Pilot program may have lasting effect on L-1 process for Canadians

Will applying for an L-1 visa at the border soon become a thing of the past? If the pilot program starting on April 30, 2018 is any indication, change may be on the horizon.

U.S. Citizen and Immigration Services (USCIS) and Customs and Border Protection (CBP) have joined forces to launch a pilot program at the port of entry in Blaine, Washington, estimated to last six months. Currently, a Canadian L-1 applicant may present their petition at any U.S. border crossing for immediate adjudication by a CBP officer. This will no longer be an option at the Blaine, Washington, port of entry for the duration of the pilot program.

Instead, applicants in the Blaine Washington State area will need to submit their L-1 applications (Form I-129 and supporting evidence) for processing at the USCIS California Service Center before CBP can admit them into the U.S. Applicants cannot seek admission in L-1 status until they receive USCIS’s approval. According to USCIS, expedited service will be provided to L-1 applicants affected by the pilot program. The specifics of the process are still being solidified but is projected that a decision -- an approval or Request for Evidence (RFE) -- will be issued within 2-3 business days of receipt. In an effort to accelerate the process, USCIS is expected to have an email address devoted to the processing of these L-1 applications to provide case updates, and it could be possible for admission to be sought upon an email confirmation of approval.

Through the preliminary pilot program, the goal is to develop a strategy that will lessen lengthy process delays and make adjudication for L-1 applications more consistent. Additionally, through the change in process, CBP officers can give their full attention to inspections and admissibility issues instead of dedicating time to on-the-spot adjudications.

Things you should know about the pilot program:

• It is currently for L-1 applications only.
• CBP will continue to allow Canadian L-1 applicants to apply for “on the spot” adjudications at all other ports of entry.

What has yet to be determined:

• Clarification regarding potential changes to the RFE process and response time. Will it decrease the number of superfluous RFEs (as intended)?
• If the pilot program is deemed successful, will this new process be nationally implemented – and how quickly will it happen?
• Will the processes for other types of applications eventually be affected?

Updates will be made as new developments arise and Serotte Reich will be keeping you posted. Questions or concerns? Contact us at 716-854-7525 or http://srwlawyers.com/contact

Travelers beware: CBP can search your electronic device

As the number of border searches of electronic devices performed by United States Customs & Border Protection (CBP) continues to increase, it is imperative that travelers remain informed about the current policies in place.

In January, CBP issued a new 2018 customs directive that clarifies that officers may not to use your device to access information that is solely stored remotely (such as on the cloud) during a basic search. Additionally, without reasonable suspicion of criminal behavior or a national security concern, they should not copy the data on your device or connect it to an external device to analyze the contents. Officers are also instructed to take care not to make changes to the content of your device during a search.

When you cross the border, what can you expect during an inspection performed by a CBP officer? According to Secretary of Homeland Security Kirstjen Nielsen, officers are free to ask for your cell phone, laptop or tablet -- and your passcode. They can request that you turn over your unlocked phone and refusing to comply will not prevent CBP from confiscating your device. If you do refuse, you could possibly be detained for an indeterminate amount of time while they review and analyze the contents of your device. CBP can also retain your device for further review; they are not required to return it to you before you leave the port of entry.

Although the directive introduced in January includes guidelines for what CBP should or should not do, there is still considerable leeway when it comes to the search and seizure of electronic devices. The Electronic Frontier Foundation, a nonprofit organization devoted to defending civil liberties in the digital world, pointed out in a recent report that this policy is “full of loopholes and vague language” that allows officers to encroach upon travelers’ constitutional rights. As the directive is written, if “reasonable suspicion” exists, CBP officers are permitted conduct what is considered an advanced search. In this case, an officer can connect external equipment to a traveler’s electronic device and review, copy and/or analyze its contents.

If you are alarmed by the potential violation of your privacy while crossing the border, you’re not alone. Neema Singh Guliani, legislative counsel to the American Civil Liberties Union (ACLU), noted that “this policy falls far short of what the constitution requires – a search warrant based on probable cause.”

As it stands, here are measures that travelers can take prior to crossing the border in an effort to protect their privacy:

• Review what is on your phone – photos, apps, search histories – before crossing the border, taking into consideration that anything stored on your device is fair game in the event that an officer requests it. Store anything sensitive or private on a secure cloud storage account.
• Only bring what’s necessary with you. If you can avoid traveling without your laptop or tablet, leave it at home.
• Bring a travel-only phone (a blank “burner” phone) or laptop that does not contain any sensitive information.
• Set your phone to airplane mode prior to crossing the border. The new directive instructs CBP to disable network connectivity as they are to avoid intentionally retrieving information that is solely stored remotely. They are supposed to ask you to disable connectivity or do so themselves. Err on the side of caution and change your settings ahead of time.
• Know your rights. Supervisory approval is required in order for a CBP officer to detain your device after you depart the port of entry. A supervisor is also supposed to approve and, if at all possible, be present for an advanced search.
• If you have provided your passcode for an officer to inspect your electronic device, be sure to change it afterword. CBP is directed to delete or destroy passcodes after a search is conducted. However, it is advisable to change all passcodes to ensure that your information stays secure.

For further information:

Visit CBP's official website: https://www.cbp.gov
Find updates from civil liberties advocates:
The Electronic Frontier Foundation: https://www.eff.org
American Civil Liberties Union: https://www.aclu.org

SRW Border Lawyers Successfully Guides Client Through Removal Proceedings & I-192 Waiver Process

Background: Client, a naturalized Canadian citizen, initially approached SRW after she was placed in removal proceedings. CBP Officials placed Client in removal proceedings because she had attempted to enter the U.S. without a waiver after CBP Officials had previously advised her that she was inadmissible pursuant to INA § 212(a)(2)(A)(i)(I) and INA § 212(a)(6)(C)(i) and required a waiver. Notably, Client had initially been informed of her inadmissibility when she was only a permanent resident of Canada and mistakenly believed that she no longer required a waiver to enter the U.S. since she was now a Canadian citizen.

With the assistance of SRW, Client admitted to the factual allegations of her Notice to Appear and conceded her removability. SRW also prepared a Motion to Withdraw Application for Admission on Client’s behalf, which ultimately was granted by the Immigration Judge.

Following the conclusion of Client’s removal proceedings, Client retained SRW to assist her with obtaining a nonimmigrant waiver to overcome her inadmissibility to the U.S.

Grounds of Inadmissibility: INA § 212(a)(2)(A)(i)(I) – Two (2) Theft Convictions that occurred over nineteen (19) years ago; and INA § 212(a)(6)(C)(i) – Misrepresentation stemming from her failure to disclose her criminal convictions on a B1/B2 visa application over ten (10) years ago.

SRW Waiver Strategy: Evidence of Rehabilitation (no criminal issues since 1997, no immigration issues since being placed in removal proceedings in 2010, demonstrated remorse, productive member of community); Compelling reasons for entry (many family members living in the U.S. including her only living parent, siblings and extended family members).

Application Type: I-192, Application for Advance Permission to Enter as Nonimmigrant

Adjudicating Agency: Admissibility Review Office (Filed @ Peace Bridge Port of Entry in Buffalo, New York)

Purpose of Entry into U.S.: Business and Pleasure Visits [B-1/B-2]

Adjudication Time: 240 Days

New I-94 Website Feature Helps Foreign Nationals Avoid Overstaying in the U.S.

U.S. Customs and Border Protection has recently announced that they will now remind travelers via email and a new feature on the I-94 website of the last possible date they must depart the U.S. to comply with the terms of their admission. Currently, only eligible Visa Waiver Program travelers can utilize the new “Compliance Check” feature on the I-94 website to check how much longer they can legally remain in the U.S. without overstaying the terms of their admission. However, CBP has advised that further updates to the I-94 website are expected to incorporate additional nonimmigrant travelers.

To check the status of their admission in the U.S., eligible travelers can visit the I-94 website, click on the “View Compliance” icon and enter their name, birthdate, passport number and passport country of issuance. This check will inform travelers of how many days are remaining on their admission or how many days they have remained in the U.S. past their admitted until date.

If a traveler has overstayed the terms of their admission, the new I-94 website feature will provide the individual with information regarding what to do next. An overstay is someone who was lawfully admitted to the U.S. for an authorized period, but remained in the U.S. beyond his or her lawful period of admission. Overstaying the terms of your admission is significant as many overstays are not eligible to adjust or extend their status in the U.S. and in some cases, may trigger unlawful presence bars when they ultimately depart the U.S.

Although the new “Compliance Check” feature is currently only available to eligible Visa Waiver Program travelers, all travelers can check their admit until date on the I-94 website. To check their admit until date, travelers can click the “Get Most Recent I-94” icon and enter their traveler information (name, birthdate, passport number and passport country of issuance). It is important for travelers to be advised of their admit until date as periods of admission can vary widely depending on the traveler’s class of admission and/or visa type. For example, individuals traveling to the U.S. as B1/B2 visitors are admitted for a fixed period of time whereas students traveling to the U.S. in F-1 status are admitted for duration of status (D/S), which is based on the completion of a degree program.

Form I-94, Arrival/Departure Record, is of utmost importance for nonimmigrant visitors as it provides proof of their lawful admission to the U.S., which is necessary to verify alien registration, immigration status and employment authorization. Notably, in May 2013, CBP automated the I-94 system for travelers arriving to the U.S. by air and sea. The automated system eliminated the need for paper forms and manual data entry by allowing CBP Officers to create the I-94 record at the time of inspection.

More recently, in September 2016, CBP also launched an online I-94 application and payment option for travelers arriving at a land port of entry. Individuals may provide their biographic and travel information and pay the $6 fee online up to seven days prior to their entry.

These changes/upgrades to the I-94 system demonstrate CBP’s continued commitment towards improving the international travel experience for both U.S. citizens and visitors to the U.S. The new I-94 website feature makes it much easier for travelers to find their last possible departure date and to comply with their terms of admission.