NMD April 2013 Webinar: Customs and Border Protection Practice Tips

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1 NMD April 2013 Webinar: Customs and Border Protection Practice Tips RESOLVING PROBLEMS AT THE PORT OF ENTRY I - 94 AUTOMATION LESLIE DELLON, ESQ., L. DELLON IMMIGRATION LAW, LLC ARON FINKELSTEIN, ESQ., MURTHY LAW FIRM

2 Grounds of Inadmissibility Source of Authority: INA 212(a)(1) (a)(10) Generally Presumption of immigrant intent Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979) Need to demonstrate eligibility for status that is being sought

3 Health-related grounds INA 212(a)(1) Physical / Mental condition or communicable disease of public health significance (Class A) Drug / Alcohol abuse /addiction Class B conditions are substantial departures from well-being not a basis for inadmissibility (see CDC Technical Instructions)

4 INA 212(a)(2) conviction of a crime involving moral turpitude (CIMT) crimes offensive to American ethics and accepted moral standards. Usually involve theft, dishonesty, and fraud and/or specific intent to commit crime drug offenses or trafficking multiple convictions prostitution or commercialized vice Criminal grounds

5 Security related grounds INA 212(a)(3) Espionage, sabotage, terrorism, evading export controls, or activities to overthrow the U.S. government

6 Public charge INA 212(a)(4) Inadmissible if the foreign national will rely on public assistance benefits Will consider foreign national s age, health, family status, financial assets, education, skills and affidavit of support

7 Illegal entrants or immigration violators INA 212(a)(6) Applies to foreign nationals present without admission or parole (EWIs) Other immigration violators include those who commit misrepresentation, false claim to USC, in absentia removal

8 Fraud or Misrepresentation INA 212(a)(6)(C)(i) Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

9 Aliens previously removed & unlawful presence bars Previously removed under 212(a)(9) Seeking admission after prior removal within last 5 year (or within last 20 years if subsequent removal or if convicted of an aggravated felony 3 & 10 year bars for ULP 212(a)(9)(B)(i),(ii)

10 Potential Consequence: Expedited Removal Applies to those who are inadmissible under INA 212(a)(6)(C) or 212(a)(7). 5 years inadmissibility Alternative is withdrawal of application (if CBP gives option)

11 YOU CAN MAKE A DIFFERENCE

12 Criminal conviction CBP officer entered an inadmissibility hit based on shoplifting conviction and canceled foreign national s F-1 visa. Petty offense exception applied in this case. Attorney can contact CBP to request removal of the hit. The individual was able to obtain a new F-1 visa and re-enter the U.S. once the hit was removed.

13 What is an I-94 Correction? Common CBP mistake is using the petition expiration date (PED) from the visa as the I-94's end validity date instead of taking the last validity date on the individual's I-797. Corrections of CBP errors can be remedied by the issuance of a new I-94 card. Applicants for admission also make errors, including failing to present their most recent I-797 or not possessing a passport valid for the same period as the I-797.

14 LCA issues for H1-B workers H1-B worker did not have an LCA for 1 of her work locations and when questioned by CBP, she was given deferred inspection and 2 weeks to overcome concern about her prior H1-B status. Filed new LCA and amended H1-B petition Attorney may want to accompany client to deferred inspection to ensure I-94 card is issued for H-1B for full validity period

15 Top 10 Practice Pointers When Interacting with CBP 1. Always be respectful. 2. Check I-94 cards before leaving Primary Inspection. 3. As long as a visa foil lists a petition expiration date (PED) the CBP line officer does not need to see the actual petition approval. 4. Can apply for a waiver using Form I-193 at the POE. 5. No formal way to challenge an ER order. 6. Research, review and write a succinct argument to the port director and/or DHS TRIP 7. FOIA! FOIA! FOIA! 8. Communicate to the POE before the applicant appears before CBP if possible 9. Send thank you cards / s when appropriate 10. Advise your client never to say, Do you know who I am?!

16 Form I-94 Automation Interim Final Rule (IFR), effective April 26, Expands definition of Form I-94 to include DHS collection of arrival/departure and admission or parole information in electronic form. Implemented within 4 weeks, starting April 30. BWI and Dulles automated during Week 2.

17 No more paper Form I-94? Not exactly. Land borders not automated. Air and sea ports only. Nonimmigrant arrivals will receive passport stamp with class of admission, admission and expiration dates, but can print out Form I-94 at If request print out on arrival, must go to secondary. Not recommended. Refugees, asylum applicants and parolees will be given paper Form I-94s. EOS/COS approval notices will still have I-94s.

18 CBP web site When passport is stamped, travelers will receive tear sheet with access/printing instructions. Starting April 30, 2013, data will be available same day if arrive at automated POE. Contrast 90 days for admission data to be entered into the system, if not automated. Only while in U.S., traveler (or representative) will have access to record of arrivals. For now, the record will cover only the prior 2 years.

19 Employment Verification A nonimmigrant who needs to provide an admission number for section 1 of Form I-9 and is relying on CBP admission (i.e., does not have a USCIS-issued Form I-94) must get the admission number from the CBP web site. Eligibility documentation for Section 2 still requires paper Form I-94 with foreign passport. According to CBP, the foreign national s name on the Form I-94 will match the name on the passport. If so, this will comply with the I-9 requirement for employer acceptance of a Form I-94.

20 Potential Problems with Automation Inaccurate or no record of departure. Advise clients to obtain/maintain contemporaneous proof. If depart from land border, no record. Automatic visa revalidation. CBP officer will need to override the departure date in the system when a person seeks readmission under 22 C.F.R (d). Should lawyers advise clients to print out Form I-94? Can turn in paper Form I-94 upon departure or mail Form I-94 to London, KY as before.

21 Questions?

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