Passport Requirements to Change in 2007 as Part of the Western Hemisphere Travel Initiative

The Intelligence Reform and Terrorism Prevention Act of 2004 requires that byJanuary 1, 2008, U.S. Citizens and nonimmigrant aliens will only be able to enterthe United States with passports or with alternative documents designated by theSecretary of Homeland Security. On August 11, 2006, the Department ofHomeland Security and Department of State published a Notice of ProposedRulemaking (NPRM) in the Federal Register that, if made into a final rule, wouldbegin the phase-in of the new passport requirement, also known as the WesternHemisphere Travel Initiative (WHTI). The NPRM applies only to air and seaports of entry and not to land ports of entry.

Individuals Affected By WHTI Requirements as of January 2007

Under the NPRM, starting January 8, 2007, all U.S. citizens and nonimmigrantaliens would be required to present a passport or alternative identity documentwhenever entering the U.S. at an airport or seaport, even from within theWestern Hemisphere. U.S. Permanent Residents are not affected by the WesternHemisphere Travel Initiative, and would not need to present passports to enterthe U.S. They could continue to present I-551 "green cards" or other evidence ofpermanent resident status.

Individuals Exempted From WHTI Requirements

Specifically exempted from the passport requirement would be individuals onpleasure vessels used exclusively for pleasure and which are not for thetransportation of persons or property for compensation or hire. (A day sailor orbareboat charter that is rented without a captain or crew and is used forrecreational or personal purposes would be considered a pleasure vessel). Alsoexempted would be travelers by ferry and U.S. citizen members of the armedforces on active duty. Spouses and dependents of military members would,however, be required to present a passport or other acceptable entry document.

Other Acceptable Identity Documents

Other documents deemed acceptable to denote citizenship and identity, in lieu ofa passport, would include a Merchant Mariner Document (or "z-card") for U.S.citizen crewmembers; and a NEXUS Air Program Membership card. It should benoted that Mexican BCC card holders are not exempt from the passportrequirement.

Application to Native Americans

The NPRM includes American- and Canadian-born Native Americans in thegroups of people who will be required to present a passport or other acceptableentry document to enter the U.S. at an airport or seaport. This requirementarguably violates the Jay Treaty and Section 289 of the Immigration andNationality Act, which states,

Nothing in this title shall be construed to affect the right of American Indiansborn in Canada to pass the borders of the United States, but such right shallextend only to persons who possess at least 50 per centum of blood of theAmerican Indian race.

INA 289 has previously been interpreted by one Federal District Court asintending topreserve the aboriginal right of American Indians to move freely throughout theterritories originally occupied by them on either side of the American andCanadian border, and thus, to exempt Canadian-born Indians from allimmigration restrictions imposed on aliens by the Immigration and NationalityAct.See, Akins v. Saxbe, 380 F. Supp. 1210 (D. Me. 1974). This logic has beenrecognized by the Board of Immigration Appeals in Matter of Yellowquill, 16 I &N Dec. 576 (BIA 1978), holding that,We have decided to accept the reasoning in Akins v. Saxbe, supra, as beingcorrect and applicable to the deportation provisions of the Act. American Indiansborn in Canada who are within the protection of section 289 of the Act are notsubject to deportation on any ground.

The NPRM distinguishes the passport requirement for airport and seaportadmissions from previous litigation under INA 289 based on the fact that,"Historically, the courts have addressed the right of Native Americans born inCanada to 'pass the borders of the United States' in the context of land bordercrossings. Subsequent case law has not expressly addressed the extension of theright to 'pass the border' without sufficient proof of identity and citizenship." (Seepage 46163 of the NPRM). It remains to be seen whether this logic is persuasiveor not. Anyone with a vested interest in the ability of Native Americans to enterthe U.S. at air and sea ports of entry without passports may wish to submit awritten comment to the NPRM per the instructions in the NPRM. Comments tothe NPRM are due by September 25, 2006.

USCIS Clarifies Language in Child Status Protection Act

Section 6 of the Child Status Protection Act (CSPA) provides that where an I-130petition was "initially filed" for a family-based "2B" category for an unmarriedson or daugther (over age 21) of a Permanent Resident, and the petitioningparent later naturalizes, the petition shall automatically be upgraded to family-based first preference as the unmarried son or daugther of a U.S. citizen.

The words "initially filed" in the statute are problematic. In a case where apetition is initially filed in the family-based "2A" category for an unmarried child(under age 21), it automatically becomes downgraded to a family-based "2B"category petition when the minor child turns 21. In the past, USCIS interpretedsection 6 of the Child Status Protection Act as not permitting the automaticupgrade of a petition that was initially filed as a family-based "2A" petition, thatwas later downgraded to a "2B" petition because the child turned 21, and wherethe petitioning parent then naturalized. The rationale was that because thepetition was initially filed as a family based "2A" petition, CSPA section 6 did notapply.

In a memo published by USCIS on June 14, 2006,USCIS has reinterpreted thewords "initially filed" in CSPA section 6 to mean that "the petition must havebeen initially filed for an alien who is now in the unmarried son or daughterclassification," rather than for someone who was over age 21 at the time the I-130was filed.

Texas Service Center Clarifies Policy on Multiple I-140 Petitions

In a recent meeting with the American Immigration Lawyers Association, theTexas Service Center stated its policy that multiple I-140 petitions can be filed forthe same beneficiary, and that more than one I-140 can be filed based on tehsame approved labor certification. They further stated that there does not need tobe a withdrawal of one I-140 petition for adjudication of a subsequent I-140.However, they recommend that if another I-140 is filed that copies of anyapproved I-140 for a different classification based on the same labor certificationalso be submitted.

However, under the current bispecialization rules, it is impossible to predictwhether an I-140 petition will be adjudicated by the Nebraska or the TexasService Center. All I-140 petitions are submitted to Nebraska and are split up sothat half are sent to Texas for adjudication. It is unclear whether the NebraskaService Center has taken the same position on the filing of multiple I-140petitions based on the same labor certification application.

USCIS Memo Provides Guidance on Eligibility for Exemption from the H-1B Cap Under AC21 Section 103

Section 103 of the American Competitiveness in the Twenty First Century Act(AC21) makes exempt from the H-1B cap aliens who are offered employment atan institution of higher education, a related or affiliated nonprofit entity, anonprofit research organization, a related or affiliated nonprofit entity, anonprofit research organization, or a governmental research organization.

In an internal memorandum published by USCIS on June 6, 2006, USCISclarifies that in order to be considered exempt from the cap under section 103,the alien need only be employed at a qualifying institution, and need notnecessarily be employed by such an institution, so long as the alien's employment"directly and predominately furthers the essential purposes of the qualifyinginstitution." In other words, the memo states, there must be a "logical nexusbetween the work performed predominately by the beneficiary and the normal,primary or essential worked performed by the qualifying institution."

USCIS to Disclose Certain Criminal Information About I-130 Petitioners to I-130 Beneficiaries

Per an internal USCIS memorandum circulated May 3, 2006, USCIS has advisedadjudicators to disclose certain information relating to a visa petitioner's criminalhistory to potential visa beneficiaries or their legal guardians. Disclosure will belimited to those portions of the petitioner's criminal history involving violence orsex offenses that are directly relevant to the "health or safety" of the potentialbeneficiary. The memo gives the example that the conviction of a petitioner as asexual predator should be revealed to the guardian of a minor child who wouldreside with the sexual predator.

If the information is publicly available such as in a public conviction record, theadjudicator may share it with the beneficiary with appropriate supervisoryapproval. Otherwise, where there is adverse information in the USCIS recordsrelated to the petitioner's criminal history, the adjudicator must obtainpermission to disclose the information from the government agency thatprovided the adverse information. The beneficiary will be notified at an in-personinterview where possible, and the visa petitioner must be informed of thedisclosure in writing. Disclosure of such information does not necessarily resultin denial if the beneficiary gives informed consent to continue with the petition.

Vermont Service Center Transfers Thousands of Cases to the Texas and California Service Centers

USCIS published a Public Notice on July 26, 2006 stating that due to anunusually high workload at the Vermont Service Center, they have recentlytransferred 5,000 petitions for nonimmigrant workers (I-129) to the TexasService Center and 22,000 I-130 immigrant petitions to the California ServiceCenter for adjudication. In practice, it appears that some I-360 petitions havealso been transferred from Vermont to the California Service Center, though thiswas not announced.

Why the heavy workload, you ask? It doesn't take much to speculate that the newbispecialization program is not quite as efficient as USCIS had hoped.