Immigration Law Advisory

The  Immigration Law Advisory summarizes legal developments of interest to our clients and friends of the firm. It is published on a periodic basis as developments  warrant.

As the U.S. Government struggles to deal with the outstanding traffic into and out of the country, its efforts to protect its borders are extending to other countries. Annually, about 730 million people travel on commercial aircraft; more than 700 million pieces of baggage are screened for explosives; 11.2 million trucks and 2.2 million rail cars cross into the  United States; and 7,500 foreign vessels make 51,000 calls in  U.S. ports.  The U.S. Department of Homeland Security (DHS) recently signed an agreement with the European Union (EU) wherein it will receive Passenger Name Record data relating to flights between the  United States and EU member states. It has also signed a Cargo Security Initiative contract with the EU that will allow placement of smartboxes in cargo traveling to the  United States to track the shipment and ensure it is not disturbed after the initial inspection. Another initiative will place DHS officers at EU airports to pre-inspect travelers to the  United States; the pilot program is already underway in  Amsterdam. Foreigners will still have to be cleared and admitted upon arrival at the  U.S. port; the intent is only to  weed out those without the proper visa to enter the country and give government officials an opportunity to perform sophisticated security checks while the person is en route to the  United States. 

DHS has also continued to tighten  U.S. borders.  As of July 1st it is requiring vessels, maritime facilities and ports around the country to implement additional security measures as part of the domestic Maritime Transportation Security Act that establishes a new baseline of security. It has also created the Office of Screening Coordination which will act as a hub of expertise on border control and is charged with the task of extending its policing authority, undertakings which will likely face increased resistance. For instance, the Computer Assisted Passenger Prescreening System (CAPPS II) has been mired in controversy since it was announced in 2003. It is a system that will assess the likelihood that travelers are who they claim to be and perform a risk assessment to detect individuals who may pose a terrorist-related threat or who have outstanding Federal or state warrants for crimes of violence. According to DHS, the roll-out of CAPPS II is “on hold” because of privacy concerns. DHS is also struggling with a way to restart the Transit Without Visa program, which has burdened airlines and international passengers traveling through the  United States. And the U.S. Supreme Court has recently held that foreigners detained for national security concerns are still entitled to due process protections, a decision that will necessitate some reconfiguration of DHS regulations and procedures.   

At the same time, the U.S. Department of State (DOS) is focusing on protecting U.S. citizens traveling abroad. It has recently issued strong travel advisories for the Middle East and North Africa Haiti Bahrain, and Bolivia.Less severe travel advisories have also been issued for:Afghanistan Algeria Bosnia Burundi Central African Republic Colombia Cote d’Ivoire, Democratic Republic of the Congo Indonesia Iran Iraq Israel Kenya Lebanon Liberia Libya Nepal Nigeria Pakistan Saudi Arabia SomaliaSudan the West Bank and GazaYemen, and Zimbabwe. DOS has also issued warnings of the continuing threat of terrorist actions and anti-American violence againstU.S. citizens and interests overseas. U.S. Government facilities worldwide remain at a heightened state of alert.

When traveling abroad, citizens must depart the United States with a U.S. passport that is valid for at least six months beyond the dates of the trip irrespective of other nationalities / passports held, and that contains at least two completely blank pages. Two copies of the passport identification page should be made and left with a secretary or family member staying in the United States to keep in case of an emergency. If the stay abroad will be for longer than two weeks, the  U.S. citizen should notify by phone or register in person with the  U.S. embassy in the given country, so the embassy can assist in the event of an arrest or problem with the local authorities.  

No visa is required for U.S. citizens traveling for less than 90 days as a visitor for business or pleasure to countries participating in the visa waiver program which include but are not limited to: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxemburg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.  It is advisable to check the consular website for the destination for updated information on visa requirements and travel restrictions, as these are constantly changing. Sometimes, it can take several days or weeks to obtain the visa. The websites usually include health or immunization requirements which must be heeded before travel. Travel regulations for non-U.S. citizens are generally different even for a family member on the same itinerary. Moreover, there are now restrictions regarding travel outside the  United States with a minor child if both parents are not present. The parent should carry a notarized statement from the parent who is not traveling with the minor child, indicating that approval of travel and authorizing decisions pertaining to the health and welfare of the child while outside the  United States. 

Please contact Lynda Zengerle (202-429-8170) , lzengerle@steptoe.com, if you would like to discuss any of these specific issues.