As previously reported, technical problems relating to the online Form DS-160 (the primary U.S. visa application form) have made it virtually impossible for foreign nationals to seek U.S. visas at consulates that have implemented the new form. Applicants were unable to submit Form DS-160 and consulates were refusing to accept visa applicants without it.

According to the American Immigration Lawyer’s Association (“AILA”), the Visa Office continues to work on fixing the DS-160. In the meantime, it has announced that most consulates have temporarily resumed accepting the old Form DS-156s and Form DS-157s. Consular posts in Mexico using an Applicant Service Center cannot use the old form. However, as of March 4, 2010, AILA is not aware of any other posts refusing to accept the old forms.

Applicants with NIV appointments who cannot complete the DS-160 should check the post’s website to verify that the old forms will be accepted.

In November 2009, the Department of State announced that it would deploy the Form DS-160 web-based nonimmigrant visa application form worldwide by April 30, 2010. The Form DS-160 application form combines all information previously collected on the Form DS-156, Form DS-157, and Form DS-158 for appropriate applicants, and the Form DS-3052.

As the United States Consulates in Vancouver and Montreal were part of the initial pilot program, they have already been using Form DS-160 for some time. During the pilot program period, the web-based Form DS-160 was prone to timeouts and other technical difficulties.

Following the announcement that Form DS-160 would be deployed worldwide, many consular posts have now adopted the new Form DS-160. Unfortunately, this has resulted in even more technical problems.

At the present time, the online Form DS-160 is essentially unusable. Most (if not all) visa applicants are unable to complete their Form DS-160 online. Unfortunately, use of Form DS-160 is mandatory at consular posts that have adopted it and they will not issue a visa without one.

In response to this problem, the American Immigration Lawyer’s Association Department of State Liaison Committee has been in contact with the Visa Office regarding the Form DS-160 problem and has urged that all consulates immediately resume accepting the old visa application forms until the problem is solved. However, there is no word yet on what DOS will do to resolve this issue.

CNN recently reported that hackers had demonstrated how a biometric passport issued in the name of “Elvis Presley” could be cleared through an automated passport scanning system being tested at an international airport. Using a doctored passport at a self-serve passport machine, the hacker was cleared for travel after just a few seconds and a picture of Elvis Presley himself appeared on the monitor’s display.

Adam Laurie and Jeroen Van Beek, who call themselves “ethical hackers,” say the exercise exposed how easy it is to fool a passport scanner with a fraudulent biometric chip. The Presley test was carried out at Amsterdam’s Schiphol airport in September 2008, by Laurie and Van Beek, to highlight potential security shortcomings.

Biometric passports, with data stored on embedded chip, are now standard issue in Europe, the U.S. and a number of other countries. However, Laurie and Van Beek used their knowledge of IT security and hacking to show that biometric passports remain vulnerable to fraud.

The problem, in part, is that each country has its own security signature for verifying its own biometric passports. While some share that information, many countries do not, making it easy to exploit the loopholes.

The CNN article may be accessed here.

The Los Angeles Times has reported that, in the last year and a half, civil liberties groups and business travel leaders have complained about United States Customs & Border Protection (“USCBP”) officers’ broad authority to search and seize laptops and other electronic gadgets carried by international travelers. Recent data obtained by the American Civil Liberties Union (“ACLU”) details the extent to which this has happened.

Debate over the searches picked up steam in July 2008 when USCBP issued a policy directive, clarifying that its officers at airports and ports of entry could look into electronic devices without first establishing suspicion of wrongdoing. In a recent nine-month period, USCBP searched or seized 1,644 devices from travelers entering and leaving the country, according to data the ACLU obtained through a lawsuit.

Of the searched or seized devices, 582 were cellphones, 398 were laptop computers and 259 were digital cameras. The rest included MP3 players, flash drives, hard drives and DVDs. The ACLU’s data doesn’t indicate how many travelers crossed the borders during that same period, but USCBP estimates that 22 million travelers enter the U.S. per month.

The new data was included in the nearly 900 pages of documents obtained by the ACLU through a Freedom of Information Act lawsuit filed in June. The civil liberties group disclosed the information in January and expects to collect more this month.

The ACLU insists that border agents should be required to establish a suspicion that a traveler is breaking the law before they can search electronic devices. The Association of Corporate Travel Executives, a nonprofit group that represents 2,500 members worldwide, also objects to the searches.

The original LA Times article appears here.

On February 23, 2010 (2:00pm – 3:30pm Eastern Time), Henry J. Chang will be participating in an audio seminar sponsored by the American Immigration Lawyers Association (“AILA”), along with attorneys Barbara Bower and William Coffman. The topic of the audio seminar will be ” E Visas: Strategies for Treaty Traders/Treaty Investors in a Down Economy.”

The panel will discuss various issues related to treaty trader/investor visa applications and petitions before the U.S. Department of State and United States Citizenship and Immigration Services, with a particular focus on how these visa categories are affected by the current global economic climate.

1. Overview of the Treaty Trader/Treaty Investor Categories
2. Substantial Trade for the E-1 Treaty Trader
3. Amount of the Investment for the E-2 Treaty Investor
4. Change of Status with USCIS vs. Processing at the Consular Post
5. Principal Investor/Trader vs. Employees, Who Qualifies as an Essential or Supervisory Employee? Is Availability of U.S. Workers an Issue?
6. Preparing the E Visa Applicant for the Interview
7. E Visa Registration and Processing Changes with the Advent of the DS-160

For further information regarding this audio seminar, as well as instructions on how to register, please refer to the official AILA seminar page, which appears here.

Civil liberties advocates are expressing concern over the United States Government’s recent decision to single out travelers from more than a dozen mostly Middle Eastern countries for increased scrutiny. Critics of the policy argue it could lead to practices that are not only discriminatory but also ineffective against the threat of terrorism.

In January 2010, the Obama administration announced that citizens of 14 predominantly Islamic nations who fly to the United States will have to undergo enhanced screening at airports, including full-body pat-downs or body scanners. Under the new rules, all citizens of “state sponsors of terrorism” (Cuba, Iran, Sudan and Syria) must receive a pat-down and an extra check of their carry-on bags before boarding planes bound for the United States. Although not officially considered state sponsors of terrorism, citizens of Nigeria, Afghanistan, Algeria, Lebanon, Libya, Iraq, Pakistan, Saudi Arabia, Somalia and Yemen are also subject to these additional screening procedures. The new rules apply to anyone with a passport from any of the 14 countries and anyone stopping in those countries.

Dennis Parker, director of Racial Justice Programs at the American Civil Liberties Union, thinks the new airport security rules are bad policy. He says there is no way to predict the national origin of a terrorist and that many terrorists have come from countries not on the list. Parker believes policies such as racial profiling and invasive body scanning for all travelers not only violate American rights and values, but also divert valuable resources and attention from countering the real threats posed by Al Qaeda.

The Transportation Safety Administration (TSA) denies that the new regulations amount to racial profiling. TSA spokesman Greg Soule declined to be interviewed for this report, but said in a written statement: “TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background.” The agency statement goes on to note that the new directive also mandates threat-based and random screening for the majority of passengers on U.S. bound international flights.

For further information, please refer to the following Voice of America article.

On November 19, 2009, Department of Homeland Security Secretary Janet Napolitano announced the publication of new proposed rule that would establish Global Entry, a United States Customs and Border Protection (“USCBP”) voluntary initiative that streamlines the international arrivals and admission process at airports for trusted travelers through biometric identification, as a permanent program. The proposed rule would end the current pilot program and make Global Entry permanent, allowing USCBP to expand the program to additional U.S. international airports.

Currently, Global Entry is operating as a pilot program at selected airports. It allows pre-approved, low-risk travelers expedited clearance upon arrival into the United States. Although this program is intended for “frequent travelers” who make several international trips per year, there is no minimum number of trips an applicant must make in order to qualify.

Participants may currently enter the United States by utilizing automated kiosks located, at the following airports:

1. Boston-Logan International Airport (BOS)
2. Chicago O’Hare International Airport (ORD)
3. Dallas/Ft. Worth International Airport (DFW)
4. Detroit Metropolitan Airport (DTW)
5. Ft. Lauderdale Hollywood International Airport (FLL)
6. George Bush Intercontinental Airport, Houston (IAH)
7. Hartsfield-Jackson Atlanta International Airport (ATL)
8. Honolulu International Airport (HNL)
9. John F. Kennedy International Airport (JFK)
10. McCarran International Airport, Las Vegas (LAS)
11. Los Angeles International Airport (LAX)
12. Miami International Airport (MIA)
13. Newark Liberty International Airport (EWR)
14. Orlando International Airport (MCO)
15. Philadelphia International Airport (PHL)
16. San Francisco International Airport (SFO)
17. San Juan-Luis Múñoz Marin International Airport (SJU)
18. Orlando-Sanford International Airport (SFB)
19. Seattle-Tacoma International Airport-SeaTac (SEA)
20. Washington-Dulles International Airport (IAD)

The process requires participants to present their machine-readable U.S. passport or permanent resident card, submit their fingerprints for biometric verification, and make a customs declaration at the kiosk’s touch-screen. Upon successful completion of the Global Entry process at the kiosk, the traveler is issued a transaction receipt and directed to baggage claim and the exit, unless chosen for a selective or random secondary referral.

Travelers must be pre-approved before they can participate in the pilot program. All applicants will undergo a rigorous background check and be interviewed by a USCBP officer before they are enrolled. Automated enforcement checks will occur each time the member uses the kiosk to enter the United States. Although pre-approved for the program and determined to be low risk, members of Global Entry may be examined at any time when entering the United States.

The current pilot program is generally limited to U.S. citizens, U.S. nationals, and U.S. lawful permanent residents. However, on April 23, 2009, USCBP published a notice in the Federal Register announcing that it had expanded eligibility for participation in the Global Entry pilot to include citizens of the Netherlands who participate in Privium, an expedited travel program in the Netherlands, provided they otherwise satisfy the requirements for participation in the Global Entry pilot program.

The most significant change that would result from a permanent Global Entry program is its expansion to include nonimmigrant aliens from other countries via joint arrangements between USCBP and its respective counterparts in foreign governments. USCBP is working with other countries that operate comparable international trusted traveler programs to enter into reciprocal arrangements for the purposes of expanding eligibility for Global Entry.

Canadian and United States citizens who are already participating in NEXUS, a trusted traveler program operated jointly by USCBP and the Canadian Border Services Agency, will find the Global Entry program to be very familiar. However, unlike the NEXUS program, the permanent Global Entry program would be available to citizens of countries other than Canada and the United States. It is expected that participants in the existing NEXUS program will be among the first group included in the permanent Global Entry program, once it has been implemented.

Further information regarding Global Entry appears here.

On December 11, 2009, United States Citizenship and Immigration Services (“USCIS”) announced the creation of a general inquiry mailbox for customers in Canada. This will hopefully resolve the ongoing problem that aliens residing in Canada have faced for years when trying to contact USCIS.

Currently, Canadians cannot access the National Customer Service Center using USCIS’ published 800 number. However, the 800 number is the only method by which applicants may contact USCIS in order to ask general questions or to address specific problems with their case (e.g. lost receipt notices, cases pending beyond the normal processing time, etc.).

According to USCIS, Canadian customers may now inquire about general immigration information at USCIS.Canada@dhs.gov. However, it still remains to be seen whether Canadians will be able to use the email address to resolve specific problems relating to their case. In addition, this inquiry email does not help aliens who reside in other countries, since it appears to be restricted to persons in Canada only.

According to the announcement, the creation of the Canadian inquiry mailbox signifies a major step in USCIS’ outreach to Canadians since the dissolution of the former Immigration and Naturalization Service (“INS”) Ottawa office in 2003. Time will tell.

Henry J. Chang will be speaking on an audio seminar sponsored by the American Immigration Lawyers Association on February 23, 2010. The title of the seminar is E Visas: Strategies for Treaty Traders/Treaty Investors in a Down Economy.

The panel will discuss various issues related to E-1 treaty trader and E-2 treaty investor visa applications and petitions before the U.S. Department of State and U.S. Citizenship and Immigration Services, with a particular focus on how these visa categories are affected by the current global economic climate. This discussion will cover the following topics, among others:

1. Overview of the Treaty Trader/Treaty Investor Categories
2. Substantial Trade for the E-1 Treaty Trader
3. Amount of the Investment for the E-2 Treaty Investor
4. Change of Status with USCIS vs. Processing at the Consular Post
5. Principal Investor/Trader vs. Employees, Who Qualifies as an Essential or Supervisory Employee? Is Availability of U.S. Workers an Issue?
6. Preparing the E Visa Applicant for the Interview
7. E Visa Registration and Processing Changes with the Advent of Form DS-160

This Audio Seminar takes place Tuesday, February 23, at the times noted below:

1. 2:00 pm-3:30 pm Eastern Time
2. 1:00 pm-2:30 pm Central Time
3. 12:00 pm-1:30 pm Mountain Time
4. 11:00 am-12:30 pm Pacific Time

Further details, including information on how to register for the seminar, appear here.

Our friend and colleague Paul Mayer, the current Consular Section Chief at the United States Consulate General in Montreal, has recently posted a blog on his experiences while serving as Acting Consul-General at the United States Embassy in Port-au-Prince Haiti, during the days following the January 2010 earthquake. He mentions the Embassy’s priority to evacuate United States citizens during times of emergency. However, he also talks about the difficulty he faced each day, having to turn away applicants who had no claim to United States citizenship but who had arrived at the consulate with their suitcases packed, hoping that the United States government would feed them, house them, and evacuate them from Haiti. I urge you to read Paul’s blog, which is available here.