June 27, 2011 Monday New Jersey Law Journal

The Internet and Immigration Matters

BYLINE: Jonathan D. Bick Bick is of counsel at Brach Eichler in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know About Internet Law (Random House 2000). Assisted by Kyle Chan is a third-year student at The George Washington University Law School.

The Internet has interpenetrated most types of legal practices and immigration law is no exception. Internet-based evidence is widely used in the immigration courts. Immigration procedures and applications are available via the Internet. Some immigration applications, such as the DS-3036 exchange visitor program application, require Internet use. The use of electronic signatures for immigration related matters has been implemented, such as for labor certification for certain immigrants coming to perform labor. Even the Immigration Court Practice Manual is updated through the Internet. In short, those who practice immigration law are well advised to understand how the practice of immigration law has been changed by the Internet.

Federal courts have allowed Internet information for a variety of litigation purposes. The court in United States v. Tank, 200 F.3d 627 (2000), admitted Internet chat-room content after the government made a showing of relevance and authenticity sufficient to establish the foundation for admission of chat-room logs into evidence. The court in Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212 (2007), took judicial notice of a fact posted on the Internet. Appeal courts regularly allow information from Internet dictionaries and commercial Internet sites for the purpose of establishing common uses of words and trademarks. The court in Conference Association v. Kyriakides, 151 F. Supp. 2d 1223 (2001), allowed the use of the Securities and Exchange Commission's Internet home page to provide evidence of the public availability of a particular set of information.

The Internet has become a reliable source of information for most people. While nonimmigration courts admit Internet-related information in accordance with the Federal Rules of Evidence (see Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (2002) which admitted a website posting under FRE 901), the Federal Rules of Evidence do not apply in immigration proceedings, and immigration judges are not required to abide by such admissibility rules (see Singh v. Ashcroft, 398 F.3d 396 (6th Cir. 2005) and 8 C.F.R. § 1240.7(a) (2010), which grants immigration hearing officers the discretion to admit any material oral or written statement into evidence). Thus the admissibility of information garnered from the Internet is left to the discretion of individual immigration judges.

Because immigration hearing officers may exercise discretion, Singh v. Ashcroft and the related statute may be read to allow Internet information. The Board of Immigration Appeals (BIA), the appellate-level court in immigration proceedings, did not "condone or encourage the use of resources such as Wikipedia.com in reaching pivotal decisions in immigration proceedings," as seen in Badasa v. Mukasey, 540 F.3d 909, 910 (8th Cir. 2008). But, the BIA has considered such evidence in support of a motion to reopen based on changed country conditions, as reported in the case of Tandayu v. Mukasey, 521 F.3d 97 (2008), despite ultimately denying the petition. In fact, the Badasa court's issue with Wikipedia seemed to lie with the inherent unreliability of information gathered from a "free encyclopedia that anyone can edit." As the Internet continues to develop, information gathered from its various corners will continue to play a large role in immigration courts.

The Internet is also being used to simplify and reduce the amount of paperwork needed for applications and to automate many processes for a number of immigration matters, such as employment certifications filed by employers and the Student and Exchange Visitor Program (SEVP). The SEVP provides relevant information regarding foreign students in the United States to appropriate government agencies. To accomplish this goal, the SEVP uses a web-based program called the Student and Exchange Visitor Information System (SEVIS) to collect, maintain and provide information to those agencies responsible for ensuring that only legitimate foreign students or exchange visitors gain entry to the United States. SEVIS helps agencies such as the Department of Homeland Security and the Department of State "to track and monitor schools and programs, students, exchange visitors and their dependents while approved to participate in the U.S. education system." This centralized, web-based system gives multiple government agencies the ability to quickly and effectively share information with each other. More information can be found at: http://www.ice.gov/sevis/.

Various immigration applications or certifications are available via the Internet. One such example is the ETA 9089 Form: Application for Permanent Employment Certification, filed by employers who request permanent labor certification for their employees. While this form may be completed and filed online or mailed to a national processing center, the Department of Labor contemplated that most basic applications would be filed electronically. More advanced applications require signatures of the applicants to be effective and these are still filed in traditional mail form. However, a provision may be made in the near future regarding electronic signatures and these applications. See 69 Fed. Reg. 77,326, 77,327 (Dec. 27, 2004) ("When the statutes that deal with electronic signatures are implemented, all electronic filings will require such signatures.") New applications using the updated Form 9089 are accepted through the iCERT Internet portal. See 74 Fed. Reg. 17,545, 17,545 (Apr. 15, 2009). The iCERT portal is accessed via http://icert. doleta.gov/. For the moment, a number of applications are available in mail form and electronic form. However, this may not hold true in the years to come.

With respect to submissions to the agency, USCIS generally does not require original documentation, or certified copies of the same, to be submitted with an application unless the applicant is specifically required by an individual officer to do so. Instead, legible photocopies of such documents are acceptable for initial filing and approval of petitions and applications. While USCIS will return certain types of documents if the originals are submitted, other documents will require a G-884 form for their return. As USCIS continues to develop with the Internet, the range of acceptable documentation may continue to increase as well. We may soon be able to submit printouts from verified, reliable Internet sites as an acceptable alternative to photocopies of original documentation. Or perhaps, the government may even wish to create a universal database for its citizens, from which one will be able to create a unique profile and have the ability to submit immigration applications, file tax returns and access other government resources all from one centralized profile, without having to repeatedly fill out different variations of the same form.

While many services are being offered online, it is important to keep the traditional mail forms available to those who do not have access to the Internet. Some services already are no longer available to traditional mail applicants; for example, with respect to new applicants to SEVP, the application must be filed electronically. A final ruling, entitled "Exchange Visitor Program: SEVIS Regulations for the DS-3036 Exchange Visitor Program Application," states that upon implementation of this rule (with the implementation date of Jan. 30, 2003), all new applicants for the Exchange Visitor Program designation must use the web-based SEVIS to generate and submit the SEVIS DS-3036 application to the department. The rule provides information on how to access the SEVIS DS-3036 on the Internet. Further information is available on the Department of State website at http:// exchanges.state.gov/education/jexchanges.

Because information gathered from the Internet is always subject to change, visiting the USCIS website, at http://www.uscis.gov/ portal/site/uscis, is recommended to ensure that you have the latest information from USCIS on this or any other topic. The USCIS website provides answers to commonly asked immigration questions, a centralized location to gather the necessary forms, and the ability to track a specific application.