Visiting the U.S.A. – Visa and Entry Issues

Introduction

The security measures which have come about in the aftermath of September 11, 2001, have created considerable confusion, inconvenience, and hassle among visitors to the U.S. without any indication that the measures will improve security in any systematic way. Now, we are starting to catch a glimpse of a system, which is to be put into place. Whether it will improve security, that obviously remains to be seen, and will certainly be debated for years to come. Whatever the effects on security, this article focuses on what visitors to the U.S. can expect in terms of requirements and procedures connected with entering the U.S. as temporary business or pleasure visitors

Visiting the U.S. under a B Visa or the Visa Waiver

There are two bits of good news: the Visa Waiver Program remains in existence, and the INS withdrew on February 28, 2003, the proposed regulation that would limit stays in the U.S. in B-1 or B-2 status to 30 days unless the visitor could justify why he would need longer. However, before you reach for the champagne bottle, the Dept. of Homeland Security has come up with new ways to spoil your day. On May 19, 2003, DHS announced that it will implement by the end of 2003 a new entry/exit system called US VISIT. This system is supposed to maintain a record on each visitor from the moment he enters the country until he departs.

This new system will require a security check when entering the U.S. to make sure that the person is not an identified security threat. Each visitor’s visa and passport will be scanned for the biographic data and pictures they contain, and the visitor will be fingerprinted and photographed, and then the biographic and biometric data will be run through the databases shared by BCIS, BICE, U.S. consulates, and law enforcement authorities. If a visitor applies for an extension or a change of status while in the U.S., the BCIS will be able to pull up the data about each person obtained during their entry to the U.S., and then will note in the person’s record whether a change or extension of immigration status was approved or denied. Then, when the visitor departs the U.S., the BICE officer will pull up the visitor’s record, and determine whether the person is still in valid immigration status. For instance, if the person has overstayed by more than six months, then his visa may be then cancelled and a three-year ban on re-entry imposed. If the person is still legal, then his record will merely indicate the date of departure.

The US VISIT system is mixed news for visitors under the VWP. One the one hand, visitors under the VWP are not entered into the US VISIT system. One the other hand, the DHS has established a new requirement that from October 1, 2003, each visitor under the VWP must have a machine readable passport. A machine readable passport has a certain size, layout, and is printed with a certain typeface with numerical and alphabetic codes written at the bottom of the page, all of which can be read by an optical scanner. For example, if biographic information about a passport’s holder is written in by hand, then the passport is probably not machine readable. This requirement also means that small children and babies will each need their own passports because when they are entered in their parents’ passports, they generally do not appear on a machine readable page. For further details on this requirement please consult the following page on the U.S. State Department’s website: http://travel.state.gov/visa/visa_1750.html

Other Important Procedural Changes

The State Department has implemented a new policy that after August 1, 2003, all applicants for visas between the ages of 14 and 60 must submit to a personal interview at the consulate. This generally involves calling a special fee for service telephone number to set an appointment date, paying the application fee, and then submitting the application at the time of interview. The applicant will generally receive a decision on the spot. This measure will considerably prolong the already long processing times, and so you should plan ahead.

People who are passing through the U.S. in transit to a third country, and who are not eligible for the VWP or do not have a visitor visa, must obtain a C visa ahead of time for transit through the U.S. Previously, such visitors were generally able to pass through without a visa under the Transit Without a Visa (“TWOV”) program. This program has been suspended, and so such travelers must make arrangements to obtain the C visa before they depart for the U.S.

Visitors who intend to enter the U.S. under a B visa or the VWP, and then marry and file for the green card may encounter problems in the process of obtaining the green card. Some BCIS offices, such as in Tampa, Florida, consider such an approach visa fraud, and may impose harsh penalties such as finding the person inadmissible, and hence ineligible for the green card. Not many BCIS offices are taking this approach; however, be careful in your approach. The proper approach in this situation is to obtain a K-1 fiancée visa prior to marrying in the U.S., or to marry, and then obtain a K-3 spouse visa, before entering the U.S. and applying for the green card. Quite understandably, people prefer to avoid the additional expense, hassle, and time spent apart from the loved one, which applying for such a visa causes. Be careful, though, and investigate the policy of the BCIS office where your U.S. fiancé(e) would need to apply for your green card.

The information above is intended as a general description. Each individual's case requires specific advice and our firm offers an an introductory consultancy to review your case, the cost of which can be rebated against any retainer. We can assist you in getting settled in the U.S. state of your choice.