Important Reminders Regarding Visa Waiver Program Changes, New Form I-9 and New Travel Document Requirements

ESTA Authorization Required for Visa Waiver Travel Beginning January 12

Foreign nationals traveling to the U.S. for short-term tourist or business visits under the Visa Waiver Program (VWP) are reminded that, beginning January 12, 2009, they will be required to obtain an electronic travel authorization through the Electronic System for Travel Authorization (ESTA) before boarding a carrier to travel by air or sea.

VWP travelers can register online using the ESTA website at https://esta.cbp.dhs.gov. Once authorized, travelers will be eligible to make multiple entries to the U.S. over a two-year period without registering further. Travelers whose ESTA applications are approved, but whose passports will expire in less than two years, will receive ESTA authorization valid until the passport’s expiration date. If a traveler obtains a new passport or there is a change to passport information (such as a change in name or other identifying biographical information), the individual will be required to apply for a new ESTA travel authorization.

We strongly advise our foreign national clients eligible for the VWP to register with the ESTA service as soon as possible, but no later than 72 hours before departing for the U.S. Please do not hesitate to contact us should you have any questions regarding the ESTA registration process.

USCIS Reveals New Form I-9 Effective February 2

Employers are reminded that they will be required to use a new version of Form I-9, which becomes effective February 2, 2009, to verify the identity and work authorization of their newly hired employees. U.S. Citizenship and Immigration Services (USCIS) recently published revised I-9 regulations and a new Form I-9 in the Federal Register. The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers to verify the employment eligibility and identity of all employees hired to work in the U.S. after November 6, 1986, by completing a Form I-9. Employers are required to retain I-9s for each employee for three years after the employee's date of hire or one year after the date that employment is terminated, whichever is later. In order to properly complete Form I-9, employees must provide, and employers must personally inspect, original documents that attest to the employee's identity and his or her authorization to work in the U.S.

There are several changes to the new form, including new verification guidelines and a redefined list of acceptable proof of identification documents. The most notable changes include:

Expired documents are no longer acceptable (including expired Driver's Licenses and U.S. passports)

Makes citizen and non-citizen nationals of the U.S. two separate categories in Section 1
Non-citizen nationals of the U.S. include persons born in American Samoa, some former citizens of the former Trust Territory of the Pacific Islands and some children of non-citizen nationals born abroad. More information about non-citizen nationals can be found on the Department of State website at travel.state.gov.

Eliminates Certain "List A" Acceptable Documents
Temporary Resident Cards and older versions of the Employment Authorization Document (Forms I-688, I-688A, and I-688B) will no longer be acceptable as these documents have expired and are no longer issued.

Adds Certain "List A" Acceptable Documents
The U.S. Passport Card and a foreign passport that contains a temporary I-551 printed notation on a machine-readable immigrant visa have been added as acceptable "List A" documents.

The new Form I-9 is not yet available on the U.S. Citizenship and Immigration Services (USCIS) website, but USCIS expects to make the form available toward the end of January. USCIS also expects to publish a revised Handbook for Employers, which will reflect these changes. We continue to monitor the status of employment eligibility verification requirements and will update you with the latest developments. In the meantime, please feel free to contact us with any questions you might have regarding the new Form I-9 or about the I-9 process in general.

New Travel Documents for U.S. Entry Required Beginning June 1

On June 1, 2009, the Western Hemisphere Travel Initiative (WHTI) will go into effect at U.S. land and sea ports of entry, requiring travelers, including U.S. and Canadian citizens, to present an approved travel document to enter the U.S. WHTI is a joint Department of Homeland Security-Department of State effort to establish document requirements for travelers entering the U.S. who were previously exempt, including citizens of the U.S., Canada and Bermuda. WHTI requirements for air travel have been in effect since 2007, but beginning June 1 the requirements will be applicable to all entries via land or sea as well. Acceptable travel documents include the following:

U.S. or Canadian Passports
U.S. Passport Cards (not valid for international air travel)
Enhanced Driver's Licenses (currently only issued by Washington State and New York)
Trusted Traveler Program Cards (NEXUS, SENTRI, or FAST enrollment cards)

U.S. and Canadian children under the age of 16 will be able to present the original or copy of their birth certificates or other proof of citizenship such as a naturalization certificate or citizenship card. Document requirements for Lawful Permanent Residents (LPRs) will not change under WHTI. LPRs should continue to present their Permanent Resident Card (I-551) or other acceptable evidence of their lawful residence status when entering the country.

We recommend travelers take the steps necessary to obtain their travel documents now, in advance of the new requirements. When the WHTI document requirements for air travel went into effect in 2007, U.S. and Canadian citizens experienced significant delays in the processing of their passport applications. To avoid any interruptions of your travel plans, we encourage everyone to prepare in advance for the June 1 deadline.