For countries which participate in the Visa Waiver Program–a special program that allows citizens/nationals  of certain participanting countries to enter the U.S. for a period of up to 90 days without a visa, a new system of pre-travel, electronic registration has been implemented that is scheduled to become mandatory after January 12, 2009. The ESTA program requires that foreign nationals apply for electronic travel authorization in advance of their journeys to the U.S. through a website at the following URL: https://esta.cbp.dhs.gov     ¼/p>

Going through the immigration process is like meandering through a maze because instead of one government agency being responsible for implementing immigration policy many agencies have their say too. The two most prominant agencies are the Department of Homeland Security, of which United States Citizenship and Immigration Services (USCIS) is a part, and the U.S. Department of State, which is the agency responsible for overseeing the nation’s foreign relations and processing visas through its various consulates, located worldwide. This situation is not beyond creating conflicts: Even if a petition is approved by USCIS, i.e. an I-129 H-1B petition, once the beneficiary leaves the U.S., he or she will need a visa to re-enter the U.S. It is the State Department–not USCIS–which is the agency with the sole authority to evaluate visa applications. While normally, consular officers afford deference to USCIS petition approvals, it is within a consular officer’s authority to disagree with USCIS and deny a visa and for the State Department to promulgate regulations of its own to regulate the visa application process.

This past month, the State Department promulgated a rule requiring non-immigrant visa applicants to provide a set of ten scanned fingerprints to the Consul as part of the application process. The rule came into effect on August 20, 2008  and is intended to help the State Department do background checks. This rule will apply, for example, to beneficiaries of an approved H-1B petition, when the beneficiary is applying for his/her H-1B visa at a consulate. Applicants should consult the consular office with which they intend to file their visa applications to see how best to comply with this requirement. Because the rule is rather new, some consulate websites may omit mention of it. It is unclear whether the rule applies to applicants seeking renewal of their H-1Bs as opposed to a beneficiary of a visa petition seeking a new H-1B visa, but our sense is that the rule probably should be read to include even visa extension applications. As if things are not complicated enough for skilled foreign nationals trying to enter the U.S., the finger printing requirement just adds to the headache. Is the biometric technology advanced enough to make meeting the requirement quick and easy; only time will tell.       ¼/p>

U.S. Customs and Border Patrol (CBP) has recently published a guide to its new pilot program–”Global Entry.” The program is  voluntary and allows participants supposedly quick and easy re-entry into the U.S. without the need to go through Passport Control. Participants would show up at a Global Entry Kiosk, have their passports electronically read, their fingerprints confirmed and a picture taken as preconditions to entry. To participate in the pilot program, one needs to apply via the Global On-line Enrollment System, which can be found at the CBP website–www.cbp.gov. Once the electronic application is approved, the applicant will be scheduled for an interview, to take place at a Global Entry Enrollment Center. Currently, only selected U.S. Airports (including Kennedy Airport in NY) would participate in the program, which is restricted to U.S. Citizens and Lawful Permanent Residents.

Although the objective of the program is to facilitate the entry of qualified travelers into the U.S., it remains to be seen whether members of the public will ultimately see it to their advantage to provide the U.S. Government yet more information concerning their personal lives. Although the use of the biometric data and background information obtained from applicants is only supposed to facilitate Global Entry, this security aspect of the program may well prove a discouraging factor. Moreover, the program will only make sense if it benefits travelers by making the entry process a more efficient one. Again, on this point, the jury is out. Only time will tell whether the biometric technology that Global Entry will be relying on, will prove to be reliable.             ¼/p>

So you came to the U.S. on a B-2 tourist visa and decided to stay a while–a few months, six month, more than a year–beyond the expiration of your authorized stay. You may find that even if you subsequently leave the U.S. completely voluntarily, coming back may be harder than you think. Since 1997, aliens unlawfully present in the United States for a period of more than 180 days (but less than a year) and who choose voluntarily to leave the U.S. before removal proceedings are commenced, may find themselves barred from re-entering the U.S. for three years. Paradoxically, persons granted voluntary departure after removal proceedings have begun are not subject to the three year bar.  In a 1998 State Department Memo explaining this apparent contradiction, the writer explained that aliens who find themselves in removal proceedings may well be subject to bars imposed under other sections of the Immigration and Nationality Act. 

For persons who have unlawfully been in the U.S. for a year or more, the so called “bar to admissibility” is not 3 years but 10 years, commencing from the date of departure or removal. Moreover, unlike the three year bar, it does not make any difference with respect to the ten year bar whether the alien departs prior to or after the commencement of removal proceedings.  An additional distinction between the two bars is that with respect to the three year bar, where an an alien had lawfully entered the U.S., has filed a non-frivolous application for change of status or extension of status before the expiration of lawful status, and has not been employed without authorization before or during the pendency of the application, the alien’s accumulation of unlawful presence is tolled for 120 days. In the case of an alien unlawfully in the U.S. for a year or more, this tolling period does not apply.

Significantly, with respect to F (Students) and J (Exchange Program Participants) (also called duration of status visa holders), unlawful presence does not begin to accrue until either an immigration judge enters an order of removal, deportation or exclusion after a proceeding or USCIS  issues a determination denying the student applicant an immigration benefit.

The bars described above automatically prohibit covered aliens from re-entering the U.S. but it should be noted that insofar as consular officers are afforded considerable discretion in granting visa applications, an individual who evidences an immigration violation may still be denied a visa on the basis of consular discretion, even where no bar applies. Furthermore, even if an alien waits the requisite three or ten years prior to applying for re-admission to the U.S. this does not guarantee that his visa application will be granted. For aliens who need to pursue consular processing (i.e. return to their country of nationality) in order to adjust or change their status,  the inadmissiblity bars could make adjustment impossible.

In our experience, the practical result of the inadmissibility bars has been to discourage undocumented aliens from leaving the the U.S. on account of the fear that they will not be allowed back in the country.  As usual, the contradictory incentives created by the inadmissibility bars, which can encourage undocumented aliens to remain in the U.S.  and hazard apprehension and removal underscores the short-sighted bandaid approach to our immigration policy that has been pursued for the last ten or more years.  

The summary above is intended to be informational only and should not be relied on as legal advice. The application of the bars to admissibility can vary from case to case, so if you have a question about whether you or someone you know may be subject to a bar, our recommendation is to speak to an immigration lawyer. 

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