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Law and the Border: U.S.-VISIT Program to Affect More Canadians

About a year ago, the U.S. Department of Homeland Security (DHS) introduced the US-VISIT program with much fanfare and media attention.

About a year ago, the U.S. Department of Homeland Security (DHS) introduced the US-VISIT program with much fanfare and media attention.

We wrote about the program and commented that it was not going to affect most Canadians. That is still true, but the program will broaden its scope and will affect more Canadian citizen drivers by the end of this year.

Currently, the US-VISIT program is in use in 115 airports and 15 seaports in the United States.

The DHS has issued a mandate for the 50 busiest land port of entries to be using this system by Dec. 31, 2004, with all ports of entry being equipped for US-VISIT by Dec. 31, 2005. US-VISIT stands for “U. S. Visitor and Immigration Status Indicator Technology Program.” The idea behind it is fairly simple. All over the world, at U.S. Consulates and Embassies, foreigners seeking temporary permission to come to the United States receive a visa in their passport, which serves as authorization to enter the U.S. in an approved status.

The visa is only issued after satisfactory background and security clearance checks are conducted.

At the consulate, the applicant is required to provide biometric information – fingerprints and photograph, as proof of identity.

The biometric information is stored in a database, and is retrievable when the person enters the United States.

Upon arrival in the United States, the person’s photo appears on the DHS computer screen and a fingerprint scanner verifies that this is the same person who enrolled at the time of the visa application.

I heard one DHS official describe the program this way: “When the person goes to the consulate, he gets a piece of paper (the visa). When he comes to the United States, we make sure that the person matches the paper.” Canadians have largely been exempt from the US-VISIT program for the simple reason that they do not require a consular-issued visa or other pre-approved entry document, so there is no system for enrolment. There are a small number of Canadians who enter the United States with an immigration status that requires a passport and visa. Those individuals are enrolled in the system and are “visited” when they arrive.

As of Dec. 31, 2004 that will expand somewhat, when every person issued an I-94 card will become enrolled in the system.An I-94 card is not a visa, it is an entry document issued at the port of entry. As noted above, persons coming to the U.S. from most countries of the world receive a visa at the Consulate overseas, which authorizes entry in a certain Immigration status.

The I-94 card is issued upon entry as proof of that status and as proof of the term of lawful stay in the U.S. Those individuals have been subject to US-VISIT for the past year when arriving at certain airports and seaports.

The DHS has waived the visa requirement for visitors from approximately 30 countries. These individuals do not need a visa in their passport, and receive a special type of I-94 card upon entry, valid for 90 days. (It is green, rather than white, and is designated as an I-94W.) Those individuals will be subject to US-VISIT as of Dec. 31, 2004.

That leaves one final category – Canadian citizens who receive I-94 cards on entry. Canadian citizens visiting the United States are exempt from any visa requirements, and would only have an I-94 card for a limited number of reasons.

One common situation is an individual with a waiver to overcome inadmissibility because of previous criminal or immigration law violations. That person must present the waiver and receive an I-94 card for entry to the U.S. Otherwise, the issuance of an I-94 card is largely discretionary on the part of the DHS officer at the border.

The guidelines for I-94 issuance may change, depending on DHS objectives.

On one hand, if the DHS wants to enrol as many people as possible in the system, it could target Canadian drivers for more I-94 issuance and US-VISIT enrolment.

On the other hand, if it is believed that such enrolment would unnecessarily interfere with the normal inspection process and flow of traffic, there could actually be a reduction in the discretionary issuance of I-94 cards to drivers. What’s the bottom line? If you currently require an I-94 or I-94W to enter the United States, you will be required to be enrolled in the US-VISIT system. If you currently do not need an I-94 card, it is likely that nothing will change for you unless the DHS decides to increase the issuance of I-94 cards to drivers and other frequent visitors to the United States, as a matter of discretion.

As of this time, no such policy change has been announced.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.

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