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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

US-VISIT Expands Technology At Certain Land Borders

by David D. Murray, Esq.

On August 4, 2005, the Border and Transportation Security (BTS) Directorate of the Department of Homeland Security (DHS) issued a Notice in the Federal Register that they have begun using radio frequency identification devices (RFID) embedded in I-94 forms at certain land border points of entry.  These radio devices will "track the entry of foreign nationals into the United States".  No need for alarm . . . it does not affect U.S. citizens, only those pesky foreigners.

It appears George Orwell's "1984" [1] is slowly approaching, more than twenty years late, but coming with the vengeance, of a spurned lover, all in the name of "homeland security".  It appears "1984" has most recently reinvented itself in the form of a government test, designed to electronically monitor selected groups of foreign nationals entering the United States at selected points of entry, as a part of a "pilot program".  What is interesting that this Orwellian technology of "Big Brother" come in the disguise of immigration procedure, rather than a direct affront on the citizenry of the United States . . . go figure.

As with other government pilot programs, it can be expected that this program will become permanent in one form or another, becoming implemented at all ports of entry country-wide, ultimately including all entering foreign nationals, and then in due course to all US citizens, in the name of "homeland security".  It inspires pause to wonder if citizens of the United States will someday be required to carry identification with an imbedded radio chip capable of tracking every move - or perhaps, the requirement that a radio chip be permanently imbedded into every new born infant, "for their own safety"?  Fantasy, you say?  Hide and wait, and read George Orwell's "1984" . . . in view of recent legislation like the Patriot Act, it appears only a natural progression that the Orwellian predictions of 1949 will one day become reality in the 21st century . . . to protect man from mankind, of course. 

The new technology (which in the manner being used seems about as sophisticated at Henry Ford's Model-T) is part of the U.S. Visitor and Immigration Status Indicator Technology Program (US-VISIT). (Gotta love those government acronyms) The testing will take place for at least one year. 

We can naturally expect that notwithstanding any flaws in the system, the results of the test will be reported as "positive" - when was the last time you heard the government say, "No, scrap that idea . . . not working."?.  We can therefore expect that the program, in one form or another, will become a permanent part of the infrastructure of  U.S. "border security". After all, bad technology is better than no technology at all in the war on terrorism and it can always be improved later - yes the wheel can always be reinvented - the government has proved that to immigration lawyers many times - remember the old LCA fax boondoggle? - remember the Amnesty Program of 1986?

The land points of entry that will initially use the RFID technology include:

Now, obviously, the points of entry being used in the pilot program are exactly where terrorists would be likely to enter the United States, so we can all rest easy that the government is securing us early-on from the threat of terrorism, right where it counts, at these select border sites.  Rest assured, the Minutemen will take care of the rest. 

So it appears that all affected nonimmigrants entering at these border crossings, who would normally receive an I-94 form, will now receive an I-94 form with an embedded RFID chip.  Of course those who do not normally receive an I-94 form (certain Canadians and Mexicans) will not receive this technology, and this includes all Canadian citizen tourists and Mexicans who are not subject to the issuance of an I-94 - or who cross the border illegally.

How does this new technology work? . . . When a person carrying the technology walks or drives through one of the select points of entry, the RFID chip will send an identification code to the U.S. Customs and Border Protection (CBP) computers. This identification code will bring up the individual's biographic information for review by a CBP inspector (Unless he/she is on coffee break). Just how this works is unclear . . . will bells and whistles sound under some circumstances, and if so, under what circumstances? 

And who will design the bells and whistles, and will they work after installed?  And who will pay for them? - three guesses now . . .

And what if the radio controlled I-94 form is being carried across the border by someone other than the person who's code is numerically inserted on the I-94 form, will the system flash "Tilt!", and save the world from disaster?  Or will it allow Joe to enter on Moe's I-94 undetected? 

We are told that in its infinite wisdom and ability to forecast the innate flaws of this system, the government recognizes that an entering alien may accidentally have a spouse's card, or damage the card in some way, and there are procedures in place to accommodate this, but they haven't told us what they are. We are informed that anyone who does not have the proper card, however, should expect delays - so what else is new? 

Who will be affected? . . . Not you and I, so don't be concerned.  Except for certain qualifying aliens from Mexico like TN's and commuters, and from Canadian TN's, L-1's and H-1's, who receive one I-94 form for the duration of their nonimmigrant status, all other foreign nationals receive a new I-94 form every time they enter the USA - therefore, the target of this pilot program appears to mainly to affect Canadian nonimmigrant employees of U.S. companies and Mexican TN's, who normally receive I-94's.  Well, whatever works. 

Those who are not subject to enrollment in the US-VISIT program will not be enrolled in this pilot program, and aliens who would not normally receive an I-94 form at the border will not receive an I-94 card under this program - of course not.  After all, why would the U.S. government want to monitor the entry of an Egyptian or Saudi-born Canadian citizen, who, because of their Canadian citizenship, is not required to have an I-94 when they enter the United States as a tourist?  The voice in the wilderness says, "If they really want homeland security, why not just inspect and require the same documentation from each and every person applying for admission into the United States, rather that installing yet one more program that has more holes than a colander?"  Oh no, that would be too logical. 

But logic is not the point of this pilot program. We are told that the purpose of this pilot project is solely to test the effectiveness of "the technology" in securing the borders and improving the flow of individuals into and out of the United States, we can assume that it is unimportant who is the testee.  Evidence of yet one more government program existing in a vacuum.

The "technology" . . .  A radio chip imbedded on a paper card, given only to selected foreign nationals at selected border locations, in order to "test the system." We can see how this will effectively do this - it won't - but that's not the point.  The point is this appears to be the first step toward "1984", and perhaps just the testing of useless paper-based technology, so the second generation of technology will not be scrutinized as it further invades the personal freedom of both aliens and citizens alike.

We are told the radio technology does not have a long carrying range, so the RFID chip should only respond to the signals received at the ports of entry. And the identifier in the RFID chip is a number tied to the

I-94 form and contains no data - all data about the individual is located on the DHS main frame computer and therefore cannot be stolen (unless some teenage hacker hacks into the DHS mainframe). 

We are told that since it is short-range, the technology is not designed to be a tracking tool, designed to permit the DHS to track or monitor the movement of foreign nationals as they travel within the United States. Then what good is it?  All it seems to do is to give information to a border inspector as the selected alien walks or drives through the Canadian or Mexican border, if he/she is carrying the I-94 form.  Big deal . . . but remember, this is only a pilot program and it has to be tested on someone, and Canadian business nonimmigrants are great guinea pigs, as nobody will accuse the government of racial profiling.  The question is, as this technology, or its successor, progresses, can we expect both the scope of participants, and the range of the tracking, to increase exponentially?

Of course, it can be expected that this pilot program, like any government program, will be subject to fraud. While it is illegal to tamper with the RFID chip in the cards, there appears to be no way to tell if the actual owner of the biographic information recovered from the number on the chip is the person who is actually carrying it.

The only way for any certainty in the identification system would be a hand or eye scan, but evidently this is not being considered by the bureaucrats, even though this type of technology has been successfully used at points of entry to expedite the entry of frequent-flyer U.S. citizens for years.  Instead of using this type of proven technology, the government wants to go back to the horse and buggy, using an imbedded electronic chip on a paper card, designed to be carried who knows where, lost, stapled, mutilated, disregarded, misunderstood, held in distain, shunned, avoided, bought, sold, bartered, traded, and disrespected by all.  Hey man, want to buy a slightly used I-94? . . . ten bucks . . . probably about the same amount as the government contractor will get for each chip they manufacture and insert in an I-94 form under the program.  Let's see, ten bucks times ten million aliens, comes to about . . . whoa, my calculator doesn't go that high.

Common sense indicates this Rube Goldberg technology will not work, and may create trafficking in illicit I-94 forms, but then, common sense was never a long-suit of the government. Amnesty anyone?  Or how about a nice guest worker program?  Combining a guest worker program with the US-VISIT technology, the government could imbed a radio chip behind the ear of every immigrant farm worker, which upon expiration of status would send an electronic shock that would stop only upon the alien crossing the border back to his/her home country.  Technology . . . . gotta love it!  Gotta pay for it! But what price are we willing to pay?


Endnotes

1 In 1949, American Author George Orwell wrote a book entitled "1984", which predicted, among other things, electronic monitoring of the citizenship.  The book was very popular during the mid sixties, during the time of revolt and rebellion of America's youth during the Vietnam War era.  According to Orwell's prediction, the world of "1984" would be one in which eternal warfare is the price of bleak prosperity, in which "the Party" keeps itself in power by complete control over man's actions and thoughts - all done, of course, through electronic surveillance everywhere, including in every room of every house.  Of course, in man's indefatigable quest for personal independence, there are "speak easys", only instead of serving illegal alcohol, as they did under prohibition back in the 1920's [2] , they are "clean rooms" that were free of electronic surveillance, where people could speak freely without the fear of government reprisal.

2 For a good analysis of the ultimately failed prohibition era, which spawned the rise of organized crime in America through the black market in the sale of alcoholic beverages it naturally created, coupled with humanity's insatiable desire for gambling and prostitution, see  http://www.cato.org/pubs/pas/pa-157.html


About The Author

David D. Murray, Esq. is an attorney with offices located in Newport Beach, California. A graduate of Ball State University and Western State University College of Law, Mr. Murray has been a successful practitioner and consultant in connection with business law and immigration matters since 1978. His practice concentrates in the areas of Civil Litigation, Copyright, Trademark, and Trade Secrets Litigation, Employment Law, Contracts, International Transactions, and U.S. Business and Family Immigration matters. Mr. Murray served in the U.S. Army from 1967 to 1969, including deployment to the Republic of South Vietnam, where in addition to regular military duties, he served as a professor of English at the University of Hue. Holding a Merchant Marine Captainís license for sail and power vessels up to 100 net registered tons, Mr. Murray has sailed in excess of 100,000 miles in sailing boats between 22 and 197 feet in length. When not practicing law, or otherwise engaged in other various business endeavors, Mr. Murray is an avid Harley-Davidson motorcycle enthusiast, an amateur guitarist (electric and acoustical), five-string banjo picker, writer, poet, philosopher, backpacker, hiker, sailor, skier, and lover of the great outdoors.


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