CBP announces e-SAFE pilot for electronic waiver submissions

In an effort to reduce processing time, CBP’s new pilot will give certain waiver applicants the option to apply electronically. U.S. Customs and Border Protection (CBP) has announced that the launch of the Electronic Secured Adjudication Forms Environment (e-SAFE) pilot is planned for mid-2019. The e-SAFE online system will allow nonimmigrant citizens from specified visa exempt countries to electronically submit and make payment for their waiver of inadmissibility applications. This will be applicable to submissions requiring Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, and Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Currently, eligible citizens of Canada, Palau, the Federated States of Micronesia and the Marshall Islands file their submissions by hand delivery to CBP at a port of entry.

CBP reports that using e-SAFE will streamline and speed up the I-192 and I-212 adjudication process. According to an e-SAFE fact sheet provided on CBP’s website, “The processing time for waiver applications submitted online via e-SAFE are expected to be significantly less than paper form applications manually submitted at the port of entry.” Status updates and notification of the decision will be sent via email. Instead of receiving a hard copy sent by mail, applicants will be directed to log in to view and print the decision from the e-SAFE website. If approved, an electronically signed Form I-194 will be received through the website, which the applicant will need to print out and must have in their possession each time they travel to the U.S.

Although e-SAFE is presented as a more convenient option, there is a catch: even if filing online, biometrics (fingerprints and photograph) must be completed in person and only at limited ports of entry. At the biometrics appointment, applicants are also “required to bring the original documents to the port of entry for verification,” CBP advises. After receiving an electronic receipt confirming that the application has been received and paid for, CBP dictates the applicant will only have 45 days to report to one of the designated ports of entry to complete biometrics. If they fail to do so, their application will be considered abandoned.

Currently, CBP provides a list of seven ports of entry where the biometrics appointment can be attended. Three are included in Western New York: the Peace Bridge, Lewiston Bridge and Rainbow Bridge. Remaining options include the Toronto Pearson International Airport and three ports of entry in Washington state: Peace Arch, Pacific Highway and Point Roberts.

One aspect of the waiver application process that will not change with e-SAFE: the contents of the submission. The requirements regarding documents that must accompany Form I-192 and Form I-212 will remain the same. How exactly these documents may be transmitted and if there are any page limitations remains to be seen.

Paper applications will continue to be accepted at ports of entry by CBP, but it’s expected that fewer locations will allow in-person filing as e-SAFE expands. CBP plans to gradually add more ports of entry where biometrics can be completed and plans to publish updates on the e-SAFE public web page at https://www.cbp.gov/travel/international-visitors/e-safe.

SRW Border Lawyers will provide updates on the e-SAFE program as more information becomes available. If you believe you are inadmissible and would like to learn more about the e-SAFE program and how it may affect you, please feel free to reach out to our office to further discuss. The e-SAFE program is likely to be of great interest to inadmissible Canadian citizens in need of I-192 and/or I-212 waivers.

Serotte Reich Managing Attorney joins AILA's TN panel of experts

Zabrina V. Reich, Managing Attorney at Serotte Reich, is included on AILA’s panel of experts for an upcoming seminar on TNs. The American Immigration Lawyers Association (AILA) will present “TN Visas Under the Current Administration” on Tuesday, March 5 at 2 p.m. EST. During the web seminar, panelists will discuss NAFTA and the United States-Mexico-Canada Agreement (USMCA), tricky TN categories, trends they’re seeing at ports of entry and consulates, and how the Buy American and Hire American Executive Order has affected the way TNs are adjudicated. The experts will also advise on communicating with CBP and how to resolve common issues that arise when applying for TNs.

Also participating on the panel are AILA Past President Kathleen Campbell Walker of El Paso, TX and immigration attorney Lauren K. Ross of San Francisco, CA. To register for the seminar or order a recording of the conference, go to https://agora.aila.org/Conference/Detail/1534.

CBP Issues Statement on Legalization of Marijuana in Canada and Crossing the Border

U.S. Customs and Border Protection (CBP) recently released a statement on Canada’s legalization of marijuana warning that “working in or facilitating the proliferation of the legal marijuana industry in the U.S. states where it is deemed legal or Canada may affect admissibility to the U.S.”  Although medical and recreational marijuana may be legal in some states and Canada, the sale, possession, production and distribution of marijuana (or activities the facilitate the same) remain illegal under U.S. federal law. CBP unequivocally states that Canada’s legalization of marijuana will not change their enforcement of U.S. federal laws regarding controlled substances. CBP advises that crossing the border or arriving at a U.S. port of entry in violation of this U.S. federal controlled substance law may result in seizure, fines, and/or arrest and impact inadmissibility.  

CBP Officers will be responsible for making determinations on admissibility and whether any regulatory or criminal enforcement is appropriate based on the known facts and circumstances. Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a state, the U.S., or a foreign country relating to a controlled substance, is admissible to the U.S.

SRW Border Lawyers will be closely monitoring the impact of the legalization of marijuana in Canada and crossing the U.S. border. We will also be providing supplemental blogs on this hot topic.

Policy Alert: USCIS Will Issue More Foreign Nationals Notices to Appear in Immigration Court

Last week, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that changed the agency’s policy regarding which foreign nationals will be issued Form I-862, Notice to Appear (NTA). An NTA is issued to begin removal proceedings against an individual and instructs them to appear in front of an immigration judge for a hearing. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) also have the authority to issue NTAs. According to a USCIS news release, “officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Purpose of USCIS Updated Guidance

This new guidance is intended to update USCIS procedure in accordance with Department of Homeland Security immigration enforcement priorities under President Trump. These priorities were defined in Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which was issued on January 25, 2017. The Executive Order states, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement…. It is the policy of the executive branch to ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens.” In a significant change from immigration enforcement under President Obama, the Executive Order states that the government will no longer exempt specific classes or categories of removable aliens from potential enforcement and removal.

Categories of Removable Individuals

Although all removable individuals are subject to immigration enforcement, the policy memorandum specifies that the following categories of individuals should be issued NTAs:

• Aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4), to include aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal; and
• Aliens who, regardless of the basis for removal:
  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved;
  • Have committed acts that constitute a chargeable criminal offense;*
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal, but have not departed; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

*A footnote indicates that chargeable criminal offenses include those defined by state, federal, international, or appropriate foreign law.

Expert Concerns Regarding the Updated Guidance

Unlike immigration policy under President Obama, the prioritized categories are no longer ranked, but are presented as being equally important. According to an analysis from the American Immigration Lawyers Association (AILA), “because it includes those who merely committed an act that could be charged as a crime, all those who entered without inspection become priorities because illegal entry is a crime under 8. U.S.C. §1325.” By targeting individuals who have been charged with a crime but not convicted, the new guidance also undermines the fundamental premise that individuals are innocent until proven guilty. AILA states that these new policies are “reshaping immigration enforcement in a way that is antithetical to American values and our country’s historical commitment to justice and due process.”

These policies will significantly increase the number of individuals who are targeted for removal, which AILA predicts will worsen the existing problems in immigration courts—currently more than 700,00 cases are already backlogged in immigration court. NTAs mark the beginning of immigration court proceedings, so this guidance will likely continue to overload immigration court dockets and strain government resources.

AILA also warns that the new USCIS policy mandates that “NTAs be issued to every person who is ‘not lawfully present’ in the United States at the time an application, petition, or request for an immigration benefit is denied,” except in very limited circumstances. This includes individuals who were denied due to government error, would otherwise have appealed the decision but are discouraged from doing so after receiving an NTA, or who would have willingly left the U.S. after receiving a denial.

What About DACA Recipients?

DACA recipients and requestors are a notable exception to the new guidance. In a concurrently released policy memorandum, USCIS specifies that “Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.”

The updated USCIS policy guidance represents a significant shift in the agency’s role in immigration enforcement and priorities, and removable individuals who were not priorities for deportation under previous guidance should be aware of how these changes will impact them. If you are concerned about how this may affect your immigration status and ability to remain in the U.S., please reach out to our attorneys to schedule a consultation.