CBP/AILA Liaison Meeting Questions and Answers* Meeting February 18, 2010

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1 CBP/AILA Liaison Meeting Questions and Answers* Meeting February 18, 2010 *The following answers are the AILA liaison committee notes from the liaison meeting. 1. What is the Houston CBP policy and criteria used to determine whether a person applying for admission who CBP asserts may be inadmissible is referred to deferred inspection, issued a Notice to Appear at the Airport or detained? Are the policy and criteria from CBP s national headquarters or is it within the discretion of the local or regional CBP offices to determine? Answer: Each case is based on individual facts. Deferred inspection is used when an immediate determination on an issue of admissibility cannot be made at the port ofentry and presentation of additional evidence, further review of the case or file is required or similar action that can only be conducted at a deferred inspection office. Note it can take a number of hours for CBP to obtain an A file. Arriving aliens who are inadmissible may be issued an NTA and detained pursuant to INA 236. IAH decisions are consistent with CBP guidelines. There may be more frequent issuance of NTAs rather than referral to deferred inspection for persons who may be inadmissible. This is because aliens referred for deferred inspection appointments do not always appear. Once CBP issues the NTA, the appropriate party to approach about the possibility of cancelling the NTA is ICE legal. 2. What is the Houston CBP policy regarding holding or detaining a legal permanent resident (LPR) seeking admission when the LPR has a criminal conviction (post- 1998) that appears in the system? Would CBP detain, if so is there a maximum period of time CBP will hold a person? Answer: An LPR in this situation may be issued an NTA and may be subject to mandatory detention. EOIR makes the determination as to whether the alien is subject to mandatory detention. If subject to mandatory detention, the DRO with ICE along with EOIR is responsible for processing and detaining the individual. Additionally, CBP can hold an individual up to 48 hours before serving an NTA. 3. Recently a legal permanent resident returning to the U.S. was asked for the current residence address. The officer informed the individual that the current address stated was not the address the CBP showed on record. The legal permanent resident had submitted an AR-11 indicating the current address. Do CBP officers have access to address updates sent to USCIS on the AR-11 Address Change form? What is the source of the current address information in CBP records? Answer: CBP does not provide specific information about the data systems utilized. Typically, the address of the applicant for entry is not part of the primary inspection.

2 4. Is Houston CBP conducting investigations (such as secondary interviews) of persons in H-1B, L-1 or E-2 status related to their employment and/or eligibility for H-1B, L-1 or E-2 status either randomly or based on a particular criteria? If so, what criteria are used to determine whether a person in H-1B, L-1 or E-2 status will be subject a secondary investigation or inspection? What documentation does CBP require to confirm persons in H-1B, L-1 or E-1/E-2 are qualified employees employed by qualified sponsoring companies? In such an investigation, does CBP contact the attorney representing the employer or contact the employer for the H-1B, L-1 or E-1/E-2 to ensure complete and accurate information related to the company and the petition filed by the company is provided? Answer: Every person seeking entry is subject to inspection. Each person is inspected on his or her own merits. Persons in H-1B, L-1 or E status will be sent to secondary inspection if documentation is missing or fraud is suspected. CBP would not normally contact an attorney or employer during inspections. However there may be exceptions such as where there are fraud indicators. Houston CBP has seen several H-1, E- or L-1 fraud cases. Referral to deferred inspection is one option that may be utilized if a question arises about an individual s eligibility for these nonimmigrant categories. 5. This question concerns the application of 8 CFR 214.2(l)(11) and is a follow-up question to the previous response by Houston CBP indicating that all nonimmigrant aliens admitted under a blanket L would be given a 3 year validity period. We assert there are cases where the validity period should be linked to the period of the assignment indicated on the Form I-129S, Nonimmigrant Petition Based on blanket L petition and the blanket L-1 visa. For example, an alien arriving on January 14, 2010 might be given a Form I-94, Arrival/Departure Record that indicates a January 13, 2013 expiration date even though the Form I-129S and L-1 visa have expiration dates of January 13, A blanket L petition may be approved for an initial period of three years. 8 CFR 214.2(l)(7)(i)(B)(2). A blanket petition may be extended indefinitely. id. The beneficiary of a blanket L petition may be admitted for three years even though the initial validity period of the blanket petition may expire before the end of the three-year period [of the alien s admission]. 8 CFR 214.2(l)(11). We have always interpreted this language to mean that, during the initial three year period of a blanket L petition s validity (i.e. before the blanket L petition is extended indefinitely), an individual beneficiary may be admitted to the U.S. in L status for a full period of three years, pursuant to a Form I-129S, even though the underlying blanket L petition will expire in less than three years. We have not previously interpreted the language in 8 CFR 214.2(l)(11) to authorize beneficiaries of an indefinite validity blanket L petition to always be admitted in

3 L-1 status for three years regardless of the period of time requested on Form I- 129S. It appears that CBP is treating blanket L visas like E visas. (A nonimmigrant alien with an unexpired E visa may be admitted for a period of two years each time he applies for admission regardless of the visa s expiration date.) We are concerned that if a beneficiary of an indefinite validity blanket L petition is admitted and remains in the U.S. for three years in excess of the period of time requested on Form I-129S, he may subsequently be determined to be present in the U.S. in violation of his status since the date indicated on Form I-94 would appear to be supported neither by an initial blanket L petition pursuant to 8 CFR 214.2(l)(11), nor by a Form I-129S petition based on an indefinite validity petition. Is our interpretation of 8 CFR 214.2(l)(11) correct? Should blanket L beneficiaries be admitted for a uniform three year period or for the period of time indicated on Form I-129S? If our interpretation is correct and blanket L beneficiaries should be admitted for the period of time indicated on Form I-129S, will CBP correct a Form I-94, Record of Admission/Departure that indicates admission for a uniform three year period of time? Answer: If an individual is otherwise eligible for blanket L-1 status, as long as the petition is valid at time of admission, the person will be admitted for a period of 3 years. If the person later departs and re-enters the US at a later date, irrespective of the balance of time left on the petition, the individual will be re-admitted for a 3 year period. For example, if a person is admitted on they will be granted admission until 1/11/13. If that same person departs 1/21/12, he or she will be admitted until An I-94 will only be corrected if it was issued in error. Note A follow-up question will be forwarded for consideration by the National AILA/CBP committee to be included in the national liaison question and answer. There is a concern that an I-94 will be issued for a period of time beyond the date a person in blanket L status is authorized to work under the blanket L-1 petition. 6. There have been several cases where Cuban parolees and refugees have been issued corrected I-94 parole documents that are only valid for 90 days and the individuals were informed they would have to return to deferred inspection every 90 days to have the I-94 renewed. We request that CBP issue Cuban parolees and refugees an I-94 status valid for 2 years or not less than 1 year. As previously discussed, persons issued an I-94 for less than a one-year period have tremendous difficulty obtaining employment authorization documents and drivers licenses. See attached, USCIS instruction to issue Cuban parolee I-94 documents for a 2 year period from John M. Bulger, Chief, Office of Field Operations USCIS, February 3, Answer: CBP will, consistent with CBP internal policy, determine the period of admissibility on a case by case basis. Usually CBP at IAH will only grant a 90 day

4 validity period if an NTA will be or has been issued. A follow up question will be submitted to request all I-94s for Cubans be granted for at least a one year period. Persons issued an I-94 for only 90 days may want to go to CIS to apply for extension of parole. 7. Please provide an update on the Global Entry system. Where has been deployed, have there been any particular issues or concern that have arisen since deployment, how many travelers have registered. Has Global Entry helped shorten lines and move the Trusted Travelers through the primary inspections area more quickly? Answer: No issues or concerns that have arisen since deployment. As of February 2010, 46,000 Global Entry applications have been submitted and 36,000 persons are actively enrolled. There have been over 152 million kiosk uses. GlobalEntry speeds up the process for individuals but the admission lines are not significantly reduced since Global Entry only applies to a small portion of travelers. Global entry kiosk locations and application locations can be found at the CBP website 8. Can CBP provide a full list of Global Entry questions used on the on-line application process? We have seen at least one letter referencing a long-ago arrest, but the attorney was unable to find any questions on-line where the U.S. citizen traveler could reveal this information. Answer: There are four (4) questions in the application available online regarding criminal issues. 9. Will any court action of any kind mean a U.S. citizen cannot qualify for Global Entry? The referenced case was denied, even though the court dismissed the charges on a misdemeanor and there was no conviction. Answer: all applicants are interviewed and accepted or denied on a case by case basis, criminal arrests and other issues are taken into consideration. If a person using Global Entry is flagged due to an arrest record, the record can be forwarded to the Global Entry program headquarters so they can determine whether it is possible to override the flag for Global Entry processing if the person remains eligible for the Global Entry program. If a Global Entry traveler is referred to secondary, they will be expedited in secondary. The Global Entry traveler should bring their kiosk receipt with them to secondary. 10. How often does Houston CBP encounter ESTA registrations where entry is delayed due to the visitor having a name that is similar to a person who is barred from entry? How long does it take to resolve these situations? Does CBP recommend that persons who have this type of ESTA issue apply for a B-1/B-2 visa at a US Consulate?

5 Answer: This type of statistic is not being kept. IAH CBP is not aware of delays due to an ESTA registered visitor having the same name as a person with an ESTA issue. If an individual is denied ESTA registration, they may apply for a visa or other relief through DHS TRIP. ESTA application corrections can be called into ESTA from the POE if there is mistake on application. 11. A person entering for the first time after registration under the Global Entry program was sent to secondary for some time. Are there special steps that must be taken the first time a person enters under the Global Entry program if registered outside the US? Or if registered inside the US? Is there training required for CBP officers related to persons entering under the Global Entry program? How many Houston CBP officers have received Global Entry training? Answer: There are special steps, such as document verification, that must be taken when an individual first enters using Global Entry program. All local CBP officers have been trained on the requirements for Global Entry. 12. Could CBP provide a sample of an entry receipt issued (via the kiosk) to Global Entry program travelers with an explanation of the notations or codes? A recent Global Entry traveler provided a copy of a print out and the details such as date of admission, period of admission and port of entry were not obvious. There is a section that appears to indicate entry was made at GE KIOSK. Answer: Global Entry visitors will receive two receipt print outs. They will receive a PG ( passage granted ) receipt and, if applicable, an I-94W receipt to be surrendered when exiting the U.S. The I-94W receipt will state the class of admission, the period of admission, the passenger s information and the Port of Entry designation. If the passenger only receives a receipt has an X, signifying passage not granted, he is sent to secondary inspection. 13. Has Houston CBP experienced any improvements or difficulties related to the implementation of the Electronic System for Travel Authorization (ESTA) registration requirements for visitors utilizing the Visa Waiver Program (VWP)? Answer: There have been no difficulties. Currently, ESTA is in the informational phase and is not yet in full enforcement phase. Therefore, persons failing to complete ESTA registration prior to arrival at the POE are only being notified of the requirement to register prior to travel. An alien applying for admission under the VWP may be denied admission to the U.S. upon the third application for admission without an ESTA registration.

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