Client Advisory on the US-VISIT Program

• First Phase of US-VISIT Implementation
• Biometric Visas at U.S. Consulates
• Who is Affected by US-VISIT?
• How Do I Get Enrolled Under US-VISIT?
• How Do I Exit the U.S. Under US-VISIT?
• How Will DHS Handle NSEERS Special Registration Once US-VISIT is Implemented?
• What should I do to prepare?

The Department of Homeland Security (DHS) is currently developing the United States Visitor and Immigrant Status Indicator Technology program (US-VISIT).  This program will serve as the new automated entry/exit system for foreign visitors.  Through the use of US-VISIT, border inspectors will record the entry and exit of nonimmigrant visa holders traveling to the United States.  This advisory briefly outlines who will be affected by US-VISIT, how US-VISIT will be implemented at the border, and what you need to do to prepare.

First Phase of US-VISIT Implementation

The first phase of US-VISIT became operational on January 5, 2004.  Each nonimmigrant visa holder entering at one of these ports will go through the standard inspection process.  At the same time, each person will be processed through the US-VISIT system. The US-VISIT program is currently implemented at 14 seaports and 115 airports across the country.  Expansion of the program at airports and seaports is expected to continue throughout 2004.  Under current law, DHS is required to expand the entry/exit program to the top 50 high traffic land border ports by December 31, 2004.  The remaining remaining ports of entry are scheduled to include US-VISIT by December 31, 2005. 

Biometric Visas at U.S. Consulates

As part of the US-VISIT program, all U.S. consular posts abroad will be required to issue biometric visas by October 26, 2004.  Visa applicants will have digital finger prints and a photo taken, and their information will be checked against the Automated Biometric Identification System (IDENT) database.  This process may slow visa issuance.  For example, IDENT clearance was taking 3 days in Vancouver, Canada. 

Who is Affected by US-VISIT?

Visa holders: According to DHS, US-VISIT will apply only to nonimmigrant visa holders.  Under current law and regulations, Canadians who do require a visa and foreign nationals entering the United States pursuant to the Visa Waiver Program (VWP) will not be included in US-VISIT. 

Exempt categories: The following visa categories are exempt from enrollment in US-VISIT:  A-1, A-2, C-3 (except for attendants, servants or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6.  However, if an individual entering the U.S. in an exempt status is no longer in such status on his or her date of departure, he or she would be subject to the departure requirements.

Children under the age of 14 and persons over the age of 79 on the date of admission are exempt from US-VISIT, as are classes of aliens the Secretary of Homeland Security and the Secretary of State jointly exempt.  The Secretary of Homeland Security, the Secretary of State or the Director of Central Intelligence may also exempt an individual alien. 

Visa Waiver Program Participants: Although foreign nationals entering the United States pursuant to the VWP will not be enrolled in US-VISIT at this time, practitioners should be aware that additional requirements on the VWP could make it harder to use.  The USA PATRIOT Act requires Visa Waiver countries to issue tamper-proof machine-readable passports (MRPs) that include biometric identifiers by October 26, 2004.  Individuals without an MRP will have to apply for a visa at a U.S. consulate and will be subject to US-VISIT enrollment at the post.  Their admission will then be recorded under US-VISIT procedures at the port of entry.

Mexican Laser Visas: DHS officials have not developed a final policy for the treatment of laser visa holders under US-VISIT.

LPRs & Citizens: At this time, Legal Permanent Residents (LPRs) and U.S. citizens are exempt from enrollment in US-VISIT. 

How Do I Get Enrolled Under US-VISIT?

There are two ways visa holders will get enrolled into US-VISIT: 1) through a consular post or 2) at a port of entry. 

Enrollment at the Consular Post: Enrollment at the consular post will occur during the processing of the biometric visa.  A digital photo and digital fingerprints of both index fingers will be taken.  This biometric information will be checked through and recorded in the IDENT biometric database.   Currently, only certain consular posts are issuing biometric visas.  However, the State Department is required to start issuing these visas at all 211 consular posts by October 26, 2004.

Enrollment at the Ports of Entry: US-VISIT will be implemented in phases at our nation’s ports.  During the first implementation phase, nonimmigrant visa holders will be enrolled in US-VISIT only if they enter the United States through an air or seaport that has US-VISIT capability.  As of January 5, 2004, US-VISIT will only process entries of visa holders at 115 airports and 14 seaports nationwide.  (See our list of these airports and seaports as of January 5, 2004).  At these ports, US-VISIT will be incorporated into the primary inspections booth. 

The first time DHS enrolls you into US-VISIT at a port, your travel documents will be scanned; a digital photo and inkless fingerprints of both index fingers will be taken and your name will be checked against several databases, including the National Crime Information Center (NCIC), and the terrorist watch list information from the State Department's TIPOFF database.

The enrollment process reportedly takes about 10-15 seconds.  Once you are enrolled in US-VISIT, your arrival information will be stored in the IDENT biometric database.

Subsequent Entries to the U.S.:  After you are enrolled in US-VISIT, you will still have to provide fingerprints and have a digital photograph taken upon each entry to the U.S.   Ideally, in the future, you will be able to swipe your biometric passport or visa, provide index fingerprints and photo, and be checked for identity against the US-VISIT database. 

How Do I Exit the U.S. Under US-VISIT?

You will be required to document your departure from the United States with US-VISIT only if you depart the United States through an air or seaport that has US-VISIT exit capability.  As of January 5, 2004, US-VISIT will have exit capability at the Baltimore-Washington airport in Baltimore, Maryland and at the Miami seaport.  However, DHS plans to expand the US-VISIT exit capabilities to other ports of entry throughout 2004.  The exit stations for US-VISIT are self-service kiosks that closely resemble automated teller machines (ATMs).  DHS has indicated that the kiosks will be located within the secure area of the air and seaports.  Attendants will be assigned to monitor the kiosk area and offer assistance.  During 2004, DHS will test various exit methods, possibly including a hand-held device that will permit DHS personnel to register the departure of nonimmigrant visa holders.

DHS will consider exit registration mandatory for visa holders who depart from an air or seaport with US-VISIT exit capability.  According to DHS, entry-exit information is constantly updated.  If you overstay your allotted time, US-VISIT will record the failure to depart.  

How Will DHS Handle NSEERS "Special Registration" Once US-VISIT is Implemented?

Special Registration (also known as NSEERS registration) at the ports of entry will continue even after the launch of US-VISIT in January.  The registration for NSEERS and enrollment for US-VISIT will continue to be separate processes until US-VISIT incorporates NSEERS, when the US-VISIT program is fully developed.

Persons subjected to call-in or port of entry Special Registration still must register their departure with NSEERS and must leave the U.S. through a designated port of departure.  There is no policy yet whether you would also have to register the departure through the US-VISIT program, if it is available at that port. 

Exemption from Special Registration: You may request exemption from Special Registration at a port of entry or at a consular post. At the port of entry, you would have to show good cause why you should be exempt, or unusual circumstances such as frequent trips to the United States.  The State Department may also exempt persons from Special Registration if an exception is in the national interest and will not compromise national security interests. 

What should I do to prepare?

You should take the following actions to prepare for the US-VISIT program:

• Prepare for delays at consular posts.  Appointments at consular posts are difficult to obtain, since all visa applicants between the ages of 16 and 60 are required to appear for interviews, as well as US-VISIT fingerprint and photograph.  Delays will also occur between the dates of an applicant’s interview and the date of visa issuance.  Visa issuance could potentially take days due to security checks.
   
• Plan for and expect delays upon entering and exiting the U.S through major airports and seaports after January 5, 2004. 
   
• Monitor announcements regarding exit control requirements diligently. 
   
• Understand that US-VISIT is a mandatory procedure.  Failure to provide the requested biometrics necessary to verify your identity and to authenticate travel documents may result in a determination that you are inadmissible to the U.S.
   
• You must document your departure if your departure is through a port with US-VISIT exit capability.  Failure to properly exit could affect your visa eligibility or potentially cause you to be removable from the U.S.  If you are entering the U.S. through a port that has US-VISIT capacity, but are not leaving through a port that has the exit capacity, you should maintain a copy of travel records and other documents as proof that you exited through a port without an operational exit kiosk.  No matter how you depart the U.S., you are required to surrender your I-94s (except for multiple entry I-94s)
   
• US-VISIT will permit DHS to calculate the duration of your presence in the U.S.  Such records may affect you in a variety ways such as: immigration benefit eligibility for overstays; one-year abroad requirements for H-1B and L-1 visas; time recapture petitions for H and L visas; two-year home residence requirements for J visas; physical presence requirements for substantial presence determinations under our tax laws; and, potentially in the future, LPR abandonment issues as well as time spent in the U.S. for naturalization purposes. 
   
• If you are subject to Special Registration, you are obliged to depart through a designated port of departure and must register your departure with the Special Registration system.
   

For more information on the US-VISIT program, visit the US-VISIT site by the Department of Homeland Security.

Adapted from AILA InfoNet at Doc. No. 04010841 (Jan. 8, 2004).  AILA Practice Advisory on the US-VISIT Program, by the AILA Border Issues Committee.