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 PACE  BACKGROUNDER  ON  US VISIT

 

The Department of Homeland Security (DHS) has started implementing the United States Visitor and Immigrant Status Indicator Technology program (US VISIT), an entry-exit system designed to register foreign nationals each time they cross the border. This program is designed to collect information, confirm identity, measure security risks and assess the legitimacy of travel. Ultimately, the information captured through US VISIT would be available at the ports of entry and throughout the entire immigration enforcement system. The system would also track changes in a foreign national’s immigration status and make updates and adjustments accordingly. However, many issues, which are noted below, remain to be addressed.

As originally set forth in Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208) (IIRAIRA), the entry-exit system would have applied to all non-U.S. citizens who enter or exit the United States at any port of entry. The Data Management Improvement Act of 2000 (DMIA) (P.L. 106-215) subsequently altered this system and merged the entry-exit system with a searchable centralized database, prohibited INS from introducing new entry or exit documentary requirements on any visitors to the country (such as Canadians), and staggered the entry-exit implementation deadlines into three groups:

·    Airports and seaports-- December 31, 2003

·    Top 50 high traffic land border ports-- December 31, 2004

·    Remaining implementation for all other ports-- December 31, 2005

In 2001, Congress in the PATRIOT Act (P.L. 107-56) mandated that the entry-exit system include the use of biometric technology and tamper-resistant documents readable at all ports of entry. Later that year, with the passage of the Enhanced Border Security and Visa Entry Reform Act (P.L. 107-173), Congress finally addressed the entry-exit system as a program that balances security with the economic realities of our busy ports of entry. To strike this balance, the Act includes a provision that mandates that the program utilize technologies that facilitate the efficient flow of commerce and travel. This provision is extremely important because a system that impedes travel across the borders would shut down our borders.

US VISIT applies to both nonimmigrant visa holders and visa waiver program participants. Canadians entering without visas and those Mexican nationals who do not require an 1-94 and enter with a laser visa remain exempt from US VISIT, although the 9/11 Commission Report contains recommendations that, if implemented, might alter these exemptions.

The first phase of US VISIT was implemented at select airports and seaports on January 5, 2004. US VISIT entry capabilities went into in effect at 115 airports and 14 seaports, and US VISIT exit checks were established at the BWI airport in Baltimore, Maryland and the Miami seaport.

At airports and seaports, visa holders entering the U.S. will be processed through the US VISIT program during primary inspections. Upon entry, the nonimmigrant visa holder"s travel documents will be scanned; a photo and index fingerprints will be taken and checked against databases such as IBIS and the watch lists. Information will be collected on immigration and citizenship status; nationality; country of residence; and the person"s address while in the United States. An IDENT biometric database check will be performed after the individual is admitted to the U.S. If a nonimmigrant visa holder departs the U.S. from a port with US VISIT exit capabilities, the individual will have to input his or her departure information, visa data and fingerprints into the US VISIT system through an automated self-service kiosk (similar to an ATM machine).

By the close of 2004, DHS had expanded the entry component of the entry/exit program to the top 50 high traffic land border ports. It has indicated that it will expand the program to all remaining ports of entry by December 31, 2005. Although these deadlines have not given DHS adequate time to implement US VISIT properly (the exit functions are still in their conceptual or pilot testing phases), it is unlikely that these deadlines will be modified. The 9/Il Commission Report has called for the implementation of an entry/exit system as quickly as possible.

Expanding US VISIT to land ports of entry raises a multitude of issues beyond those that arise at airports, and presents a host of infrastructure, staffing, and database challenges. In contrast to airports, land ports must deal with pedestrians, passenger vehicle occupants, and commercial vehicle occupants.

Enrollment in US VISIT at land ports of entry currently occurs in secondary inspection, where travelers apply for 1-94 forms. However DHS has yet to finalize the enrollment process. Currently index fingerprints of US VISIT enrollees are scanned for checks against government databases, but DHS recently announced it would be changing the system to a ten print system which will add significant wait time, to US VISIT enrollment. [1]

Meanwhile DHS has been testing a pilot exit program  at the ports of Nogales East and Nogales West in Arizona; Alexandria Bay in New York; and Pacific Highway and Peace Arch in Washington. The testing or "proof of concept" phase is expected to continue through the spring of 2006.

Specifically, the "proof of concept" phase is exploring utilization of radio frequency identification (RFID) technology as a key component of the entry-exit process.  As explained by DHS, conceptually RFID technology will allow for a unique and automatic identifier to be issued to border crossers as part of the US VISIT enrollment processes that will allow the US VISIT databases to automatically record arrivals and departures through wireless transmission to line of sight receivers located at the land border crossings. The technology would presumably also link to DHS watch lists.

Will US VISIT enhance security?  While the jury is still out, serious questions need to be addressed as to the achievable mission of US VISIT.  A June 1998 Senate Judiciary Committee Report (Senate Judiciary Report 105-197 on S. 1360, Border Improvement and Immigration Act of 1998, June 1, 1998) makes the following apt comment:

The Committee is keenly aware that implementing an automated entry/exit control system has absolutely nothing to do with countering drug trafficking, and halting the entry of terrorists into the United States, or with any other illegal activity near the borders. An automated entry/exit control system will at best provide information only on those who have overstayed their visas.  Even if a vast database of millions of visa overstayers could be developed, this database will in no way provide information as to which individuals might be engaging in other unlawful activity.  It will accordingly provide no assistance in identifying terrorists, drug traffickers, or other criminals.  (emphasis added).

With regard to tracking visa overstayers, the report further states:

Even if a list of names and passport numbers of visa overstayers would be available, there would be no information as to where the individuals could be located.  Even if there was information at the time of entry as to where an alien was expecting to go in the United States, it cannot be expected that 6 or more months later the alien would be at the same location. Particularly, if an alien were intending to overstay, it is likely that the alien would have provided only a temporary or false location as to where the alien was intending to go.

 

The ability to meet US VISIT"s ambitious scope and accelerated implementation schedule have caused concern at high levels within the government, as the following two examples illustrate:

·                    In March of 2004, the U.S. General Accounting Office (GAO) conducted a study of US VISIT and found that it is "inherently risky" because of the demanding and challenging implementation schedule, enormous potential cost, uncalculated and underestimated costs, and problematic program management. A link to the study follows:  http://www.gao.gov/highlights/d04569thigh.pdf

 

·                    In its most recent study on US VISIT released in February 2005, the U.S. Government Accountability Office (GAO) found that a high risk remains that US VISIT will fail to meet its stated goals. Among other findings, the study found that DHS has failed to identify non-governmental costs such as social costs associated with adverse potential economic impact at the border that may be attributable to US VISIT implementation. A link to the study follows: http://www.gao.gov/new.items/d05202.pdf.

The Department of Homeland Security was established by The Homeland Security Act of 2002.[2]  Section 101(b)(1) of the Homeland Security Act of 2002 sets out the seven components that comprise the primary mission of DHS.  Subparagraph (F) affirmatively establishes that an integral part of DHS" primary mission is to "ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland…"  Moreover, DHS has indicated that one of its goals for US VISIT is for the system to facilitate legitimate trade and travel.

31 USC §9701, 8 CFR §235.7(a)(5)(iii), OMB Circular A-25 and other provisions of law, mandate that user fees sufficient to cover the costs of such technology and its administration are to be charged to the users of government programs. Given its statutory mandate, DHS should not be designing US VISIT without concern as to the amount of the user fee to be imposed to make the program self-sustaining when finalized, and the effect of said user fee on legitimate cross-border trade and travel.

Moreover, on the northern border, other than U.S. citizens, Canadian citizens form the largest number of border crossers.  At present, for technical reasons established in the Data Integrity and Management Act, most Canadian citizens are exempt from US VISIT"s requirements and not subject to payment of a fee when crossing the border.  However, at a US VISIT stakeholders meeting held in Bellingham WA on January 25, 2005, DHS announced that it is exploring enrolling Canadian citizens into US VISIT in 2008 when a provision of The Intelligence Reform and Terrorism Prevention Act of 2004 takes effect that will require Canadian citizens to use passports containing certain biometric information when entering the U.S.  A recent report by DHS" Inspector General also calls for subjecting Canadian citizen visitors to US VISIT.

Based on the above discussion, and to facilitate DHS" ability to implement feasible security objectives without seriously harming the cross-border flow of legitimate trade and travel, PACE submits that at minimum the following should occur:

  1. DHS Should Determine the Limits of US VISIT: DHS must step back and determine the program"s true capabilities and assess the feasibility of every stage of the program while US VISIT is still in its infancy.  The 1998 Senate report on the entry/exit program challenges the notion that an entry/exit system can be used as a tool to prevent terrorism.  If that is true, its full scope of effectiveness must be determined now rather than after billions of US tax dollars have been spent.  If the primary mission of US VISIT is instead to merely catch visa overstayers, the mission should be clarified.  On the issue of national security, a false sense of security is a failure.

  1. DHS Should Address the Issues Raised by the Government Reports Cited Herein.    Specifically, the February 2005 GAO report states directly that DHS has failed to identify socioeconomic costs this program may have on border communities. Border communities are dependent on steady flows of cross-border visitors, and accordingly they have a significant stake in US VISIT. These communities experienced a dramatic downturn in cross-border visitors after September 11th, a decrease which corresponds directly to increased security measures at the nation"s borders. On the northern border, the number of cross-border visitors continues to be down, even with the rising value of the Canadian dollar.[3] 

 

  1. Develop a More Comprehensive Plan for US VISIT: DHS should develop a comprehensive plan for US VISIT that takes into account the achievable goals of the program, necessary funding levels, infrastructure needs, and appropriate deadlines.  For example, any comprehensive plan needs to take user fees when the program is finalized into account as part of the broad vision concerns set out above.  Government policy calls for user fees to defer the cost of programs such as US VISIT. It is foreseeable that an increase in the cost of cross-border travel in the form of an increased user fee will lead to a significant decrease in international trade and commerce. DHS has failed to take a hard look at this issue. To be designing US VISIT without concern as to the long-term user fees charged to international travelers ignores DHS" statutory mandate as well as an articulated goal for US VISIT.

 

  1. Determine the Effect to Cross-Border Trade and Commerce if Canadian Citizens Are Required to Participate in US VISIT: At the present time most Canadian citizens are exempt from US VISIT. Given staffing and infrastructure constraints at Land Ports of Entry on the Northern Border it is difficult to conceive of enrolling Canadian citizens into US VISIT without causing hours long waits at the border. DHS has not addressed the ability of US VISIT to process Canadian visitors in a fashion that does not cause substantial disruptions to legitimate trade and travel despite the fact that DHS is actively exploring requiring Canadians to participate in US VISIT.

The cost of implementing US VISIT is unknown. On June 1, 2004, DHS awarded the US VISIT Prime Contractor award to Accenture LLP for services including strategic support, design and integration activities, technical solutions, deployment activities, training, and organizational change management. According to DHS, the value of the award is for a maximum of $10 billion.

DHS maintains a US VISIT website at www.dhs.gov/US VISIT.



[1] On Dec. 3, 2004, in comments about a Justice Department inspector general's report on DHS and FBI fingerprint databases, DHS Director of Border and Transportation Security Asa Hutchinson  asked whether it would be "operationally feasible" to consider adding 10 to 15 seconds per traveler to capture 10 fingerprints, rather than two, for 43 million visitors a year. "Even discounting the processing time required, the additional 10 to 15 seconds for print capture would have an enormous impact," Hutchinson wrote. "It would require a significant number of additional inspectors and consular officers, as well as significant facility modifications to handle the increase in wait times."  As a practical matter, it will take more than an additional 10 or 15 seconds per traveler for the 10 print fingerprinting process.

[2] Pub. L. No. 107-296. 116 Stat. 2135 (Nov. 25, 2002).

[3] A Western Washington University Center for Economic and Business Research (CEBR) study of numbers of visitors to the U.S. using southbound border crossings in Whatcom County, Washington reveal that prior to September 11, 2001 there was a direct link between the Canadian dollar exchange rate and the number of persons entering the U.S. In the months following September 11, the number of border-crossers dropped dramatically, and has failed to show a substantial increase despite a dramatic increase of the value of the Canadian dollar vis-á;-vis its U.S. counterpart. A link to a CEBR chart illustrating the above follows: http://www.cbe.wwu.edu/cebr/border%20crossings.htm