Editor’s Note: John Lindsey is a member of the Research Triangle Park law firm of Daniels Daniels & Verdonik, P.A.Under the US-VISIT (United States Visitor and Immigrant Status Indicator Technology) program, implemented by the Department of Homeland Security (DHS), most foreign travelers entering the U.S. through any of 116 airports (including Raleigh-Durham, Charlotte and Wilmington) and 16 seaports are now required, in addition to the standard immigration inspection process, to confirm their identity by providing biometric information consisting of two digital index finger prints and a digital photograph.
In addition, such persons are required to go through similar processes when leaving the country through Baltimore-Washington International Airport, Chicago O’Hare International Airport or the Miami International Cruise Line Terminal. The scope of this program, and resultantly the potential consequences of non-compliance (even if accidental) will increase on September 1.
Who is covered?
The foreign visitors subject to the US-VISIT procedures are those who hold non-immigrant visas and, after September 30, 2004, those entering under the Visa Waiver Program. The procedures are not applicable to person under the age of 14 or over the age of 79. Foreign travelers admitted under a limited set of non-immigrant visas are also excluded from the US-VISIT requirements, but these exceptions are not the typical work visas most foreigners use to travel to the U.S.
Exit procedures are mandatory at designated ports
Foreign travelers need to know that the US-VISIT exit procedures are mandatory when departing the U.S. through a port with the US-VISIT exit capability in place. The departure information will be recorded in the DHS data bases and used to track whether the visa holder has overstayed or otherwise not met the terms applicable to his or her visa. Failure to comply with the exit procedures at a designated air or sea port can result in the foreigner being denied future entry into the U.S.
Expansion of program
As of September 1, US-VISIT is being expanded to include exist procedures at the following airports and seaports:
Implementation dates for the other airports and seaports are not yet scheduled.
Keep records of your departure
Foreign travelers who enter through a port with US-VISIT capability and leave through a port without US-VISIT exit capability should keep a copy of their travel records and other documents to show when they left the country, and that they left through a port without the exit procedures. This information may be needed should DHS attempt to deny entry later for failure to comply with the US-VISIT exit procedures. Foreign travelers will still be required to surrender their I-94 forms on departure no mater what the exit capability of the port of exit, so a copy of their I-94 forms should be made prior to departure in order to have this record of their stay in the U.S.
Travel delays are inevitable
Although DHS attempts to minimize the disruption these US-VISIT exit procedures will cause to foreign travelers leaving the U.S., such persons should, nevertheless, expect delays at the designated air and sea ports and plan additional time to complete the processing required to leave. The exit procedures are being done through self-service kiosks, and attendants are available to help travelers with the process.
Is US-VISIT worth it?
One has to wonder whether the extra procedures required by US-VISIT at the border, particularly the exit procedures, are worth it, given the costs of the program (estimated to be in the billions when fully implemented) and the inevitable delays and privacy intrusion to a large segment of law-abiding foreign travelers to the U.S., particularly once the program is extended to land ports of entry. US-VISIT is billed by DHS as a way to increase our national security, but there is considerable skepticism as to whether the program will reduce the terrorist threat to the U.S.
It is argued that the known “bad guys” of greatest concern to our national security are smart enough to know how to enter and leave the U.S. without being subject to the US-VISIT biometric procedures. Further, the US-VISIT entry/exit procedures will not identify the unknown bad guys until it is too late, if at all. Under these circumstances, imposing delays on the law-abiding foreign travelers with the excuse of trying to catch the bad guys seems the wrong thing to do. The dollars being spent on the US-VISIT program would probably be better spent by law enforcement in other areas if our goal truly is to increase our national security.
The US-VISIT program is, however, expected to provide DHS with improved capability to track the entry and exit of foreign visitors to the US and to monitor compliance with U.S. immigration laws. The program will not, however, locate those persons who choose to overstay their visas (which seems to be the greatest concern of those who worry about immigration compliance), but DHS will (one hopes) have a better idea of who they are and know this information more quickly than under past procedures.
Perhaps this result is sufficient justification for the program’s costs to U.S. taxpayers and the additional burden on foreign travelers. But if this is the real reason for the program, let’s say so and not give misleading justification by citing dubious increases in national security. Even if immigration law compliance is the real reason behind the program, perhaps for the moment we should worry less about immigration compliance and use the resources being devoted to US-VISIT on programs more likely to identify and capture the bad guys.
Daniels Daniels & Verdonik, P.A. has been serving the legal needs of entrepreneurial and high technology clients for more than 20 years. John Lindsey concentrates his practice in the areas of copyright, trademark, immigration, international trade and corporate law. Questions or Comments can be sent to jlindsey@d2vlaw.com.
