AGENDA for AILA NY/CBP LIAISON MEETING October 13, 2016

AGENDA FOR AILA NY/CBP LIAISON MEETING – October 13, 2016

Introduction:

The New York Chapter of the American Immigration Lawyers Association (AILA) CBP liaison committee and AILA members at large would again like to thank CBP for the important work that you do, processing millions of visitors through ports of arrival and applying the complex alphabet soup of the immigration laws in split second decision-making. We would also like to commend the agency and its Officers for your dedication and service and renew our commitment to work with the agency for the benefit of all visitors to the United States.

Throughout this document, notes in blue were added by the Committee based on discussion at the meeting, while responses in red were provided by CBP.

General questions

1. Please provide an updated organizational chart and contact information for JFK, EWR and the Field Office.

Chapter Committee Note: This was provided. If not included in #1, please provide current, valid public inquiry phone numbers for Deferred Inspection at JFK and EWR.

EWR: 973-565-8009 or 8010 JFK: 718-559-3683

2. If not included in #1 or #2, please provide us with numbers to call at JFK and EWR so that we may obtain information in connection with a person who has been detained upon arrival at the airport. Please also provide a fax number or email address to which we can send G-28s in such cases.

You can always call the general line numbers for JFK (718-553-1648) or Newark (973-565- 8000) and ask to speak to a supervisor or the watch commander.

Chapter Committee Note: The supervisor or watch commander should be able to confirm whether a particular individual is in CBP custody at the port of entry. If a G-28 is required, the supervisor or watch commander can provide the best means to forward it. Please be aware, however, that an individual applying for admission has no right to attorney representation while being inspected by CBP at a port of entry. (There is a possible open issue, which we have raised in the past, regarding whether this CBP policy should apply to an LPR who may arguably not be an applicant for admission as a matter of law, see INA §101(a)(15)(C), even though physically returning to the United States from abroad.)

3. Have there been any recent staffing, policy, or procedural changes of significance? Chapter Committee Note: We were advised of a new procedure to correct I-94 errors without appearing in person at a port. We have made available, on the Chapter website, a copy of the pamphlet we received with the relevant contact information for this procedure.

Nonimmigrant issues

4. A member’s clients have reported arriving at the airport with a valid nonimmigrant visa in their passport from a previous employer along with an I-797 notice of approval, in the same classification, for a new employer. When they offer this notice of approval to the officer, they are told it is not necessary. This can lead to the issuance of an incorrect I-94. This problem is compounded by the fact that, since the I-94s are electronic, the issue does not come to light until after the client has left the airport. Please advise what steps an applicant for admission should take if their initial attempt to show a new I-797 in this situation is rejected: should they ask to speak to a supervisor at the airport, or raise the issue at deferred inspection afterwards?

While this seems like a very specific instance, the traveler should ask to speak with a supervisor before leaving the FIS.

5. In light of what appear to be inconsistent policies between USCIS, CBP and the State Department regarding the admission period for L-1 blanket visa holders, please advise what is CBP’s current policy regarding this issue. We had previously asked about this issue, but continue to see member concerns.

CBP’s policy is to admit an L-1 blanket visa holder to the validity of the petition (I-129S) not to exceed three years, the validity of the passport, or the statutory maximum (5 years total for L1B, 7 years total for L1A).

6. In the L-1 blanket context, are officers advised to request to see the I-129S?

Yes, the I-129S provides the controlling date for the blanket petition.

7. In the past 2 months, members have encountered situations in which the I-94 record appearing on the CBP I-94 website reflects a prior entry made by the client and does not contain any information about his or her most recent entry. Please advise whether CBP is aware of this issue and the procedures we should follow to make sure the records are updated.

Nearly all of these “errors” are due to a slight change in information between entries (i.e. a traveler has multiple names and obtains a new passport with the names listed differently from the old document.) A deferred inspection site can assist the traveler in locating their new I- 94.

8. a. A member reports that clients have encountered problems where an H-1B worker, for whom an extension petition is pending with USCIS, needs to travel overseas and return to the U.S. a few days before the expiration date on the current unexpired H-1B visa in the passport (which is also the expiration date of the currently valid petition). When the H-1B worker is returning to the U.S. in this scenario, he has an unexpired H-1B visa in his passport, a copy of the filing receipt of the timely filed petition to extend H-1B nonimmigrant status, and an Employment Authorization Document with Advance Parole. The H-1B worker decides to use his H-1B visa to re-enter the U.S. He presents his passport with the unexpired H-1B visa, a copy of the filing receipt of the petition to extend H-1B status, a letter from the employer confirming that he is still an employee, and paycheck stubs.

In some cases, CBP admits the H-1B worker on H-1B status up to the expiration date on the current H-1B visa. Sometimes, CBP will add the 10 days grace period to that expiration date. However, from time to time, CBP officers have refused to admit the H-1B worker back into the U.S. on H-1B status and have insisted that the H-1B worker to use his Advance Parole to enter the U.S. The member has observed that the closer the H-1B worker’s return to the U.S. is to the expiration date, the higher the chances that the H-1B worker will be forced to use Advance Parole to enter the U.S.

We note that 8 CFR 274a.12(b)(20) provides for a 240-day extension of employment authorization when a timely application for extension is filed, and that USCIS does not treat an application for extension of stay (unlike an application for change of status) as abandoned by travel outside the US. Thus, an H-1B worker could legitimately return to the U.S. even on the very last day of visa and petition validity, and continue employment under the 240-day regulatory extension of employment authorization based on the still-pending application for extension of stay.

Absent some other ground of inadmissibility, would CBP agree that it is inappropriate to refuse to admit an H-1B worker back into the U.S. on an H-1B visa when the H-1B visa is still valid and unexpired, and an extension petition is pending, even if the visa and existing petition will expire shortly?

Most likely yes.

b. In another version of the scenario mentioned above, assume that an H-1B employee has been advised to wait until after they return to the United States before their extension is filed. That is, assume that the existing petition expires on September 30, and the H-1B employee is returning on September 28, with the employer planning to file an extension on September 29. Would CBP agree that the existing H-1B petition approval notice and valid visa, plus the employee’s statement regarding a forthcoming extension petition, should be sufficient for the employee to secure admission near the end of the petition validity period?

As long as the employee’s continued employment with the petitioner can be verified, then most likely yes. Applications of this type, like all other applications for admission, will be taken on a case-by-case basis based on the totality of the circumstances. We cannot pre- verify anybody’s admissibility.

9. When consulates issue nonimmigrant visas with future validity, some have been cancelling the current nonimmigrant visa even though it has remaining validity. For example, an applicant with an O-1 visa valid through November 1 might apply in October for a new O-1 visa based on a petition with validity beginning in December, and the consulate might cancel the existing visa even though it is valid until November 1, leaving the applicant without a valid visa for the remainder of October even though there is a valid petition. Where an individual has a new visa with a future validity date, and a currently valid I-797 in the same visa classification, but does not have a currently valid visa because that visa was cancelled by the consulate that issued the new visa with the future validity date, will CBP consider exercising its authority to waive the visa requirement?

Waivers are reviewed and granted on a case-by-case basis. If an alien uses, say, authorized ESTA to board an aircraft, then applies for admission as an O1 without a valid visa, that individual may be refused admission and expeditiously removed from the United States. This is an issue for the Department of State, not CBP.

10. Our membership has been noticing a common problem with Canadian citizen clients whose entries into the U.S. are not reflected on the CBP I-94 website. Is it possible to change the website to make sure that it captures the land entries of Canadian citizens?

The NYFO does not process land entries within our AOR. This is an issue for CBP HQ.

Chapter Committee Note: There is now an I-94 advance online-application option for travelers arriving at land borders: https://www.cbp.gov/newsroom/national-media-release/cbp-makes-online-i-94-application- payment-available-travelers

LPR issues

11. Our members have reported that they are seeing cases of green card holders, who travel frequently for business, and sometimes spend 2-3 months abroad, being informed by CBP officers that they must apply for re-entry permits. Please provide information regarding the situations in which CBP officers are trained to advise permanent residents to apply for reentry permits, despite the fact that the residents have not exceeded the permissible time abroad?

There is no need for a re-entry permit in any circumstance described above. We will muster our officers accordingly.

12. Has any progress been made regarding the possibility of electronically available travel histories for LPRs, along the lines of what is now available for nonimmigrants?

This is a question for CBP HQ Criminal issues

13. Does CBP have a policy regarding applicants for admission to the US who have been granted adjournments in contemplation of dismissal (ACD), but whose cases have not yet been dismissed? Is there a difference if the individual has been granted the ACD in connection with a CIMT or drug offense vs other types of offenses?

Chapter Committee Note:

There is no “policy” regarding ACDs. CBP uses the definition found at INA § 101(a)(48)(A) in determining whether a criminal adjudication constitutes a “conviction” for immigration purposes.

14. Does CBP have a policy or standard practice regarding the questioning of an applicant for admission who has been convicted of an offense which does not render him inadmissible, such as disorderly conduct (N.Y. Penal Law section 240.20), when the underlying charge was a drug offense or other inadmissible offense? Please confirm that the focus should be on the offense of conviction, not on charges that were dismissed.

Confirmed.

15. How does CBP handle inspections for non-removable persons with bench warrants (i.e., no conviction)?

If the warrant is local or extraditable, we will turn that individual over to the initiating or enforcing agency for criminal arraignment. We will serve that agency with a I-247a detainer to have that individual returned to CBP for processing following the completion of criminal proceedings.

16. Please advise us as to what procedures we must follow to obtain a green card that was confiscated at the airport once the client is granted a waiver which allows him to retain his LPR status, such as a waiver under former section 212(c) of the INA?

Generally, when an individual is placed in proceedings the file is sent to EOIR or OPLA along with the confiscated green card. However, once the case is finalized, if the individual is entitled to have his card returned, we can reach out to CBP for assistance in obtaining the card. At both JFK and Newark, this will take many months. Other/Miscellaneous Issues

17. What is the current processing time for resolving TRIP (Travel Redress Inquiry Program) cases? In instances where TRIP reaches out to a local port, is there a processing time goal within which the port would respond?

There is a goal of 90 days for the TRIP inquiry to be completed and closed out at a HQ level

18. Our members note that electronic I-94s available to refugees on the CBP website now use the code “RE” for all members of the refugee family, whereas previously the codes were RE-1 for the primary applicant, RE-2 for the spouse, and RE-3 for the minor child. If this is a permanent change, what kind of outreach has been made to SSA, departments of Social Services, and other benefit-granting entities, such as HRA to make them aware of the new codes?

Our systems have always used the code: RE for all refugees. This is now reflected in the electronic I-94s, which pull from our internal systems. If this is causing issues with outside agencies, this issue should be raised with CBP HQ.

19. What type of training do officers receive regarding the need to request supporting documents or review supporting/clarifying documents offered by foreign nationals upon admission?

Extensive training.

20. The following question relates to situations in which a specific reason is required before an I- 131 application for advance parole may be granted (such as DACA). There are situations in which USCIS has granted an emergency request for advance parole because the I-131 application has not been adjudicated before the date the beneficiary must travel, such as to attend a study abroad program. A member has seen several cases in which the I-131 is later adjudicated and the advance parole is granted even though the applicant has already returned from the trip abroad. May the applicant later travel abroad for a different, though also legitimate, reason such as illness of a family member, and rely on the second grant of advance parole when returning to the U.S.? Please advise whether there is a CBP policy regarding this type of scenario.

This issue involves national CBP policy and should be taken up on the headquarters level.

21. We inquired at previous meetings whether CBP will be following the new policy of USCIS and the Department of State that the non-genetic gestational mother of a child conceived through Assisted Reproductive Technology (ART), who carried and gave birth to the child, and is the child’s legal mother, will be treated as the child’s mother for immigration and citizenship purposes. (See http://www.uscis.gov/news/uscis-expands-definition-mother-and- parent-include-gestational-mothers-using-assisted-reproductive-technology-art; http://www.uscis.gov/policymanual/Updates/20141028-ART.pdf; and http://travel.state.gov/ content/dam/visas/policy_updates/UNCLASSIFIED%20STATE%2000010952.pdf.) For example, when an LPR mother who has used ART is the non-genetic gestational and legal mother of her child, and the child is under age 2 and is returning with the mother on the mother’s first trip back to the United States after the child’s birth, it would be consistent with the USCIS/DOS policy for CBP to admit the child as an LPR under 8 CFR 211.1(b)(1). We were told that this issue was awaiting guidance from headquarters. Has such guidance arrived?

We are not aware of any national guidance regarding this issue.

Additional Comments

NY CBP Committee Notes:

This fiscal year, JFK has processed 15.8 Million passengers and Newark has processed more than 5 Million. These are significant increases from the prior year. More than 1 Million passengers used Global Entry Kiosks. Approximately 80,000 used MPC, a mobile application. This application can be downloaded on cell phones, you enter your information when you land.

Over 100 individuals were referred based on grounds of suspected terrorism. This is highest in last ten years, partly due to teams dedicated to counter terrorism.

Even in the summer, between 70 to 75% of passengers were processed within 30 minutes. This is a big improvement over previous years.

CBP wants to remind our members that each case before an officer will be reviewed individually. There is never an automatic entitlement to discretionary action. When clients are not made aware of this fact by their attorneys before arriving at the airport, confusion and needless delays arise.

We were also reminded that non-immigrants can only be admitted to the U.S. until the end date of their passports. If because of this fact, an individual is admitted for less time than reflected on the I-797, and he then gets his passport extended, they can return to the airport and CBP can extend the date on the I-94 only if the request is made within 30 days of entry to the U.S. Otherwise he will have to file a petition to extend or travel abroad and reenter in order to be admitted for the full period listed on the I-797.

All medicals presented at the airport MUST be sealed.

We also asked a question as to whether an individual who has naturalized will continue to be questioned by CBP upon entry to the U.S. if he had previously been convicted of a crime which made him inadmissible but for which he has been granted a waiver. We were advised that sometimes CBP will stop such an individual as there may be reasons having to do with the conviction that have nothing to do with immigration. However, if a client is in this situation, while in secondary, he can ask to speak with a supervisor to request that his record be corrected so that he not is stopped upon each entry. If this can be done, it will be. This is not only in our clients’ interest, but also in the interest of CBP.