Friday, March 7, 2008

If you have a Green Card . . .

. . . you should be aware that the U.S. Citizenship and Immigration Services (USCIS) has issued revised instructions for USCIS Form I-131, Application for Travel Document (re-entry permit) that requires a new procedure for collecting biometric data on travelers.

The new instructions for Form I-131 require that applicants for re-entry permits who are ages 14 through 79 provide biometrics (fingerprints and photographs) at an Application Support Center (ACS) before departing from the United States. Applicants also are strongly encouraged to apply, whenever possible, well in advance of their anticipated travel dates to allow time to attend their ASC appointments and to receive their travel documents. Shortly after filing an I-131 form for a Re-entry Permit, USCIS will mail the applicant his or her receipt and an ASC scheduling notice. The Form I-131 instructions also provide guidance for certain persons who are abroad at the time of filing to visit a U.S. Embassy or consulate for fingerprinting, although all applicants are urged to file before leaving the United States.
The instructions also discuss the requirement for applicants for re-entry permits who are in the United States to pay the $80 biometrics services fee, or to submit a biometrics fee waiver request with sufficient documentation to support their inability to pay the fee. As in the past, the application fee for the I-131 form cannot be waived.
Obtaining a re-entry permit before traveling abroad for an extended stay is something many Green Card holders forget, and most of the time the border inspector is fairly lenient with returning permanent residents. But, the law is clear that if a Green Card holder leaves the United States for anything other than a temporary purpose, he or she loses permanent resident status automatically. This means that when the Green Card holder attempts to return to the U.S. he or she can be detained at the port of entry and held pending a determination of abandonment by an immigration judge and then denied entry. The leading administrative case on this subject is Matter of Kane (15 I&N 258, BIA 1975). That case involved a Green Card holder who lived 11 months out of each year in Jamaica, where she ran a boarding house, and then returned to the United States for one month, where she rented a room by the week. The Board of Immigration Appeals held that the Green Card holder had abandoned her residence in the U.S. and was no longer entitled to enter as an immigrant.

Filing Form I-131, in which you set forth the temporary nature of the visit abroad, before traveling reduces considerably the risk of having re-entry problems.

Tuesday, March 4, 2008

A boon to travelers? Or an invasion of privacy?

Imagine landing at international Terminal 5 at ORD, walking at a comfortable pace through the long corridors, picking up your luggage at baggage claim, and walking out to your waiting taxi, all with just a wave and smile to the U.S. border inspectors. A dream? Well, at the moment this is still a dream, but the U.S. government is working hard to make it a reality. The U.S. State Department has been issuing electronic passports since 2006. The passports contain a tiny radio frequency identification (RFID) chip which can automatically transfer biometric and other information to the border inspector without the need for manual entry. This speeds up processing at the border, but is still a long way from the scenario I am waiting for.

Now, since February 1, 2008, the U.S. State Department has been accepting advance applications for the new Passport Card (also called the PASS Card). The new card will contain a different type of RFID chip than the e-Passport and will be used at 39 specially designated land border points of entry that will have RFID lanes. The PASS Card toting traveler will still not be able to saunter alone over the border, but the RFID chip will send out a information that will be received by the border inspector a few minutes before the traveler arrives at the checkpoint. When the traveler steps up to the counter, the border inspector will already have the data on his or her computer screen and can then admit or deny entry as appropriate.

The new PASS Cards are controversial. 4000 comments were received regarding the proposed rule. Among those submitting comments were: four Members of Congress, Senators Hillary Clinton and Charles Schumer of New York, Senator Patrick Leahy of Vermont, and Representative Louise Slaughter of New York; the governments of Canada and two of its provinces (Manitoba and New Brunswick); a Native American government (Haudenosaunee Confederation, New York); and dozens of city, county, and municipal governments. Also represented are the United States Postal Service (USPS), the Air Transport Association, over two dozen technology companies and privacy interest groups, five tourism interest groups, and three offshore drilling concerns.

The vast majority of the comments were generated from an e-petition launched by Citizens Against Government Waste opposing the choice of technology. Independent of the e-petition, an additional 28 comments were received regarding technology. In addition, over 150 comments voiced opposition to the change in the amount of the passport execution fee. Other key topics included security issues (21), privacy issues (18), and potential negative economic implications, including a decrease in tourism on both sides of the border (14). Only a small number of comments opposed the idea of the passport card itself, and over 20 comments specifically voiced support for the passport card.

The concerns about the technology are tied to privacy issues. The e-Passport technology is “proximity read” technology that can only be read at the counter. The PASS Card is “vicinity read” technology that can be read over a distance of perhaps 20-30 feet. Critics say that the new chip being used in PASS Card is not secure enough and that hackers close to the border will be able to access the information. The U.S. State Department has countered by saying that no personal information will be transferred. Instead the chip will send out a unique ID number that will allow the border inspector to access the traveler’s personal information in the U.S. government database.

For expatriates, the new PASS Card will only be interesting if you live in Canada, Mexico, the Caribbean, and Bermuda and commute to the United States often by land or sea. The PASS Card cannot be used for air travel.

Link to information on the US Passport Card

Link to information on the US Electronic Passport