Part II of III: Tracking Travelers’ Entries and Exits – Guest Immigration Law Post by Atty Mr. Jan Bejar
Part II of III: Tracking Travelers’ Entries and Exits –
Guest Immigration Law Post by Atty Mr. Jan Bejar
This post is a continuation of Part I of III: Tracking Travelers’ Entries and Exits – Guest Immigration Law Post by Atty Mr. Jan Bejar
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For certain classes of nonimmigrants at air and sea ports of entry, electronic I-94 and I-94W records are generated using APIS data and stored in the NIIS. As of April 30, 2013, CBP stopped issuing paper I-94 records at air and sea ports of entry. Currently, CBP still issues paper I-94 records at land ports of entry, which are then entered into the NIIS.
Trusted traveler programs are another method of tracking and recording entries into the U.S. Trusted traveler programs include Global Entry, NEXUS on the northern border, and SENTRI on the southern border, among others. Travelers voluntarily provide detailed biometric and biographic data to CBP in exchange for expedited admission at ports of entry. Members use their machine-readable identification documents and/or RFID cards when entering the U.S., and their entries are accordingly recorded and stored.
Even today, despite the high inspection rates and various technologies, it is occasionally possible that an entry into the U.S. at a land port of entry would not be recorded. For example, if an inspector at a land port of entry simply looks at a U.S. passport or other travel document that is not RFID-enabled and does not “swipe” it to use its machine-readable capabilities, then the traveler’s entry may not be recorded. Along the same lines, a minor under 16 years old entering the U.S. at a land port of entry with a birth certificate may not have the entry recorded.
The U.S does not have a history of tracking departing travelers, and therefore comprehensively tracking exits has proved more elusive, particularly for land departures. Various pilot programs have been tested and later discontinued. Presently, at certain land ports of entry on the southern border, travelers may be subjected to screening and inspection upon departure. CBP’s mandate in conducting these inspections is to address violence in Mexico and to interrupt transnational criminal organizations’ activities. Outbound screening tends to happen in short-term surges, followed by periods of reduced inspection. Simply passing through the screening, however, does not create a record of the departure.
For travelers departing the U.S. by air and sea, as mentioned above, CBP uses APIS to collect commercial passenger and crew manifests for all outbound international departures. Compliance by carriers is near 100%. CBP then transfers this data for non-U.S. citizens to ADIS, which matches arrivals to and departures from the U.S. Anecdotally, this system for tracking exits from the U.S. is not foolproof.
For example, just a few months ago, a lawful permanent resident client who had applied for naturalization purchased a ticket to depart the U.S. while her naturalization application was pending (which is entirely permissible). Ultimately, however, she opted not to travel abroad and postponed her flight. At her recent naturalization interview, when the USCIS officer asked about her trips outside the U.S. during the past five years, he asked about her departure on the date of the canceled flight. He had presumably accessed APIS and/or ADIS, and presumably the airline carrier had shared her name as a passenger with CBP, even though she had not boarded the plane. She honestly denied departing the U.S. that day. Fortunately, the officer believed her and moved on, but the error could have been difficult and time-consuming to correct had it been necessary to do so. Further, if she had been a nonimmigrant with authorization only to remain in the U.S. until the day of her scheduled flight, the system may not have detected her overstay.
As another example along the same lines, the American Immigration Lawyers Association (AILA) just reported that USCIS has recently denied in error multiple applications for changes of status (to a different nonimmigrant status) and for adjustment of status (to permanent resident status) where the applicants had purchased, but not used, airline tickets to depart the U.S.
These applications, in contrast to a naturalization application, typically require that the applicant remain in the U.S. until receiving a decision. The sole reason that USCIS cited in these denials was the applicants’ alleged departures from the U.S. and constructive abandonment of the applications. Presumably these officers accessed APIS, the NIIS, and/or ADIS but did not click through the electronic records deep enough to see that the applicants had not actually used the international plane tickets. USCIS is supposedly aware of this training issue, but these denials underscore the difficulty in tracking exits from the U.S.
 See, supra, at fn. 3.
 See “CBP Practice Alert: ‘Implied Departure’ and Denial of USCIS Benefits, AILA InfoNet Doc. No. 14090243 (posted Sep. 2, 2014); see also “Minutes from AILA CBP Liaison Committee Teleconference with Suzanne Shepherd, ESTA Director regarding I-94 web portal and travel history information,” August 6, 2014, AILA InfoNet Doc. No. 14082042 (posted August 20, 2014).
Jan Joseph Bejar, Esq.
(For: JAN JOSEPH BEJAR, APC)
Tel: (619) 291-1112