Enhanced border security expected in 2003

by Daniel Joyce

As we embark on a new year, we find ourselves in the midst of significant changes in United States border enforcement policies. In one of the most significant changes in the U.S. government in many years, the Department of Homeland Security (DHS) has taken over many of the functions and powers of the U.S. Immigration and Naturalization Service (INS) and the Customs Service.

In legislation enacted on November 25, 2002, the DHS was given authority over immigration and visa matters and shipments of cargo in order to prevent the entry of terrorists and terrorist materials and supplies into the United States. The INS has always had a dual role of service (processing applications for visas, work permits and other “benefits”) and enforcement (border inspections and deportation/removal functions). The DHS has taken over the enforcement functions, leaving the personnel of the various INS offices nationwide uncertain as to their fate or future functions. There is a 12-month transition period during which personnel and other resources are allocated within the new system.

Even before this new legislation, we saw many developments in 2002, including:

Much broader security and background checks at the ports of entry and in connection with every application for an INS benefit.

The announcement that the INS will now strictly enforce the law requiring visitors and temporary residents to provide written notice of address change within 10 days after the change.

The announcement, previously reported here, that the INS is removing the visa exempt status from Canadian landed immigrants from UK Commonwealth countries.

The requirement that citizens or nationals of certain countries must register upon entry to the United States and provide formal notification of departure from the United States at designated points of departure.

Use of sophisticated scanning devices at ports of entry to inspect cargo for dangerous materials such as weapons, explosives or chemicals.

Apparently lost in the priority of border security was any progress in some of the areas of most concern to Canadian truckers such as cabotage rules or waivers. On the subject of cabotage rules, we have been hopeful for the past few years that the INS would relax its strict interpretation of rules relating to pickups and deliveries within the United States. Unlike the Customs Service, which looks towards the international character of the merchandise, the INS focuses strictly on the points of pickup and delivery, and declares illegal virtually any pickup or delivery of the same goods in the United States.

Of particular concern to Canadian carriers are goods having an origin or destination in Mexico. Due to issues relating to physical entries into Mexico, goods are often picked up or dropped off at free trade zones or other designated areas in the United States near the Mexican border. Under INS rules, it is illegal to pickup goods in the United States and deliver them to the U.S. border point. Similarly, it is a violation of the cabotage rules to pick up Mexican merchandise at the U.S. border point and deliver them to a subsequent point in the U.S.

We believe that a relaxation of the rules regarding these examples is justified, and we are hopeful that we will see some action in the future if physical entry into Mexico remains problematic. We do not expect to see a meaningful change in laws regarding “repositioning” movements in the United States. The INS has consistently resisted such changes on the grounds that they invite too much abuse, and also open up the Canadian carriers to corporate law and U.S. tax issues that cannot be resolved at the INS level alone.

There is one area that may see change in a positive way in 2003. We have been commenting for several years that the INS is considering adoption of a five-year waiver as a compromise between the current one-year renewable waiver and the old border-crossing card of indefinite duration. A couple of months ago, we were informed that meaningful progress is being made toward the five-year waiver, and the only issues revolved around the nature of the document to be issued to the applicant. The INS wanted to introduce a waiver document consistent with other high-tech INS documents that provide information about the applicant, verify identification of the applicant and facilitate record keeping for entries and exits. Unfortunately, the recent change in structure from the INS to the DHS provides yet another reason for delay in the planning and implementation of this card. We remain hopeful but no actual implementation time frame has been announced. Until then, we are stuck with the annual renewal system.

The new year 2003 will undoubtedly be an interesting year of change, and we will continue to comment on developments as they occur.

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716 564-2727.

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