The Immigration and Nationality Act ("INA") makes a nonimmigrant border crossing card ("BCC") an acceptable alternative to a nonimmigrant visa under certain circumstances. It can be issued by a consular officer to an alien who is resident in a foreign contiguous territory (Canada/Mexico) for the purpose of crossing the border between the United States and foreign contiguous territory with such conditions for its issuance and its use as may be prescribed by regulations. However, a BCC can only be used to enter the United States from contiguous territory. In addition, it can only be used for entry under visitor status (B-1 or B-2).
As a result of Section 104 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), all BCCs issued on or after April 1, 1998 must be machine-readable and contain biometric information to verify the identity of the user. All previously issued BCCs were supposed to be invalid after October 1, 2001. The Enhanced Border Security Act of 2002 later extended the expiration date of old BCCs to October 1, 2002.
The Department of State ("DOS") has been issuing the new biometric BCCs to Mexican citizens (but not to Canadian citizens) since April 1, 1998. The DOS currently adjudicates applications for BCCs issued to Mexican citizens and the Immigration and Naturalization Service ("INS") produces most of them. The DOS also produces some biometric BCCs. Canadian BCCs are not currently being issued.
Under previous INS regulations, a non-resident Canadian border crossing card could be issued to a Canadian citizen or British subject residing in Canada. However, this was rarely done since both Canadians and British subjects residing in Canada were visa-exempt.
The only reason for such an alien to have a border crossing card was to extend a waiver of inadmissibility granted under INA §212(d)(3). Previously, such waivers were only valid for a maximum period of one year. However, an INA §212(d)(3) waiver issued simultaneously with an INS-issued BCC was valid for the duration of the card. As BCCs were considered valid until revoked, a BCC could extend a waiver of inadmissibility indefinitely.
With the expiration of old Canadian BCCs, the above option has now become unavailable (although it is still available to Mexican citizens). Neither the DOS or INS have issued regulations permitting the issuance of new BCCs to Canadians. However, in an interim regulation effective October 1, 2002, the INS stated the following:
- B-1/B-2 visas that were combined with DOS-issued BCCs would continue to be valid after October 1, 2002.
- An unexpired nonimmigrant waiver of inadmissibility that was previously granted and documented on an old Canadian BCC remains valid even though the BCC has expired. As such waivers were valid indefinitely (since the old BCCs were valid until revoked), Canadians with these indefinite waivers could continue to use them.
- Nonimmigrant waivers granted under INA §212(d)(3) could now be issued for a maximum period of five years instead of just one year.
In summary, although a BCC can no longer be used by a Canadian citizen to extend the validity period of a nonimmigrant waiver, such waivers may now be issued for up to five years. However, BCCs can still be used for this purpose by Mexican citizens. In addition, B-1/B-2 visas and nonimmigrant waivers granted on the old BCCs continue to be valid after October 1, 2002, notwithstanding the fact that the BCC itself is invalid.