Immigration Report

May 04, 2015 | Immigration

 

International Travel Guidelines for Summer 2015

For international travel during the upcoming summer holiday season, it is important that foreign nationals are aware of the immigration requirements and documentation that will facilitate their exit from and entry into the United States in the correct status and for the correct duration. It is also important to note that the U.S. government has, in recent years, applied stricter standards with regard to visa issuance and inspection upon entry into the U.S. where heightened security checks both at the consular level and at the immigration inspection level at the U.S. port of entry can yield significant delays in the ability to travel in and out of the U.S. As such, foreign nationals should prepare for such delays during the holiday season where the frequency of international travel is much greater.

We, at Younossi Law, urge foreign nationals to contact our office prior to engaging in any international travel so that we may apprise foreign nationals regarding the correct documentation to carry and present, visa application procedures at the consulates, as well as any other travel issues that may be of concern.

PRIOR TO INTERNATIONAL TRAVEL

Again, prior to any international travel, Younossi Law urges foreign nationals to contact our office as there may be situations where international travel is not recommended or there could be consequences to pending petitions or applications that have been filed for the foreign national.

For example, applicants who have filed for a change in nonimmigrant status should be aware that traveling during the pendency of the change of status application will cause the application to be deemed abandoned. Though the underlying application may be approved, the applicant will likely be required to depart the U.S., obtain a new visa stamp at a consulate overseas, and re-enter the U.S. to effectuate the new nonimmigrant status.

Younossi Law will also advise on travel concerns during the pendency of an extension of nonimmigrant status as international travel can impact the validity period given at the Port of Entry.

Please ensure that you have at minimum the following documents in order and with you at all times during your international travel:

  • Valid Passport—Prior to engaging in international travel, it is imperative that foreign nationals make sure that they have a valid passport in hand that is valid for at least six (6) months after the planned re-entry date into the U.S.       Ideally, however, the passport will be valid for (6) months after the approved validity dates indicated on the nonimmigrant approval notice, Form I-797.
  • Nonimmigrant Visa—If foreign nationals are re-entering the United States in valid nonimmigrant status, it is also important to make sure that the foreign national has a valid nonimmigrant visa stamp in the passport to facilitate re-entry into the U.S. in the correct nonimmigrant status and for the correct duration.

Application for Nonimmigrant Visa Stamp at U.S. Consulate Abroad—If foreign nationals do not have a valid nonimmigrant visa stamp in the passport that will facilitate re-entry into the U.S. in the correct status, an application for such a visa stamp will need to be made at a U.S. consulate abroad. This will require that an appointment be made in advance with the consulate. The visa application process at the U.S. consulate requires that foreign nationals appear in person for interview as well as fingerprinting and photographs prior to visa issuance.

Younossi Law provides a general list of documents that may be requested at the visa interview, but applicants should contact the consulate directly for any specific requirements as each consulate varies. Applicants also should note that the summer holiday season can be a busy time at the consulate due to the number of people applying for visas during their summer travel. As such, applicants should anticipate potential delays in being able to secure an appointment with the consulate as well as potential delays in visa issuance. See http://travel.state.gov/content/visas/english/general/find-a-u-s–embassy-or-consulate.html for up-to-date consular contact information for United States embassies and consulates worldwide. See http://travel.state.gov/content/visas/english/general/wait-times.html/ for information on projected visa appointment and processing times.

  • PIMS Clearance Requirement—As of December 2007, consular officers must verify approval of the nonimmigrant visa petition via the Petition Information Management System (PIMS) prior to visa issuance. Under PIMS, I-129 petitions requesting consular notification are sent by the USCIS to the Kentucky Consular Center (KCC) after approval. KCC enters key data from the petition into PIMS and scans in key documents such as I-129 form, employer support letter, and identification documents of beneficiary. KCC also performs some database checks looking for evidence of fraud, violations, or other adverse history and records (including from SEVIS) and records its findings in PIMS.       When a consular post is ready to grant a visa based on a petition it must confirm the petition in PIMS before visa issuance. However, USCIS does not send “extension of stay” or “change of status” petitions to KCC at all. The procedure when a post does not find a petition in PIMS results in the consular post emailing the KCC who has access to USCIS records systems.       KCC will then record the fact of the petition approval and any other information it chooses, and when consular posts check PIMS they can find the information on which visa approval can be based. But until the consulate post sees the petition in PIMS, the visa cannot be granted. Employees should thus anticipate potential delays in visa issuance and be prepared to adjust their travel dates accordingly should the consulate be unable to verify petition approval via the PIMS system immediately.

When applying for a visa to the United States, foreign nationals may also be subject to additional security and background checks which can add further delays in visa issuance. The State Department has provided very little information or guidance on what may trigger the checks, but they can be based on a variety of factors:

  • Citizenship, Nationality or Country of Birth–-Since September 11, 2001, consulates have imposed additional scrutiny for male visa applicants between the ages of 16 and 45 who were born in or are nationals or citizens of 26 countries of concern. The State Department has not made this list public but the countries thought to be included are: Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen. In addition, nationals or citizens of Cuba and North Korea – countries among those that the U.S. has identified as state sponsors of terrorism – are being subjected to increased scrutiny as well.
  • Involvement in High-Technology or Scientific Fields—Foreign nationals employed in high technology, engineering, or the sciences should be prepared to be questioned closely about the details of their employment. Foreign nationals who work with products or services that have both commercial and military applications (known as “dual use” technologies) should also anticipate scrutiny.
  • Appearance in National Security and Law Enforcement Databases—Consular officers are required to screen visa applicants through the State Department’s security databases and lookout lists, which contain the names of individuals identified as security risks. A positive “hit” on one of these lists will trigger additional security clearances and may cause the consular officer to seek guidance from State Department headquarters on the further handling of the case which can delay visa issuance.       In addition, consulates are now required to refer nonimmigrant applicants with prior DUI (Driving under the Influence) arrests or convictions to panel physicians for medical exams in certain circumstances. Such applicants will be required to undergo National Crime Information Center (NCIC) processing and await FBI records results before a visa can be issued. Nonimmigrant visa applicants with DUI issues should be prepared to present arrest reports, certified court disposition documents and any supporting documents attesting to good moral character. Failure to disclose arrests or convictions could lead to a finding of inadmissibility into the United States.

Advance Parole—Some foreign nationals are applicants for adjustment of status and plan to enter the U.S. using the advance parole document (AP). If this is the case, you must have the AP approved and in hand PRIOR to the departure from the U.S. You and your dependents who are employed in the U.S. should also carry with them a valid EAD card as this can sometimes be requested by the immigration officer at the port of entry.

RE-ENTRY INTO THE UNITED STATES

Western Hemisphere Travel Initiative (WHTI)—The Western Hemisphere Travel Initiative (WHTI) currently requires all air travelers to and from the Americas, the Caribbean, and Bermuda to have a passport or other accepted form of documentation (ie: Air NEXUS card or U.S. Coast Guard Merchant Mariner Document) to enter or reenter the United States. On January 31, 2008, the Department of Homeland Security (DHS) began requiring documentation evidencing citizenship and identity for all land and sea travelers.

As of June 1, 2009, all land and sea entrants into the United States are required to present a single WHTI compliant document denoting both citizenship and identity. Most travelers will require one of following documents:

  • U.S. Citizens:       passport issued by U.S. government, a passport card, a valid trusted traveler program card (FAST, NEXUS, or SENTRI), an enhanced driver’s license (EDL), a Military ID with official travel orders, or a U.S. Merchant Mariner Document.
  • Canadian Citizens: passport issued by the Government of Canada, a valid trusted traveler program card (FAST, NEXUS, or SENTRI), or EDL
    • U.S. and Canadian children under age 16 will be able to present a birth certificate or other proof of citizenship. Beginning June 1, 2009, DHS will institute special provisions that allow school or other organized groups of children under age 16 who are U.S. and Canadian citizens to enter the U.S. with proof of citizenship alone.
  • Bermudians: passport issued by the Government of Bermuda or the United Kingdom

Four U.S. states and four Canadian provinces are currently producing enhanced driver’s license (EDLs):

  • Michigan
  • New York
  • Vermont
  • Washington

 

  • British Columbia
  • Manitoba
  • Ontario
  • Quebec

For more information on the Western Hemisphere Travel Initiative and the list of WHTI compliant documents, visit: http://www.cbp.gov/travel/us-citizens/whti-program-background.

OBIM (formerly US-VISIT)— The Office of Biometric Identity Management ‘s (OBIM), formerly US-VISIT, use of biometrics is helping to make travel simple, easy and convenient for legitimate visitors, but virtually impossible for those who wish to do harm or violate U.S. laws. The program is part of a continuum of security measures that begins overseas and continues through a visitor’s arrival in and departure from the United States.  It incorporates eligibility determinations made by both the Departments of Homeland Security and State.  In many cases, US-VISIT begins overseas, at the U.S. consular offices issuing visas, where visitors’ biometrics (digital finger scans and photographs) are collected and checked against a database of known criminals and suspected terrorists. When the visitor arrives at the port of entry, the same biometrics are used to verify the person at the port of entry is the same person who received the visa. The program:

  • Checks a person’s biometrics against a watch list of known or suspected terrorists, criminals and immigration violators
  • Checks against the entire database of all of the fingerprints the Department of Homeland Security has collected since OBIM began to determine if a person is using an alias and attempting to use fraudulent identification.
  • Checks a person’s biometrics against those associated with the identification document presented to ensure that the document belongs to the person presenting it and not someone else.

OBIM provides the results of these checks to decision makers when and where they need it. These services help prevent identity fraud and deprive criminals and immigration violators of the ability to cross our borders. Based on biometrics alone, OBIM has helped stop thousands of people who were ineligible to enter the United States.

During these entry procedures, it is important to remain patient and answer all questions clearly. If you do not understand a question, you may ask for clarification before answering. Make sure to comply with all required entry and exit procedures; if you do not understand the required procedures, ask for assistance. Omission or misrepresentation of information, or failure to comply with required procedures can result in denial of entry, removal from the United States at a later date or even possible criminal penalties. For more information on OBIM, visit: http://www.dhs.gov/obim-biometric-identification-services.

FORM I-94: — As of April 2014, foreign visitors to the U.S. arriving via air or sea no longer need to complete paper Customs and Border Protection Form I-94 Arrival/Departure Record or Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record. Those who need to prove their legal-visitor status—to employers, schools/universities or government agencies—can access their CBP arrival/departure record information online at https://i94.cbp.dhs.gov/I94/request.html.

CBP now gathers travelers’ arrival/departure information automatically from their electronic travel records. Because advance information is only transmitted for air and sea travelers, CBP will still issue a paper form I-94 at land border ports of entry.

Upon arrival, a CBP officer stamps the travel document of each arriving non-immigrant traveler with the admission date, the class of admission, and the date that the traveler is admitted until. If a traveler would like a paper Form I-94, one can be requested during the inspection process. All requests will be accommodated in a secondary setting.

Upon exiting the U.S., travelers previously issued a paper Form I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.

After any international travel, Younossi Law requests that travelers forward a copy of the new Form I94 as this is the ONLY WAY we can review whether the employee was admitted properly and for the correct duration of time. There are numerous officer training issues at the various ports. Errors made on the Form I-94 during entry can impact one’s status and work authorization in the United States so it is imperative Younossi Law have a chance to review the Form I-94 as soon as possible after the re-entry takes place and determine what actions need to be taken to address errors (if any).

For more information on Form I-94, visit: http://www.cbp.gov/travel/international-visitors/i-94-instructions.

ENTERING THE UNITED STATES ON THE VISA WAIVER PROGRAM

The Visa Waiver Program (VWP) is administered by the DHS and enables nationals of member countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa stamp in the passport at a United States consulate abroad. To travel to the United States under the VWP, an individual must be from a participating country and must satisfy the following criteria:

  • Be seeking entry as a tourist for 90 days or less;
  • Be a national of a program country;
  • Present an electronic passport or machine-readable passport issued by a designated VWP participant country to the air or vessel carrier before departure;
  • Execute the required immigration forms;
  • If arriving by air or sea, arrive on an authorized carrier;
  • Not represent a threat to the welfare, health, safety, or security of the United States;
  • Have not violated U.S. immigration law during a previous admission under the VWP;
  • Possess a round-trip ticket;
  • Waive the right to review or appeal a decision regarding admissibility or to contest, other than on the basis of an application for asylum, any action for removal; and
  • Obtain an approved travel authorization via the Electronic System for Travel Authorization (ESTA) in advance of travel.

The citizens or nationals of the following countries are currently eligible to travel to the United States under the VWP: For more information on the VWP, please visit http://travel.state.gov/content/visas/english/visit/visa-waiver-program.html.\

 

Andorra Estonia Italy The Netherlands South Korea
Australia Finland Japan New Zealand Spain
Austria France Latvia Norway Sweden
Belgium Germany Liechtenstein Portugal Switzerland
Brunei Greece Lithuania San Marino Taiwan
Chile Hungary Luxembourg Singapore United Kingdom
Czech Republic Iceland Malta Slovakia
Denmark Ireland Monaco Slovenia

 

Travelers entering the United States under the Visa Waiver Program (VWP) should be aware that all VWP travelers are now required to obtain approval through the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States.  ESTA is a web-based system, initially launched in August 2008, that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States. Visitors may apply for travel authorization via the ESTA Web site at http://www.cbp.gov/travel/international-visitors/esta.

VWP entrants should also note the following regarding document requirements:

 

Citizens of: Must have a machine-readable passport, and also:
the Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, the Republic of Korea, and the Slovak Republic with an integrated chip containing information from the passport data page= e-Passport
Taiwan with an integrated chip containing information from the passport data page = e-Passport, and a national ID number

 

Citizens of: Must have a machine-readable passport, and: If the passport was issued, renewed, or extended
all other VWP countries * with an integrated chip containing information from the passport data page on or after 10/26/06.
with a digital photograph printed on the data page or an integrated chip with information from the data page between 10/26/05 and 10/25/06.
with no further requirements before 10/26/05.

 

Form AR-11 and Address Change Notification Requirement for All Foreign Nationals

All foreign nationals must be aware of the Department of Homeland Security’s regulations on address change notification. All non-U.S. citizens, including lawful permanent residents, are required to notify DHS of changes of address within 10 days of such change, using Form AR-11. The only foreign nationals exempt from this requirement are nonimmigrants in the A (foreign diplomats) and G (representatives of international organizations) visa categories, and nonimmigrants who are not required to possess a visa and are in the United States for fewer than 30 days.

In addition, nonimmigrants who were admitted prior to April 28, 2011 and are special registrants in the National Security Entry Exit Registration System (NSEERS) must notify DHS on Form AR-11SR whenever there has been a change of address, employment or school; the notification must likewise occur within 10 days of such change.

Note that the change of address you make on Form AR-11 or AR-11SR will not be communicated to DHS Service Centers or District Offices with respect to applications or petitions pending at those offices. Therefore, if you are an applicant for an immigration benefit and you are submitting the Form AR-11 in writing, you must also send a written notice of the address change to the relevant DHS office(s) processing the case.

  • Please visit the USCIS website for the AR-11 form (regular registration) link. Form AR-11 SR can be mailed OR filed online: http://www.uscis.gov/ar-11.

 

  • Please visit the USCIS website for the AR-11SR forms for those requiring Special Registration link. Please note: Form AR-11 SR can only be mailed and not filed online. http://www.uscis.gov/ar-11sr.

Failure to comply with the address change notification requirements may affect your ability to remain in the United States and your ability to reenter the United States after travel abroad; noncompliance may also be criminally punishable as a misdemeanor, with a fine not to exceed $200 and/or imprisonment of not more than thirty days. Therefore, it is imperative that you follow the address change notification requirements, and we recommend that you make a copy of your address change form and other pertinent documents in the event that the Government alleges that you failed to comply.

 

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Younossi Law hopes that the above information is of help to you in your travels. We wish you safe journeys this summer holiday season.

Should you have questions regarding this Immigration Report, please contact the immigration professional with whom you usually work at Younossi Law.