Immigration Update: Happy Holidays from Jan Pederson

By Jan Pederson

Like Santa, we wish all our clients seamless, safe and successful international flights during the Holiday Season.  Unlike Santa, however, non-citizens have a number of obstacles to overcome before a safe landing in America.  Here is a summary of the check-ups needed to be undertaken when considering travel.

Given unforeseen risks, consider whether you should spend the holidays in America to eliminate all risk. If you decide to take to the skies after considering the risk and you will not return to America in a timely fashion, if at all, take the following precautions. Check to see that your passport is valid for at least six months beyond your anticipated length of stay upon return (some exceptions).  If not, make sure that you extend it before you leave. Check your visa to see if it is still valid to return to America. We have recently seen a number of clients who applied for visas when they did not need to obtain a new visa.  Examples:

• F-1 Student Visas: If the visa was annotated with the name of the initial school you were authorized to attend and after arrival in the United States you properly transferred to another school, you may leave and return with the initial visa if it is still valid. You will also need proof of attendance at initial school and valid I-20 for the next school, in order to travel on the old visa.
• J-1 Visa (J-1 physicians, exchange students, Summer Work Travel, etc.): If the J-1 visa was annotated with the name of the initial exchange program you were authorized to attend and after arrival in the United States you properly transferred to another exchange program, you may leave and return with the initial J-1 visa if it is still valid. You will also need proof of participation in the initial exchange program and a valid DS-2019 for the current program, in order to travel on the old visa.
• Travel to Mexico and Canada or adjacent islands (F and J visa holders only) only for less than thirty days. This is known as automatic visa revalidation and permits you to enter with an expired visa, provided you have a valid I-94 and other documentation required for admission, such as an I-20 for students, DS-2019 for J-1 exchange visitors, I-797C approval notice for H-1, H-4, L-1, L-2, O, P and Q status.  This is discretionary and you must be prepared to demonstrate you have maintained status prior to departure.  For example, if you were admitted in 2015 on a valid F-1 visa, then changed status to H-1B without leaving the United States the AVR rule applies.  The same applies to J-1 visitors who changed to H-1B status without leaving the country.
• Automatic Visa Revalidation is not available to passport holders from Iran, Syria, North Korea or Cuba.

If the above exceptions do not apply, you will need to apply for a new visa stamp at an American Embassy or Consulate abroad.  You may apply at any consular post in any country (with very limited exceptions) where you can obtain an appointment.  You may check the availability of appointments at travel.state.gov. Note however, many posts maintain separate appointment lists for residents and former residents of the country and a separate list for third country nationals.  Most consular posts provide appointments quickly for F, M and J visas and fairly expedited appointments for employment-based non-immigrant visas.  After submitting the Form DS-160 and paying the MRV visa fee, you should schedule the first available appointment.  Then, if you need an expedited appointment for work or medical reasons, request an expedited appointment on the appointment website.

Visa Interview Waiver

All consular posts have in effect some version of the interview waivers in an attempt to reduce backlogs.  While the current waiver program is set to expire December 31, 2022, it is anticipated it will be extended.  Most visa categories are eligible for visa interview waivers, saving applicants the trauma of a visa interview.

Persons renewing B-1/B-2 visas within forty-eight (48) months of expiration of prior B-1/B2 visa are eligible for interview  waivers and this has been extended indefinitely.

Persons renewing in the H-1, H-3, H-4, L, O, P, and Q visa categories who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility; or first-time individual petition-based H-1, H-3, H-4, L, O, P, and Q who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided they have no apparent ineligibility or potential ineligibility and have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA) are eligible for interview waivers. This means that if you were issued a student (F-1) visa fifteen years ago, and you are now applying for an H-1B visa in your country of residence, you could be eligible for a personal interview waiver.

Consular officers retain the discretion to require an in person interview waiver, even though you are eligible for a waiver.

We have experienced longer delays in obtaining  renewal visas in some countries than if a personal interview was chosen.  India, in particular, has been experiencing longer delays for interview waivers and in person interviews.

Visa Interview

For those requiring a visa interview, please make sure to allow a few weeks for the return of your passport.  Consular officers will often tell applicants the visa is approved after the interview and applicants then leave and upon checking their consular email, see that the visa is marked “denied”.  Do not be concerned as the Department of State has changed its policy and often the email account will show denied while the visa stamp is physically being processed.  If the designation appears for more than ten days, contact a lawyer for assistance.

Then there is the soft refusal of “221(g)” while various administrative processing, including background checks, are performed.  This is frustrating and often causes long delays of many months.  If you are a candidate for administrative processing (males from the List of 26 countries) or female or male from the T-4 countries (Cuba, North Korea, Iran and Syria), travel is not recommended as you cannot know if and for how long you will be delayed in security clearances. The fact that you have not experienced delays in prior visa applications does not mean smooth sailing in the future.  The databases checked by the Department of State include many law enforcement agencies, such as  the FBI, CIA, DIA, DOS, and DHS.  These agencies frequently update the databases with data dumps and is the main reason why a future application may be delayed when a prior application was not delayed.

When considering a visa application, consider the cost of losing your job or career against the joys of a trip home to visit family.

Navigating CBP at the Port of Entry

Just as the granting of a status by USCIS is no guarantee that a visa will be issued by a consular post, the issuance of a visa stamp by an American consular post is no guarantee that CBP will admit you at the port of entry.  While only a small minority of non-citizen travelers are denied admission; you want to minimize the risk you will be denied admission.

CBP officers at ports-of-entry have great discretion in deciding whether to admit non-citizens to the United States.  Perhaps the greatest risk of a non-citizen applicant for admission at a port-of-entry is an officer who does not understand the factual situation.  For example, a client called us last week to advise that he is a physician and in medical residence training in J-1 status and so advised the CBP officer.  The officer continued to think he was a student and deported him saying he could find no record of his attending school, notwithstanding he presented a valid DS-2019.  Now the client faces a long wait abroad while the matter is resolved, risking his medical career. The even more tragic aspect of the situation is that the client did not even need a visa to return as he had merely transferred exchange programs.

Here are some basic tips for maximizing a trauma free CBP experience:

1.  Choose your port-of-entry carefully with the assistance of an experienced immigration attorney.
2. Do not enter on holidays, weekends or nights.  This is so because if there is some unanticipated glitch, there will likely not be a senior officer on duty to resolve the matter.  Once you are on the plane back home, getting you back is time consuming and problematical.  Again, not ill will, but lack of knowledge and lack of availability of your employer/school to verify information is often the source of the problem.
3. As of January 22, 2022, DHS requires nonimmigrants to provide proof of COVID-19 vaccination to enter.
4. CBP has complete authority to search purses, wallets, briefcases, luggage, cell phones, laptops, tablets and the like and to use the information against you.  There is a limited exception for attorneys who claim attorney-client privilege for materials on electronic devices.  Refusal by a non-immigrant to provide passwords to devices will likely result in denial of admission.
5. Be truthful to CBP.  Often romantically involved couples, one of whom is a U.S. citizen and the other a non-citizen, are shocked when the non-citizen is denied admission and shipped back home after often lengthy CBP interviews.  In these scenarios, the couple is often returning from a romantic vacation, and the non-citizen claims she is coming to visit a “friend”, who is not a romantic partner.  Generally, the American citizen partner is not in the interview and does not know what was said by the non-citizen partner.  CBP officers then locate the American partner and obtain contradictory information.  The mistake often made by such international couples is that they believe that it is necessary and sufficient that on prior visits the non-citizen did not  violate the terms of a visitor visa by working or attending school.  This is not so.  The CBP officer has access to your travel history and will make a decision about admission on how much time the non-citizen has spent in the United States and the home country. The truth that the couple is romantically involved and is not yet at the point of committing to marriage may do just fine if the travel history does not suggest the non-citizen is spending a majority of the time in the United States.  Such missteps can result in a “Summary Removal Order” banning the non-citizen from coming to the United States for five years or a “withdrawal” of application for admission and voluntary return  In either scenario, reuniting a love struck couple is an anguishing, expensive and uncertain proposition.
6. After successfully overcoming the above hurdles, Welcome to America.  Always make sure to access your I-94 at cbp.gov before leaving the airport to make sure your admission was recorded correctly.  If not, have it corrected before you leave the airport.

Happy Holidays from all of us at WCS.  Please feel free to schedule a consultation with our Immigration Law partner, Jan Pederson by emailing Corey Goettsch at legalassistant@wcslaw.com.