PUBLICATIONS

The Department of Homeland Security (DHS) and the U.S. Department of State have announced that, beginning January 23, 2007, U.S. citizens and nonimmigrant aliens from Canada, Mexico, and Bermuda must present a passport to enter the United States when arriving by air from any part of the Western Hemisphere. This requirement is designed to strengthen border security by designating verifiable, secure documents that may be used at air ports of entry. The requirement does not apply to travel by land or sea; however, regulations addressing such travel will likely be issued in the near future.

Generally, before the effective date of the new rule, entry requirements for citizens of the U.S., Canada, Mexico, and Bermuda were as follows:

• Although U.S. citizens are required to possess a valid U.S. passport to depart or enter the United States, this requirement generally has not been applied to U.S. citizens who depart or enter the United States from within the Western Hemisphere, other than from Cuba. In lieu of a passport, U.S. citizens have been allowed to present a variety of documents establishing identity and citizenship, such as birth certificates, drivers’ licenses, etc., when entering the U.S. from within the Western Hemisphere. In the commentary to the new rule, DHS stated that birth certificates and drivers’ licenses are difficult to authenticate quickly and reliably because they are issued by a number of different agencies in a variety of formats. Thus, these documents will no longer be accepted after the effective date of the new rule.
• Similarly, although nonimmigrant aliens from Canada and Bermuda are required to present a valid, unexpired passport issued by the person’s country and a valid unexpired visa issued by the United States, these individuals generally have not been required to present such documents to enter the United States as nonimmigrant visitors from countries within the Western Hemisphere. Upon effective date of the new rule, nonimmigrant aliens from Canada and Bermuda will be required to present a valid unexpired passport when entering the United States by air from within the Western Hemisphere. If nonimmigrant aliens from Canada are participants in the NEXUS Air Program and enter at a NEXUS Air kiosk, they will not be required to present a passport. Such travelers from Canada and Bermuda are not required to present a visa. 
• Mexican citizens are generally required to present a valid unexpired U.S. passport and visa when entering the United States. However, Mexican citizens arriving in the United States at ports of entry who possess a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) currently may be admitted without presenting a valid passport if they are coming from a contiguous territory. DHS notes that although use of the BCC without a passport is atypical in the air environment, it has been permitted. Upon effective date of the new rule, use of the BCC card without a passport will no longer be permitted when such travelers are entering the United States by air.

The passport requirement applies regardless of age. Accordingly, children under the age of 16 will be required to present passports when entering the United States from within the Western Hemisphere, just as they are currently required to do when entering the United States from places outside the Western Hemisphere.

The only acceptable alternative documents to a passport for air travel will be the Merchant Mariner Document (MMD) and the NEXUS Air card. The MMD or “z-card” is issued by the U.S. Coast Guard to U.S. merchant mariners and the NEXUS Air card is issued to citizens of Canada and the United States, lawful permanent residents of the United States and permanent residents of Canada who meet certain eligibility requirements. The NEXUS Air card may only be accepted when used in conjunction with the NEXUS Air program. The MMD card may only be accepted when used on official business by U.S. Citizen Merchant Mariners. Members of the United States military, when traveling on official orders, may continue to present their military ID and orders for entry.

Employers’ Bottom Line:

Employers whose employees travel frequently between the U.S. and countries located in the Western Hemisphere should be aware of this new requirement. Travelers who leave the United States before the effective date of the law and return after the effective date should be prepared to comply with the passport requirement upon return.