Reasonable Suspicion Required to Search Electronic Devices at Border

Border agents no longer have complete discretion to search your phone and computer at the border.  They now need to have reasons for suspicion of unlawful intent before demanding to search electronics.  On November 12, 2019, U.S. District Judge Denise Casper said there must be a reasonable suspicion that the devices contain contraband — such as child pornography or classified information — before the search.  The ruling, however, did not go so far as to require warrants for searches of electronic devices, but the Judge concluded that the border search exception to the Fourth Amendment does not give CBP officers an unfettered ability to search electronic devices.  Casper said she was requiring reasonable suspicion, rather than a warrant justified by probable cause, because travelers have a reduced expectation of privacy at the border and the government has an interest in maintaining “territorial integrity.”

The number of electronic device searches at U.S. ports of entry has recently increased significantly. Last year, CBP conducted more than 33,000 searches, almost four times the number from just three years prior. This new ruling is a major victory for privacy rights.

Poland Designated as a Visa Waiver Program Country

Great news for Polish nationals.  Acting Secretary of Homeland Security Kevin K. McAleenan, in coordination with Secretary of State Mike Pompeo, designated Poland into the Visa Waiver Program (VWP).  Effective November 11, 2019, Polish nationals may travel to the United States without a visa, using only their Polish passports and an approved ESTA.  Poland joins thirty-eight countries currently participating in the Visa Waiver Program.  The DHS announcement states, “This designation demonstrates the strong partnership and cooperation between the United States and Poland, its trusted partner. The Visa Waiver Program will expand cultural ties and strengthen the economy of both nations by encouraging tourism and business exchanges.”

USCIS Implements $10 Fee for H-1B Employer Registration

On November 7, 2019, USCIS announced a Final Rule that requires employers seeking to submit petitions to employ H-1B workers to pay a registration fee of $10.  The fee is non-refundable.  The Final Rule will become effective on December 9, 2019, and will be in place for the fiscal year 2021 H-1B cap selection process. Further details on its implementation and the implementation of the new electronic registration system will be forthcoming from USCIS at a later date.

DHS Proposing to Charge Fees for Asylum Applications

According to DHS briefing documents obtained by BuzzFeed News, USCIS is planning to publish proposed Federal regulations in January 2020 modifying the fee structure for certain immigration benefits.  Most notably, USCIS is allegedly proposing to charge $50 for asylum applications and an unspecified additional amount for Deferred Action for Childhood Arrivals (DACA) renewals.  Fees would also be added to asylum-based work authorization documents.  In addition to the new fees, USCIS is purportedly going to further restrict the use of fee waivers.

These are but the latest tactics of the Trump Administration to make immigration inaccessible to a large swath of the population.  Of note, the United States would become one of only four countries in the world to charge for asylum applications.

DHS Extends Work Authorization for Salvadorans with TPS to January 2021

DHS has announced that it is extending the validity of work permits to Salvadorans with Temporary Protected Status (TPS) through January 4, 2021.  In 2018, the Trump Administration announced it was planning to end TPS for Salvadorans, but Federal litigation has thus far stalled its efforts.  On October 28, 2019, DHS announced that it has reached agreements with El Salvador that will allow for more orderly repatriation of its nationals.  TPS for Salvadorans was to expire on January 2, 2020.

DOS Places Hold on Public Charge Rule Implementation

While it has been widely reported that a preliminary injunction has prevented implementation of the new public charge rule at USCIS, some may not be aware that the U.S. Department of State is planning to implement a similar rule.  The Interim Final Rule went into effect on October 15, 2019.  However, DOS has stated that it will not implement the Interim Final Rule until a new Form DS-5540 is published.  The Foreign Affairs Manual has also not yet been updated. For now, applicants and practitioners continue to proceed under the traditional “public charge” framework.

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