U.S. Government Begins to Implement US-VISIT Program

During the next twelve months or so the Department of Homeland Security will be implementing a new system for inspection/admission and departure from the United States of foreign nationals in non-immigrant visa status. This program has been named US-VISIT (for “U.S. Visitor and Immigrant Status Indicator Technology System”). As mandated by Congress and authorized by notice issued in the Federal Register on January 5, 2004, the Department of Homeland Security will now require arriving foreign nationals to submit photographs and fingerprints at the port-of-entry. The new system will allow the immigration authorities to automate the tracking of foreign nationals' entries and departures from the United States, as well as to perform security checks against various law enforcement and intelligence databases to determine if an individual may pose a threat to national security or be otherwise inadmissible to the United States. As announced today, foreign nationals entering in diplomatic status (A, G, and NATO visa status—principals only, not attendants or personal servants/employees), persons under age 14, or persons over age 79 will be exempt from the requirement to be photographed and fingerprinted as a condition for entry. Foreign nationals entering the U.S. as visitors under the Visa Waiver program will not be subject to the new program initially, however by October 26, 2004 entrants under the Visa Waiver program will need to present machine-readable passports that in essence contain the same kinds of biometric indicators. As announced initially, persons entering the U.S. at land ports from Canada or Mexico (as opposed to airports and sea ports) will not be routinely photographed/fingerprinted, however, the immigration authorities have the authority to do this as they may deem necessary, and eventually the procedures are likely to be expanded to all points of entry.

These developments underscore the importance for all foreign nationals of maintaining valid visa status at all times while they are in the United States, since a ‘derogatory' entry in the government system may have serious negative consequences that could be difficult to correct in the future. Arriving foreign nationals should carefully check their I-94 arrival documents at the time of entry to make sure they have been admitted in the proper visa status and through the correct expiration date. Any problems or discrepancies should be reported to immigration counsel immediately.

Persons who have previously had interaction with law enforcement agencies, e.g., have been arrested or charged with committing a crime, should also consult with immigration counsel and should be prepared at the time of entry to explain and document the outcome of the matter. Past experience has shown that while law enforcement databases often capture the fact that an individual was once arrested or charged with a crime, they do not usually capture the outcome of the matter, e.g., that charges were dismissed.

We will continue to keep our clients advised of development in this important area.