New directives on border searches of electronic media

(Continued from last week) On August 27, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced new directives to enhance and clarify oversight of computer and other electronic media searches at US ports of entry.

The new directives address the circumstances under which US Customs and Border Protection (CBP) and US Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media consistent with the Department's authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at US borders.

DHS said the new directives will also allow the agency "to develop automated, comprehensive data collection and analytic tools to facilitate accurate, thorough reporting on electronic media searched at the border, the outcomes of those searches and the nature of the data searched."

Between October 1, 2008, and August 11, 2009, CBP encountered more than 221 million travelers at U.S. ports of entry. Approximately 1,000 laptop searches were performed during that time. Of those, 46 were "in-depth."

Among other things, related CBP guidance issued on August 20, 2009, notes:

Officers may encounter materials that appear to be legal in nature, or an individual may assert that certain information is protected by attorney-client or attorney work product privilege. Legal materials are not necessarily exempt from a border search, but they may be subject to the following special handling procedures: If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the US Attorney's Office as appropriate.

Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy.

Officers encountering business or commercial information in electronic devices shall treat such information as business confidential information and shall protect that information from unauthorized disclosure.

Depending on the nature of the information presented, the Trade Secrets Act, the Privacy Act, and other laws, as well as CBP policies, may govern or restrict the handling of the information. Any questions regarding the handling of business or commercial information may be directed to the CBP Associate/Assistant Chief Counsel.

Information that is determined to be protected by law as privileged or sensitive will only be shared with federal agencies that have mechanisms in place to protect appropriately such information.

The CBP guidance also notes that an officer at the border may "detain" electronic devices or copies of information contained in them for "a reasonable period of time to perform a thorough border search," which may take place either on-site or at another location.

The guidance states that unless extenuating circumstances exist, the detention of such devices ordinarily should not exceed five days and should be completed "as expeditiously as possible." Supervisory approval is required for detaining electronic devices, or copies of information contained in them, for continuation of a border search after an individual's departure. Port Director, Patrol Agent in Charge, or other equivalent level manager approval is required to extend any such detention beyond five days.

USCIS Resumes Premium Processing for Nonimmigrant Religious Workers

After a suspension of several years, U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing service for nonimmigrant religious worker petitions filed by certain R-1 petitioners.

Only those petitioners who have successfully passed an on-site inspection are eligible to file under premium processing service. Under premium processing service, USCIS guarantees petitioners that, for a $1,000 processing fee, within 15 calendar days of receipt it will issue either an approval notice or, where appropriate, a denial notice, a notice of intent to deny, or a request for evidence, or will open an investigation for fraud or misrepresentation.

Tata America's foreign workers win right to court hearing

The US Court of Appeals for the Ninth Circuit has denied Tata America International Corp.'s attempt to compel arbitration in Mumbai, India, and dismiss a class action by Tata's noncitizen US employees, who had been required to sign over their federal and state tax refund checks to Tata.

The suit, Vedachalan v. Tata America International Corp., included a proposed class of thousands of current and former noncitizen US employees of Tata working in the US.
According to plaintiffs' representative Lieff Cabraser Heimann & Bernstein, LLP, the complaint claims that Tata has paid its employees less than promised; has failed to pay its employees overtime pay and has misclassified them as exempt from overtime; and has failed to compensate employees for earned but unused vacation pay.

The complaint alleges further that Tata required its noncitizen US employees to sign power of attorney agreements delegating an outside agency to calculate and submit each employee's tax return to state and federal authorities.

Tata then required its noncitizen employees who received tax refunds from state and federal tax authorities to endorse the tax refund checks and send them to Tata.

Cyrus D. Mehta