Travelers beware: CBP can search your electronic device

As the number of border searches of electronic devices performed by United States Customs & Border Protection (CBP) continues to increase, it is imperative that travelers remain informed about the current policies in place.

In January, CBP issued a new 2018 customs directive that clarifies that officers may not to use your device to access information that is solely stored remotely (such as on the cloud) during a basic search. Additionally, without reasonable suspicion of criminal behavior or a national security concern, they should not copy the data on your device or connect it to an external device to analyze the contents. Officers are also instructed to take care not to make changes to the content of your device during a search.

When you cross the border, what can you expect during an inspection performed by a CBP officer? According to Secretary of Homeland Security Kirstjen Nielsen, officers are free to ask for your cell phone, laptop or tablet -- and your passcode. They can request that you turn over your unlocked phone and refusing to comply will not prevent CBP from confiscating your device. If you do refuse, you could possibly be detained for an indeterminate amount of time while they review and analyze the contents of your device. CBP can also retain your device for further review; they are not required to return it to you before you leave the port of entry.

Although the directive introduced in January includes guidelines for what CBP should or should not do, there is still considerable leeway when it comes to the search and seizure of electronic devices. The Electronic Frontier Foundation, a nonprofit organization devoted to defending civil liberties in the digital world, pointed out in a recent report that this policy is “full of loopholes and vague language” that allows officers to encroach upon travelers’ constitutional rights. As the directive is written, if “reasonable suspicion” exists, CBP officers are permitted conduct what is considered an advanced search. In this case, an officer can connect external equipment to a traveler’s electronic device and review, copy and/or analyze its contents.

If you are alarmed by the potential violation of your privacy while crossing the border, you’re not alone. Neema Singh Guliani, legislative counsel to the American Civil Liberties Union (ACLU), noted that “this policy falls far short of what the constitution requires – a search warrant based on probable cause.”

As it stands, here are measures that travelers can take prior to crossing the border in an effort to protect their privacy:

• Review what is on your phone – photos, apps, search histories – before crossing the border, taking into consideration that anything stored on your device is fair game in the event that an officer requests it. Store anything sensitive or private on a secure cloud storage account.
• Only bring what’s necessary with you. If you can avoid traveling without your laptop or tablet, leave it at home.
• Bring a travel-only phone (a blank “burner” phone) or laptop that does not contain any sensitive information.
• Set your phone to airplane mode prior to crossing the border. The new directive instructs CBP to disable network connectivity as they are to avoid intentionally retrieving information that is solely stored remotely. They are supposed to ask you to disable connectivity or do so themselves. Err on the side of caution and change your settings ahead of time.
• Know your rights. Supervisory approval is required in order for a CBP officer to detain your device after you depart the port of entry. A supervisor is also supposed to approve and, if at all possible, be present for an advanced search.
• If you have provided your passcode for an officer to inspect your electronic device, be sure to change it afterword. CBP is directed to delete or destroy passcodes after a search is conducted. However, it is advisable to change all passcodes to ensure that your information stays secure.

For further information:

Visit CBP's official website: https://www.cbp.gov
Find updates from civil liberties advocates:
The Electronic Frontier Foundation: https://www.eff.org
American Civil Liberties Union: https://www.aclu.org

New I-94 Website Feature Helps Foreign Nationals Avoid Overstaying in the U.S.

U.S. Customs and Border Protection has recently announced that they will now remind travelers via email and a new feature on the I-94 website of the last possible date they must depart the U.S. to comply with the terms of their admission. Currently, only eligible Visa Waiver Program travelers can utilize the new “Compliance Check” feature on the I-94 website to check how much longer they can legally remain in the U.S. without overstaying the terms of their admission. However, CBP has advised that further updates to the I-94 website are expected to incorporate additional nonimmigrant travelers.

To check the status of their admission in the U.S., eligible travelers can visit the I-94 website, click on the “View Compliance” icon and enter their name, birthdate, passport number and passport country of issuance. This check will inform travelers of how many days are remaining on their admission or how many days they have remained in the U.S. past their admitted until date.

If a traveler has overstayed the terms of their admission, the new I-94 website feature will provide the individual with information regarding what to do next. An overstay is someone who was lawfully admitted to the U.S. for an authorized period, but remained in the U.S. beyond his or her lawful period of admission. Overstaying the terms of your admission is significant as many overstays are not eligible to adjust or extend their status in the U.S. and in some cases, may trigger unlawful presence bars when they ultimately depart the U.S.

Although the new “Compliance Check” feature is currently only available to eligible Visa Waiver Program travelers, all travelers can check their admit until date on the I-94 website. To check their admit until date, travelers can click the “Get Most Recent I-94” icon and enter their traveler information (name, birthdate, passport number and passport country of issuance). It is important for travelers to be advised of their admit until date as periods of admission can vary widely depending on the traveler’s class of admission and/or visa type. For example, individuals traveling to the U.S. as B1/B2 visitors are admitted for a fixed period of time whereas students traveling to the U.S. in F-1 status are admitted for duration of status (D/S), which is based on the completion of a degree program.

Form I-94, Arrival/Departure Record, is of utmost importance for nonimmigrant visitors as it provides proof of their lawful admission to the U.S., which is necessary to verify alien registration, immigration status and employment authorization. Notably, in May 2013, CBP automated the I-94 system for travelers arriving to the U.S. by air and sea. The automated system eliminated the need for paper forms and manual data entry by allowing CBP Officers to create the I-94 record at the time of inspection.

More recently, in September 2016, CBP also launched an online I-94 application and payment option for travelers arriving at a land port of entry. Individuals may provide their biographic and travel information and pay the $6 fee online up to seven days prior to their entry.

These changes/upgrades to the I-94 system demonstrate CBP’s continued commitment towards improving the international travel experience for both U.S. citizens and visitors to the U.S. The new I-94 website feature makes it much easier for travelers to find their last possible departure date and to comply with their terms of admission.

Consequences Arising from the Presidents Executive Order on Immigration

On January 27, 2017, President Trump signed an Executive Order (EO) “Protecting the Nation From Terrorist Attacks by Foreign Nation” which became effective immediately.  Over the course of the last two days, the EO has resulted in uncertainty, fear, litigation and support for the immigrant community. 

Below are some of the highlights that we believe may directly impact our firm’s clients: 

Immediate Suspension of Issuance of Visas and Admission to the U.S. for Nationals from Designated Countries

The EO immediately suspends the issuance of visas and admission to the U.S. of nationals from the following seven (7) designated countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - for a period of 90 days (excludes those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C-2 visa for travel to the United Nations). The EO indicates that additional countries could be added to the list as determined by DHS and DOS. After the 90 day period, travel will not be immediately restored – instead, countries must undergo various vetting procedures. During this time period, the EO does allow U.S. Dept. of State (DOS) and U.S. Dept. of Homeland Security (DHS) to issue visas, admit or grant other immigration benefits to affected individuals on a “case-by-case” basis and when it is in the “national interest”.

Who is impacted in the meantime?

• Dual Nationals
  • The EO isn’t clear on the definition of ‘from’ the designated countries – in an abundance of caution, it may be best to interpret the term as broadly as possible – to include passport holders, citizens, nationals, dual nationals, etc.
• U.S. Nonimmigrants & U.S. Immigrants from a Designated Country
  • This includes those individuals who were outside the U.S. at the time the EO was signed on Friday, including those in transit to the U.S.
  • Tip: If you are already in the U.S. in a valid non-immigrant status and are a national of a designated country, do not travel outside the U.S. for the near future. If you must travel, speak to an experienced immigration attorney first.
• U.S. LPR’s (inc. Conditional LPR’s)
  • While this EO originally applied to LPR’s, DHS has since confirmed that the entry of LPR’s is deemed to be in the national interest.  Accordingly, LPR’s who are also nationals of a designated country, will be allowed to re-enter the U.S., absent significant derogatory information indicating a serious threat to public safety and welfare. 
  • Tip: LPR’s who are nationals of a designated country should be prepared to be placed into secondary inspection and questioned upon re-entry into the U.S.
• Canadians
  • DHS has indicated to Canada Officials that naturalized Canadian citizens who are also nationals of a designated country will continue to be treated as Canadian citizens (who are visa-exempt).  Locally, we have seen CBP following this practice at our U.S.-Canada Ports of Entry.

How are the various govt. agencies handling the EO?

• U.S. Dept. of State (DOS)
  • DOS has been instructed not to issue visa to individuals of a designated country.  Pending visa appointments are being cancelled.
• U.S. Customs & Border Protection (CBP)
  • CBP is denying entry to individuals from these designated countries despite their facially valid visas. 
  • CBP is then detaining these individuals until they are able to secure a return flight to their country of origin or CBP grants them a waiver for entry (if applicable, based on any legal stays or on a case-by-case basis).
• U.S. Citizenship & Immigration Services (USCIS)
  • There are reports that USCIS is placing a hold on applications filed by or on behalf of individuals from the countries at issue (this would include I-130’s, I-129F’s, I-765’s, etc.). 
  • It is unclear whether Humanitarian Parole may still be available to affected individuals.
• U.S. Immigration & Customs Enforcement (ICE)
  • There are reports that ICE (this presumably includes ICE Chief Counsel’s Office and ICE ERO [Enforcement & Removal Operations]) is neither approving nor denying any Prosecutorial Discretion requests until clear directives on enforcement priorities are received.
  • On January 25, 2017, President Trump signed an Executive Order “Enhancing Public Safety in the Interior of the United States” which provides for new and revised enforcement priorities for removal – noncitizens convicted of any crime, noncitizens who have been charged with committing any crime (but not yet convicted), and those noncitizens who have a final order of removal. 

Suspends the Visa Interview Waiver Program

The EO immediately suspends the visa interview waiver program that is utilized by U.S. Consulates and Embassies throughout the world to facilitate the issuance and renewal of visas for certain travelers who have been deemed low risk. The program allowed for these low risk travelers to obtain visa renewals by utilizing a “drop-box” or “mail-in” application procedure instead of personally appearing for a visa interview at their local U.S. Embassy/Consulate.

With the suspension of this program, all applicants, regardless of nationality, age and whether first-time or renewal, will need to appear in person for their visa interviews. This is likely to result in increased wait times for appointments, increased times associated with accompanying background checks (aka Administrative Processing), and an overall uncertainty for business travelers seeking to renew their existing visas while on business trips.

Should you have any questions about the above or want to discuss your specific concerns with our office, please contact us. We look forward to assisting you.

Client Successfully Re-admitted to the U.S. in F-1 status

Client, a Canadian citizen, approached SRW Border Lawyers after she was denied entry into the U.S. in F-1 status, after an overnight trip to Canada. At the time, Client was on approved medical leave from her PhD program at a prominent U.S. university. CBP determined that Client had violated the terms of her F-1 status during her approved medical leave. CBP took issue with Client engaging in outside learning for her own intellectual development while on leave. CBP was also concerned that Client violated her F-1 status because she was not living on campus fulltime.

After reviewing the client’s case, we did not agree with CBP’s determination that Client had violated the terms of her F-1 status. Specifically, we noted that there is nothing in the law stating that an individual must remain on campus while on approved medical leave or that an individual cannot engage in any outside learning during their approved medical leave. We also confirmed that CBP erroneously advised Client that she was not eligible for re-admission in F-1 status until she resumed a full course load of study.

Client engaged SRW Border Lawyers to prepare and submit a packet to CBP Officials, which outlined Client’s continued eligibility for F-1 status and requested that Client be re-admitted to the U.S. in F-1 status. After working with CBP Officials for several weeks, Client was properly re-admitted to the U.S. in F-1 status.

Applicant/Client Testimonial - “Based on a strong recommendation from those in the legal field in Toronto, Canada, I reached out to Serotte Reich Wilson Immigration Law in Buffalo, NY and without delay I was able to consult with the senior partners in the firm. I have contacted and consulted other immigration law firms in the U.S. during this time but their utmost professionalism, empathy, and expediency made my decision to entrust my case with Serotte Reich Wilson an easy one. During the course of next 3 months, Ms. Zabrina Reich and Ms. Nisha Fontaine worked ceaselessly to resolve the issue and with their expertise I was able to re-enter the U.S. with the F-1 Visa. More importantly, Ms. Zabrina Reich’s professionalism extended beyond the initial successful border crossing as she continued to impart her legal advice with my subsequent travels into the U.S. under the F-1 Visa.

I can assert with confidence that Serotte Reich Wilson Immigration Law is an exceptional firm with seasoned professionals who address individual case with utmost expertise and care. Based on my experience with Serotte Reich Wilson Immigration Law, I cannot recommend the firm enough to all those seeking legal assistance with U.S. immigration law."