WHTI Policy Clarification and Comment

On March 5, 2010, leadership of Local 2366 met with Representatives of Del Rio Sector and discussed the Western Hemisphere Travel Initiative (WHTI) policy issued on November 25, 2009.

The Union had several concerns over measures which were outlined in the November policy. Specifically, the Union objected to differential treatment given to off-duty Border Patrol Agents and employees versus non-Border Patrol citizens. We objected to the detention of off-duty Border Patrol employees, who had satisfied immigration and entry requirements, solely so members of Border Patrol management could interview the off-duty employees regarding WHTI non-compliance. Further, we felt that possible disciplinary measures taken against WHTI non-compliant employees was not just unfair, but beyond the Service’s power to implement.

At the meeting with Sector, the Union was able to alter and clarify the WHTI policy to the point that the Union now feels comfortable with the final result. The agreed upon policy, now preserves an employee’s rights whilst meeting the objectives of management. A brief analysis of the new policy is outlined below.

1. The Service has stressed the importance of obtaining, and maintaining, the appropriate travel documents when one is entering the United States.

2. Border Patrol credentials do not meet WHTI compliance and will not be accepted at the Ports of Entry (POE). In addition, Border Patrol employees may create a nexus by attempting to use their work credentials as a travel document while off-duty. Some of the documents which meet WHTI standards include:

a. United States Passport

b. United States Passport Card

c. ­­Trusted Traveler program cards like NEXUS, SENTRI and FAST/EXPRES

d. Enhanced driver’s license or enhanced identification cards

e. Other options are also available for members of special groups such as, Native American Indians, Legal Permanent Residents, and members of the military


3. If a Border Patrol employee is not in compliance with WHTI they may be reported to the Border Intelligence Center (BIC).

The Union and the Service both felt that this activity is within the rights of management so long as the off-duty employee is not adversely impacted. For example, the off-duty employee should not be unnecessarily detained once they have satisfied the entry requirements and inspection.

4. A member of management may report to the POE to meet with the Port Director, or his designee, to determine the facts of the WHTI non-compliance. Again, the off-duty employee will not be detained for this investigation.

5. The employee may later be requested to write a memorandum detailing the incident when he or she is next on-duty.

Employees will not be asked or directed to execute a memorandum off-duty. The only circumstance where this would be allowable is when the Service is willing to pay the employee overtime. Administratively Uncontrollable Overtime (AUO) is never allowed when an employee is told to come in to work when they would otherwise be off-duty. AUO is meant to be un-schedulable, unforeseeable, non-administrative and a continuation of duties.

There are a number of rights that management has which are expressed in WHTI policy and, it should be noted that, short of the memorandum request, the entirety of the investigation will take place without the employee’s presence or assistance. Under the new WHTI policy, neither the employee’s rights nor off-duty time will be adversely impacted.

Finally, the Union feels that there is no nexus between an employee failing to provide approved WHTI documents and that individual’s position in the Service. We have made it very clear to the Service that we object to any discipline or adverse action which may be proposed due solely to WHTI non-compliance.

If you have any questions, or experience any difficulty due to this policy, please contact your station steward.