may follow or a visa and/or admission could be refused or delayed.

Traveler Redress Inquiry Program (TRIP)

In January 2007, DHS announced the establishment of the Traveler Redress Inquiry Program (TRIP) as a single, point of inquiry system for travel-related issues. TRIP has been developed to assist as a central gateway for the following issues: (1) watch list misidentification issues; (2) situations where individuals believe they have faced screening problems at immigration points of entry; or (3) have been unfairly or incorrectly delayed, denied boarding, or identified for additional screening. Through TRIP, individuals that have been repeatedly identified for additional screening can now apply through this system to have erroneous information corrected. DHS has recently requested comments on this proposed program and will provide additional details as this program is further developed.

CONCLUSION

This article has outlined the most recent changes in international travel and homeland security issues that are affecting U.S. airports, borders and consulates. As outlined above, additional changes in travel issues, documentation required, and security/background checks will continue. Therefore, companies and foreign national employees must remain current on these issues and plan in advance as to how any changes will affect their travel and other immigration obligations.