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And NSEERS did not end at the airport. Registrants remaining in the United States for more than 30 days were (and still are) required to re-register at local immigration offices at mandated intervals. If already present in the United States, the same population was subject to a “call-in” registration process, between October 2002 and April 2003, requiring most males from the affected countries to report to local offices for registration, photograph, fingerprinting and interview. Just as NSEERS activities peaked in the spring of 2003, the long-criticized U.S. Immigration & Naturalization Service (“INS”) was abolished, and replaced by three new bureaus. The Bureau of Citizenship and Immigration Services (“BCIS”) took over the INS function of granting benefits under the Immigration Act. The Bureau of Immigration and Customs Enforcement (“BICE”) replaced INS with regard to investigation of immigration and customs violations, as well as detention and removal of aliens illegally present. The third new bureau, the Bureau of Customs and Border Protection (“BCBP”) merges the inspection function of the old INS with that of the U.S. Customs Service, and is also responsible for “smart border” initiatives and intelligence.
The Bureau of Customs and Border Protection: Be Prepared Whether entering the United States as a business visitor or starting an assignment in the United States, the wise traveler must be well-prepared for the BCBP inspection. Inspection officers have access to an online lookout system known as the National Automated Immigration Lookout System II (“NAILS’). NAILS contains service officers’ records, and is a major contributor to the Interagency Border Inspection System (“IBIS”). IBIS accesses records from about 23 government agencies involved in border security. NAILS records are also fed into the U. S. Customs’ Treasury Enforcement Communications System (“TECS”) and the Consular Lookout and Support System (“CLASS”).
What Kind of Information is Found in NAILS? For international employees traveling to the United States with or without a visa, a key component of NAILS is the Nonimmigrant Information System (“NIIS”). Service officers routinely enter nonimmigrant admission denials into NIIS. Most employees would probably recall such an incident, and disclose it to immigration counsel before traveling, so that counsel could properly assess its potential effect on subsequent applications for admission. More troublesome is the updated overstay information now available in NIIS. Derived from matching Arrival and Departure Records (Form I-94), NIIS overstay data could present a major surprise to the employee who does not recall a 91-day stay five years ago, following admission under the Visa Waiver Program. A single day of overstay following admission as a Visa Waiver visitor results in a permanent bar to subsequent use of the waiver program. The employee’s sole alternative is to obtain a visa from a U.S. consulate in his or her country. Under this scenario, the employee bound for a business meeting in the United States could find him or herself denied admission and required to return to his or her country for a visa. Consider another scenario: Since the 1996 amendments to the Immigration Act, a single day’s overstay (beyond the expiration of the I-94) on any nonimmigrant visa renders the visa void. The airport inspector scans an employee’s machine readable passport and sees the prior overstay, based on admission and departure record-matching in NIIS. The inspector announces to the startled applicant that he is inadmissible, because his apparently unexpired visa was invalidated by operation of law – quite unbeknownst to the employee. Again the employee will need to return to his or her country and obtain a new visa, with the attendant delay and process now entails. Under the May 2002 Border Security Act, electronic collection and reporting of airline passengers’ biographic and other personal data became mandatory (it had been voluntary since 1989 and 140 countries are participants in the Advanced Passenger Information System). The personal information now captured on air passengers will be fed into a new Arrival Departure Information System (“ADIS”), which will supplement NIIS. These scenarios show some of the potential for disruption of travel and business plans that inspectors using NIIS data may cause. They are not the only possibilities. For example, in adjudicating applications, BCIS is now checking NIIS overstay information to deny extension of stay or change of status, or to issue a Request for Evidence (“RFE”) to obtain an explanation of an apparent prior overstay. An employee denied an extension of change of status permitting continued employment must be terminated immediately. BCIS is also requiring evidence that applicants for extension or change of status have complied with NSEERS before granting the approval.
Can You Find Out What NAILS and IBIS Records Contain? The Field Manual issued to BCBP inspectors distinguishes between “temporary lookout” records, good for up to 90 days, and “permanent lookouts.” The latter require an Alien number (A-file) and supervisory approval, but it is not at all clear that inspection officers observe this nicety. That is, a BCBP officer may well record an employee’s name permanently in NAILS, without any particular control or supervision. It appears that the only check on such a permanent “lookout” record is for counsel to obtain the record under the Freedom of Information Act (“FOIA”) and determine whether any further action to remove it is feasible. The BCBP is specifically authorized to disclose under FOIA the lookout records its officers have created as to inadmissibility, under 601© of the Immigration Act of 1990. BCBP is not authorized to disclose information crated by other agencies in NAILS. The difficulty in obtaining a correction or removal of such a record when it lacks value for admissibility or any other purpose should be evident. Already, immigration counsel report receiving calls about employees refused airline reservations because they, or someone with a similar name, appear on airline “no fly” lists. The U.S. Customs Service maintains IBIS, which connects to numerous state, federal, and international law enforcement databases, including the FBI’s National Crime Information Center (“NCIC”). A record of some long-forgotten minor criminal offense may produce a “hit” when IBIS is checked. Notably, the Customs Service has historically responded quickly to FOIA requests as to records stored in its databases. The number of such records is immense and growing. Further, as required by the “U.S.A. Patriot Act,” the three new Homeland Security bureaus and Department of State lookout systems now have access to NCIC, including state and local “wants and warrants” records. Many local law enforcement agencies submit records of nearly every arrest, but do not necessarily include information on resolution of the charge, nor is access to such additional information available without an FBI fingerprint check. The result is that establishing admissibility may take much longer when there is an NCIC “hit,” since the inspector will need to verify that the applicant for admission is not the same person as the one with the arrest record.
Preparing for Inspection There is no right to counsel at inspection. There is no appeal of a decision to deny admission. Inspection officers can and do use “expedited removal” authority in cases where the applicant is found to lack a valid visa, which results in a five year bar on admission. Hence, information about the inspection process, and documentation of the true facts concerning one’s background and reason for seeking admission, is invaluable. Since the inspector may in fact be a former customs inspector (or agricultural inspector) with far less immigration law knowledge than the “legacy INS” officers, the possibility of the inspection getting derailed has increased along with the information (for misinformation) available to the inspectors. The following tips are intended to help the arriving employee keep the process to admission on track where possible.
Know what the Inspector is Looking For Each nonimmigrant visa classification has specific requirements. Most visa holders and regular visitors under the visa waiver program have a general idea of these requirements, but might have difficulty expressing the relevant facts in response to a question, especially if their English is not fluent. The charged (or fatigued) atmosphere of an airport inspection is not the time to stumble over the purpose of the employee’s trip. Before departing for the United States, foreign nationals should obtain and carry a letter from the company or counsel, explaining the purpose of the trip and relating it to the trip and relating it to the specific visa category the individual will be using.
Disclose and Document Prior Denials And Other Issues Counsel cannot help employees in the absence of relevant information. As mentioned above, the BCBP inspector will have access to much information, some of which may be inaccurate or refer to some other similarly named person. That an employee has a prior denial of admission, or a visa, or even a criminal record does not mean that nothing can be done to obtain a waiver for many grounds of inadmissibility, including criminal grounds. Or, if an arrest did not lead to conviction, counsel can work with the employee to develop the evidence of that fact for presentation to the inspector. Removal of inaccurate records in lookout lists may take time, but can be accomplished in many cases. In some situations, counsel can arrange with BCBP officers to accept faxed documentation to overcome a denial of admission, or to demonstrate that the record does not, by itself, present a ground of inadmissibility.
Withdrawal of the Application for Admission In many situations, an employee’s best alternative at the airport may be to ask to withdraw his or her application for admission, and try again at a future time when the issue has been resolved. Withdrawal of the application has it own perils. Clearly, the U.S. inspection process now requires more than good intentions. Proper preparation and disclosure of critical facts is essential to the admission process. |
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