September 2, 2005

CBP and DOS Issue Advance Notice of Proposed Rulemaking on Passport Requirements

Pursuant the Immigration and Nationality Act (INA), nonimmigrant aliens and United States citizens are generally required to present passports to enter the United States. The Secretary of Homeland Security and the Secretary of State have the joint authority to waive this requirement for nonimmigrant aliens under certain circumstances and the Secretary of State has the authority to make exceptions to the requirement for United States citizens. In accordance with those authorities, current regulations allow United States citizens and nonimmigrant aliens from Canada, Bermuda and Mexico to enter the United States from certain Western Hemisphere countries without presenting a passport.

Following the passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), this will be changing. On September 1, 2005, the CBP and DOS issued a notice of rulemaking in connection with this expected change. Under the IRTPA, by January 1, 2008, United States citizens and nonimmigrant aliens may enter the United States only with passports or using alternative documents as designated by the Department of Homeland Security (DHS) that will satisfactorily establish identity and citizenship.

This change will not apply to Lawful Permanent Residents (LPR), i.e. “green card” holders, who will continue to be able to enter the United States using a valid I-551 stamp in their passport, Alien Registration Card, or other valid evidence of permanent resident status.

The Advance Notice of Proposed Rulemaking announces the rulemakings expected to implement the new law, invites comments on the possible means of implementation and specifically invites comments on the documents other than passports that should be accepted under IRTPA as sufficient to establish citizenship and identity. Greenberg Traurig encourages everyone to take advantage of this period to submit comments and options that will be both viable and feasible for travelers. Written comments must be submitted on or before October 31, 2005.

Comments that will help shape a rule that is practical and viable for businesses and travelers will include suggestions and information on the following:

1. Alternatives to the passport for verifying identity and citizenship.

2. The economic impact of the implementation of this change, including potential impacts on State and local governments; potential impact on cross-border trade along the United States-Canada and the United States-Mexico borders; potential impact on travel, travelers and the travel industry; and potential impact on small businesses.

3. The monetary and other costs anticipated to be incurred by United States citizens and others as a result of the new document requirements.

To understand the impact of these proposed changes, it is helpful to review and understand current entry requirements for United States Citizens and for nonimmigrant visitors from Canada, Mexico and Bermuda.

U.S. Citizens

Currently, United States citizens are exempt from the statutory passport requirement when traveling and returning to the U.S. from the Western Hemisphere, with the exception of Cuba. A United States citizen entering the United States from the Western Hemisphere, is inspected at the border by a Bureau of Customs and Border Protection (CBP) officer, and does not have to present a U.S. passport, but can instead provide any other documentation that may verify identity and U.S. citizenship to the satisfaction of the CBP officer. This other documentation has to date included a driver's license issued by a state motor vehicle administration or other competent state government authority, birth certificates issued by a United States jurisdiction, Certificates of Naturalization, and Certificates of Citizenship.

Nonimmigrant Aliens

In general each nonimmigrant alien arriving in the United States must present to the CBP officer at the border a valid unexpired passport issued by his or her country of citizenship and a valid unexpired visa issued by a United States embassy or consulate abroad. These aer individuals entering for temporary business, pleasure or work.

The general exception to this passport requirement applies to the admission of:

1. Nationals of Canada and Bermuda arriving from anywhere in the Western Hemisphere other than Cuba.

2. Mexican nationals with a Border Crossing Card (BCC) arriving from an adjacent territory.

Canadian Citizens and Citizens of the British Overseas Territory of Bermuda

When entering the United States as nonimmigrant visitors from countries in the Western Hemisphere other than Cuba, Canadian citizens and citizens of the British Overseas Territory of Bermuda do not need to present a valid passport and visa.

To enter, these individuals are required to satisfy the inspecting CBP officer of their identity and citizenship at the time of entry. The individual may present any proof of citizenship in his or her possession, there is no specific list of items. An individual who initially fails to satisfy the examining CBP officer that he or she is a Canadian citizen or citizen of the British Overseas Territory of Bermuda may then be required by CBP to provide further identification and proof of citizenship such as a birth certificate, passport, or citizenship card.

Mexican Citizens

Mexican citizens traveling to the United States for pleasure or for business who are in possession of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) are not required to present a valid passport when coming from an adjacent territory. A BCC is a machine-readable, biometric card, issued by the U.S. Department of State, Bureau of Consular Affairs. DHS anticipates that BCCs will continue to be acceptable under IRTPA.

Implementation of the new IRTPA Requirements

DHS and DOS plan on implementing the new requirement in two stages:

1. Air and Sea Crossings: Beginning December 31, 2006, all individuals traveling to the United States by air or sea will be asked to present a valid passport or other document, or combination of designated documents to establish identity and citizenship.

2. Land Crossings: Beginning December 31, 2007, all individuals arriving at United States land border crossings will have to present either a valid passport or another document, or combination of designated documents to establish identity and citizenship. It is expected that BCCs and registered traveler programs such as SENTRI, NEXUS, and FAST will be accepted.

Given the impact on travel, business and cross border trade, we encourage everyone to review the federal register and submit comments. Greenberg Traurig will continue to monitor the proposals to address these matters on behalf of our clients.

Cite: Federal Register: September 1, 2005 (Volume 70, Number 169)] [Proposed Rules] [Page 52037-52039] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr01se05-21]