Labor Immigration Law

We have written about the upcoming new system for pre-registration of travelers of visa waiver countries coming to the U.S.  Under the new system, all travelers will be required to complete a pre-registration via an online system before departing for the U.S. There will be a period of several months in which the system will be functional, yet completion of the information will be optional.  It is expected that beginning January 2009 such pre-registration will be mandatory for all visa waiver country travelers.

USCIS has released screenshots of the new system to allow the affected parties to become familiar with the system before it launches.  We are republishing these screenshots for the benefit of our clients.

The Government Accountability Office (GAO) has commented on the program announced recently by USCIS which aims to pre-register all travelers to the U.S. coming from Visa Waiver Program (VWP) countries.  We wrote extensively about the program earlier in June.

Under the new program, which is optional until January, when it becomes mandatory for all of VWP travelers from 27 countries, all travelers to the U.S. must pre-register before traveling to the U.S. through an online system by entering personal information such as passport number, intended dates of travel, etc.  If the system rejects the pre-registration, the traveler must apply for a visa at the U.S. consulate.

The GAO estimates that between 1% and 5% of the travelers could be rejected by the online pre-registration system. This amounts to an estimated 500,000 additional visa applications.  Given the relatively short timeline between announcement (early June 2008), the optional launch date (August 2008)  and the mandatory cut-off date (January 2009), there will  be many travelers who either 1) do not know about the pre-registration until shortly before their travel or 2) do not apply for pre-registration until a point when a rejection from the pre-registration system would make it impracticable to schedule a visa appointment and apply for a U.S. visa.

Homeland Security and the State Department indicate that they are aware of the potential of increased demand in visas early next year, but they say they are prepared to handle it.

We are advising our VWP clients  to apply as early as possible for their pre-screening clearance and be flexible in case they need to schedule a visa appointment and interview.  We also urge our clients to check the Consulate Wait Times website for some idea on how long it takes to schedule and attend a visa interview.

The Department of Homeland Security has announced an Interim Final Rule which creates a new online system which is part of the Visa Waiver Program (VWP).  The new online system will require all nationals or citizens of VWP countries who plan to come to the United States under the VWP to register their travel in advance and obtain pre-authorization of their entry into the U.S.    The system will go into effect on August 1, 2008 and will be optional until the rule is published in the Federal Register, which is expected in January 2009.

To apply for authorization to travel to the U.S., VWP travelers will log-in to a web-based system and complete an application providing certain personal and eligibility information which is currently required on the I-94W form filled out by VWP travelers upon entry into the U.S.   The applications may be submitted at any time prior to travel to the United States and DHS encourages travelers to do so as soon as their travel plans are made.  The system will allow modification of travel plans and other information.

Once the application is completed, the information will be compared to various law enforcement databases and an instant response will be provided to the applicant.  The possible responses are: Authorization Approved, Travel Not Authorized, or Authorization Pending.  An Authorization Approved is valid for up to two years or until passport expiration, whichever is earlier, is valid for multiple entries to the U.S., and is not a guarantee for admission to the U.S.

According to DHS, once the program becomes mandatory (expected January 2009), VWP travelers who fail to complete the pre-travel authorization may be denied boarding on the airplane or may be turned at the U.S. port of entry.

The Department of Homeland Security (DHS) has proposed a new rule which would require airlines and certain ships to collect biometric information from departing non-U.S. citizens. This proposed rule comes to supplement the already established entry biometric procedures. The main difference would be that while the current entry biometrics are taken by the U.S. border agents, the departure biometrics would be taken by the airlines and then transmitted within 24 hours to DHS.

Currently, all airlines are already required to transmit to the DHS biographic information for all passengers prior to their departure from the United States, but just because someone has a ticket does not indicate with a level of certainty that the same person boarded a plane and left the country. Therefore, the new departure biometric system would provide a higher degree of certainty to DHS.

It is DHS’s intention to implement the air and sea biometric exit procedures by January 2009; such timeline would allow the DHS to maintain the Visa Waiver Program and if the new rule is not implemented by June 30, 2009, then DHS may not be able to extend the Visa Waiver Program to new countries.

In a Memorandum of Understanding, the Department of Homeland Security (DHS) is one step closer to adding Slovakia, Hungary and Lithuania as Visa Waiver Program (VWP) countries.  This comes after DHS signed similar agreements with Estonia and Latvia earlier in March 2008.

Although nationals of these countries cannot yet come to the U.S. without visas, based on these agreements, it is possible that final arrangements will be finalized later in 2008.

The VWP allows a national from one of the current 27 VWP nations to travel to the U.S. for 90 days or less without having to obtain a B-1/B-2 visitor visa. The VWP is limited to nations with high rates of compliance with U.S. visa requirements and low rates of rejections of visa applicants.  Currently these countries are Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.