Florida Employment Law Blog : Florida Employment Lawyer & Attorney : Epstein Becker Green Law Firm : Immigration, Discrimination, Labor, FLSA : Serving Miami, Fort Lauderdale, Florida

Effective January 12, 2009, all foreign nationals traveling to the US under the Visa Waiver Program ("VWP") must comply with Electronic System for Travel Authorization ("ESTA") requirements. ESTA is a web-based system that determines the preliminary eligibility of individuals to enter the United States. Since its launch in August 2008, more than 1.2 million ESTA applications have been processed, resulting in an approval rating of greater than 99.6 percent. Most applications are processed in seconds, according to the U.S. Department of Homeland Security ("DHS").

Foreign nationals citizens of VWP countries, who are seeking entry to the U.S. with a visa instead of under the VWP, do not need to use ESTA. While an ESTA approval is required before a VWP traveler can board an international carrier bound for the United States, U.S. Customs and Border Patrol ("CBP") may still deny entry to a VWP traveler.

The citizens of countries currently eligible to travel to the United States under the VWP are: Andorra, Australia, Austria, Belgium, Brunei, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, the Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

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 The Department of Homeland Security ("DHS") announced that all nonimmigrant aliens traveling to the United States under the Visa Waiver Program ("VWP") will have to obtain travel authorization from the Department’s Electronic System for Travel Authorization ("ESTA"). To comply with ESTA, VWP travelers must provide electronically to U.S. Customs and Border Protection ("CBP") the information currently collected on the I-94W Nonimmigrant Alien Arrival/Departure (Form I-94W) through the CBP ESTA website and receive authorization to travel before embarking on travel to the United States.

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On October 22, 2008, DHS announced issuance of the final Secure Flight Final Rule (the “SF Rule”). This followed a Notice of Proposed Rulemaking issued in August 2007. In its final form, the SF Rule shifts responsibilities for review of pre-departure watch lists from individual aircraft operators to the Transportation Security Administration (“TSA”) or CBP. This implements a key recommendation of the 9/11 Commission by giving the government responsibility for monitoring watch lists.

Under the SF Rule, airlines now are required to collect the passenger’s full name, date of birth and gender when making an airline reservation. The TSA will receive this information and determine if it matches any “No Fly” or “Selectee” list maintained by government law enforcement agencies. The result will be returned to the airline, after which the passenger data in most cases will be destroyed to address civil liberties concerns.

Domestic and international carriers, and industry associations, have expressed many concerns in connection with the implementation of the SF rule. Among those, the fact the industry in general will need at least six months to upgrade its reservation and departure systems in order to come into compliance with the rule. Implementing the rule will also be extremely expensive, particularly, for an industry that has sustained large economic losses and operates almost at break-even point. Other concerns include travel disruption since the rule requires bulk buyers to provide the identities and personal information of each passenger 72 hours in advance of a flight; the disruption of foreign carriers operations by requiring passengers to be screened even if a flight does not intend to land in the United States; and the creation a data collection system likely to be at odds with other DHS data collection programs. The SF Rule will be implemented in two phases. First TSA will assume watch list responsibility for domestic flights in early 2009. Later that year, CBP will be given similar responsibility for international flights.

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U.S. Customs and Border Protection ("CBP") announced on Thursday, October 2, 2008 that Global Entry kiosks are now available at four additional international U.S. airports. CBP is the unified border agency within the Department of Homeland Security charged with the management, control and protection of U.S. borders at and between the official ports of entry. CBP is also charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.
CBP's release states as follows:

"Approved members returning to the U.S. use the Global Entry kiosk as an alternative to the regular passport control line. At the kiosk, Global Entry members will activate the system by inserting their passport or U.S. permanent resident card into a document reader. The kiosk will direct travelers to provide digital fingerprints and will compare that biometric data with the fingerprints on file.Global Entry travelers will be prompted to answer declaration related questions on the kiosk’s touch-screen. A transaction receipt will be issued upon completion that must be presented to CBP officers prior to leaving the inspection area. The program’s expansion to Los Angeles International, Hartsfield-Jackson Atlanta International, Chicago O’Hare International and Miami International airports was announced on August 12. The enrollment centers at these sites are expected to open later this month. Global Entry applicants will be able to complete their interview and biometric data collection at these sites. Global Entry kiosks also will be installed at additional terminals at John F. Kennedy International Airport October 17. The Global Entry pilot program began June 6 at JFK International, George Bush Intercontinental and Washington Dulles International airports. To date, approximately 3,500 members have already enrolled and over 1,100 Global Entry members have used kiosks at the three existing pilot locations. Global Entry is open to U.S. citizens or lawful permanent residents. For more information on CBP trusted traveler programs, or for an application to enroll in the Global Entry pilot program, please the globalentry.gov Web site. ( Global Entry Program – Applications Are Available Now! )."

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AmericasNewsToday reported that 16 foreign nationals and corporations have been indicted in Miami on charges of illegally exporting potential military and explosives components to Iran. I reproduce here below the entire article: “A federal grand jury in Miami, Fla., has returned a Superseding Indictment charging eight individuals and eight corporations in connection with their participation in conspiracies to export U.S.-manufactured commodities to prohibited entities and to Iran. The defendants are named in a thirteen (13) count Indictment – returned on Sept. 11, 2008 and unsealed today -- that includes charges of conspiracy, violations of the International Emergency Economic Powers Act and the United States Iran Embargo, and making false statements to federal agencies in connection with the export of thousands of U.S. goods to Iran. The charges were announced today by R. Alexander Acosta, U.S. Attorney for the Southern District of Florida; Patrick Rowan, Acting Assistant Attorney General for National Security, U.S. Department of Justice; Mario Mancuso, Under Secretary of Commerce for Industry and Security, U.S. Department of Commerce; Adam Szubin, Director, Department of the Treasury, Office of Foreign Assets Control (OFAC); Sharon Woods, Director, Defense Criminal Investigative Service (DCIS); and Julie L. Myers, Homeland Security Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE). The Superseding Indictment alleges that the defendants purchased, and then illegally exported to ultimate buyers in Iran, numerous "dual use" commodities. "Dual-use" commodities are goods and technologies that have commercial application, but could also be used to further the military or nuclear potential of other nations and could be detrimental to the foreign policy or national security of the United States. In this regard, the Superseding Indictment alleges that the defendants caused the export of 120 field-programmable gate arrays, more than 5000 integrated circuits of varying types, approximately 345 Global Positioning Systems ("GPS"), 12,000 Microchip brand micro-controllers, and a Field Communicator. All of these items have potential military applications, including as components in the construction of improvised explosive devices (IEDs). The charges announced today are the result of an extensive inter-agency investigation into the use of U.S.-made goods in the construction of IEDs and other explosive devices used against Coalition Forces in Iraq and Afghanistan. Charged in the Superseding Indictment are: Ali Akbar Yahya, an Iranian national and naturalized British citizen; F.N. Yaghmaei, a/k/a " Farrokh Nia Yaghmaei," an Iranian national; Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Madjico Micro Electronics, a/k/a "MME," and Al-Faris, all Dubai-based businesses; Neda Industrial Group, an Iran-based business; Bahman Ghandi, a/k/a "Brian Ghandi," an Iranian national; Farshid Gillardian, a/k/a "Isaac Gillardian," a/k/a "Isaac Gill," an Iranian national and a naturalized British citizen; Kaam Chee Mun, a/k/a "Brian Kaam," a resident of Malaysia; Djamshid Nezhad, a/k/a "Reza," a resident of Germany; Ahmad Rahzad, a/k/a "Saeb Karim," an Iranian national; Majid Seif, a/k/a "Mark Ong,"a/k/a "Matti Chong," an Iranian national residing in Malaysia; and Eco Biochem Sdn BHD and Vast Solution Sdn BHD, Malaysian businesses. The defendants are charged with purchasing and causing the export of U.S. goods to Iran through middle countries, including the United Arab Emirates, Malaysia, England, Germany, and Singapore. More specifically, the charges in the Indictment are as follows:

• Count 1 of the Superseding Indictment charges defendants Yahya, Yaghmaei, Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Majidco Micro Electronics, Al-Faris, and Neda Industrial Group with conspiracy to export goods to Iran and to defraud the United States, in violation of the International Emergency Economic Powers Act, Title 50, United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and Title 18, United States Code, Section 371.

• Counts 2 through 5 charge defendants Yahya, Yaghmaei, Micatic, and Mayrow with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.

• Counts 6 through 8 charge defendants Yahya, Yaghmaei, Majidco, Micatic, and Mayrow with making false statements in federally mandated shipping documents regarding the ultimate destination and use of the goods, in violation of Title 18, United States Code, Section 1001(a)(2).

• Count 9 charges defendants Yahya, Mayrow, Al-Faris, Ghandi, Gillardian, Mun, Nezhad, Rahzad, Seif, Eco Biochem, and Vast Solution with conspiracy to export goods to Iran, in violation of the International Emergency Economic Powers Act, Title 50 United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and to defraud the United States, in violation of Title 18, United States Code, Section 371.

• Counts 10 and 11 charge defendants Al-Faris, Seif, and Vast Solution with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.

• Counts 12 and 13 charge defendant Seif with making false statements by misrepresenting the ultimate destination and use of the goods on Federal Form BS-711 Statement By Ultimate Consignee and Purchaser, in violation of Title 18, United States Code, Section 1001(a)(2).

U.S. Attorney Alex Acosta stated, "The dual use items that the defendants illegally exported to Iran have military applications, including the making of improvised explosive devices. I urge any domestic supplier who may have unwittingly helped the defendants, or others like them, to come forth and report the matter to federal law enforcement. We cannot profit at the expense of our soldiers’ safety abroad. The United States Attorney’s Office will continue to investigate this matter as additional information is uncovered." "Today's indictment details the global reach of Iranian procurement networks and underscores, in dramatic terms, the importance of keeping sensitive U.S. technology out of their grasp," said Patrick Rowan, Acting Assistant Attorney General for National Security at the U.S. Department of Justice. "This extensive, effective government effort has broken up a lethal international ring seeking to harm American and allied forces as well as innocent civilians by acquiring sensitive U.S. technology capable of producing improvised explosive devices (IED) similar to those being used in Iraq and Afghanistan," said Mario Mancuso, Under Secretary of Commerce for Industry and Security. "The Commerce Department remains firmly committed to protect our forces by prosecuting those who try to do them harm, and today’s action illustrates the broad scope of that endeavor." Adam Szubin, Director of the Department of the Treasury’s Office of Foreign Assets Control, added, "The U.S. Government is wielding a powerful array of authorities against Iran's proliferation supply chain. In concert with today's unsealed indictment against Iran's suppliers and middlemen, Treasury is levying sanctions against Iranian military end-users that procured goods from those named in today's indictment. Together, the actions of the Justice, Commerce, and Treasury Departments will expose Iran's proxies to the world and undermine its procurement activities." Sharon Woods, Director of the Defense Criminal Investigative Service of the Department of Defense Office of Inspector General, stated, "The illegal diversion of U.S. military technologies through deception, by domestic and foreign companies, poses a significant danger to America's soldiers on the battlefield. These illegally exported goods provided our enemies with necessary components to manufacture improvised explosive devices, designed to kill and maim U.S. troops and allies. The Pentagon's Defense Criminal Investigative Service and its investigative partners will continue to pursue and expose these hidden enemies to help protect our soldiers as we fight against global terrorism." "The national security implications of this case cannot be underestimated," said Julie L. Myers, Homeland Security Assistant Secretary for ICE. "The export of dual use technology is controlled for good reason. In the wrong hands, these items could be used to harm our soldiers, our homeland, and our allies. Enforcing U.S. export laws is one of our top priorities, and we will continue to work with our law enforcement partners to ensure that those who put our country at risk are brought to justice. "If convicted on the conspiracy charges, the defendants each face a statutory maximum sentence of up to five (5) years’ imprisonment. If convicted of violating the International Emergency Economic Powers Act and the Iran Embargo, the defendants face a statutory maximum sentence of up to twenty (20) years’ imprisonment. If convicted of making false statements, the defendants face a statutory maximum sentence of up to five (5) years’ imprisonment. In addition, the defendants face possible fines of up to $1 million. Acosta commended the investigative efforts of the U.S. Department of Commerce, which led this investigation, the Office of Foreign Assets Control of Department of the Treasury, the Defense Criminal Investigative Service, and U.S. Immigration and Customs Enforcement, Office of Investigations, for their work on this case. The case is being prosecuted by Assistant U.S. Attorney Melissa Damian. Anyone with information regarding the activities of these defendants or others like them should contact the Commerce Department by calling 1-800-424-2980. On the Web: http://www.bis.doc.gov/.”

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On April 24, 2008, the Department of Homeland Security (“DHS”) issued a rulemaking proposal that will require aliens subject to US-Visit to provide, upon entering and before departing from the US, biographic and biometric information to commercial air and vessel carriers at air and sea ports of entry.

US-Visit is part of a continuum of security measures that begins overseas and continues through a visitor’s arrival in and departure from the US. It incorporates eligibility determinations made by both the DHS and the U.S. Department of State. The proposed rule requires commercial air carriers and vessel owners and operators to collect and transmit this biometric exit information to DHS, in conjunction with passenger manifest information already being collected and submitted by the carriers. However, the DHS rule would not apply to small carriers and vessel owners and operators, or to general aviation.

DHS’ rule proposes a “performance standard” for commercial air and vessel carriers to collect the biographic and biometric information and to submit the information to DHS no later than 24 hours after air carrier staff secure the aircraft doors on an international departure, or for sea travel, no later than 24 hours after the vessel’s departure from a US port.

According to the proposed rule, carriers will collect the covered aliens’ biographic and biometrics prior to covered aliens international departure. The biometric information must be collected using a biometric collection device that meets the technical specification identified by US-Visit, which must comply with the Integrated Automated Fingerprint Identification System (IAFIS) Image Quality Specifications. The carrier will then package this personally identifiable information (“PII”) and transmit it to DHS, using standards provided by DHS. Data transmission will take place over an encrypted network between the carrier industry and DHS. The encrypted networks must comply with the standards set forth in the Interconnection Security Agreements (ISAs) required to be executed prior to external access to DHS systems. Once the PII is received by DHS, DHS will acknowledge receipt to the carrier.

Under the rule, carriers are responsible for the accuracy of the biometric data captured from the covered alien and any other transmitted data. Carriers will also have to collect the biometrics directly from the covered alien. Carriers will have to comply with DHS standards for the secure storage and transmission of the biographic and biometric information. Carriers will have to comply with the IAFIS Image Quality Specifications. Carriers will have to comply with DHS standards for purging their systems of PII secured for and transmitted to US-Visit. Carriers will also have to immediately notify the Privacy Officer of US-Visit in writing in event of unauthorized use or access, or breach of biometric departure manifest information. Needless to say, carriers will have to register their carrier system with DHS, and registration will be contingent upon compliance with standards guidance for carrier systems to be issued by DHS in conjunction with the Final Rule.

Along with all the above-imposed obligations, there is a major obligation the government does not seem to contemplate, and, as it would appear, not to care, the heavy economic burden imposed on the carriers to implement the requirements of the rule. Under the new rule carriers will have to invest millions of dollars in man-hours, programs, system, procedures and more.  Carriers will have to implement the requirements of the rule or simply cease to do business in the US. This particular rule deals an overwhelming negative economic impact on an industry already operating, generally speaking, at the brink of bankruptcy. Add to this, the fact that we live in a state with a complex economy that depends greatly on tourism, and in a country in “transition” with a weakening economy, which has partly resulted from the restrictive immigration requirements imposed by the government, the results are not difficult to foresee. 

South Florida is an important spot for tourist and business visitors, and investors from Europe, Middle-East, and especially from South and Central America. Our state economy depends a great deal on these foreign visitors. This particular rule may not only affect the carriers that bring them here, but will also have a negative effect on industries such as hospitality, banking, real estate, retail, and many others that depend on these visitors. Even further, these requirements would also be imposed along all Florida airports adding further delays and negative economic effects to the different local economies. From a Florida perspective, the new rule is not helping to demonstrate that we remain a welcoming state. DHS' proposed rule might implement a security measure that meets the requirements of the 9/11 commission, but the reality is that it deals another critical economic blunder to the carrier industry, and given its many air and seaports, to Florida as well.

DHS is presently accepting comments about this proposed rulemaking, which are due no later than June 23, 2008. DHS is also holding a hearing on Friday, June 13, 2008, from 9:30 a.m. to 4 p.m., EDT, at the Hyatt Regency Crystal City at Ronald Reagan Washington National Airport (2799 Jefferson Davis Highway, Arlington, Virginia, 22202).

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