Advising Regarding International Travel: How to Anticipate and Avoid Delays
November 6, 2007
No single area of immigration advising has seen greater changes in the post - 9/11 world than international travel. There is no worse feeling for the immigration advisor -- and the foreign national (FN) she is advising -- than the sense of despair and frustration when the FN is stranded overseas. Whether because of security issues or immigration issues, a FN who may have expected to make a short trip outside of the U.S. and obtain a visa while overseas may learn to his chagrin that issuance of his visa will be delayed for days, weeks, months, or even forever. It is often the case, especially with security clearance delays, that there is very little if anything that can be done to expedite the process. However, often it is possible to advise the foreign national in advance of travel of the likelihood of such problems occurring, which may result in his making a wise decision to forego international travel, at least until he is able to obtain advance parole travel permission or permanent resident status.
The author has been advising foreign nationals on international travel issues for close to thirty years. The following list represents a compendium of characteristics that should be explored during a consultation with a FN that might lead to advice that the FN is in a high risk category for international travel:
Security Clearance Issues
- Prior Visa Delays:
If an FN has experienced a security clearance delay in the past prior to being issued a visa, it is not a sign that the next visa application will be smooth and expeditious because the security clearance issue was resolved previously. Rather, it is likely that the issue that created the security clearance delay previously will create a security clearance delay on subsequent applications.
- Prior CIS Adjudication Delays:
It may surprise many to know that every CIS adjudication involves a level of security clearance review. A delay in a CIS adjudication because of background checks and security clearances is a likely sign of a potential delay at a U.S. consulate in connection with a visa application. The contrary, however, is not true. The lack of a CIS adjudication delay does not portend an expeditious visa issuance process. Security clearances performed by the Department of State in connection with a visa application are different and more extensive than those performed by CIS.
- Prior Port of Entry Problems:
A delay-- often repeated delays --in port of entry inspection, including secondary inspection, is a sign that there is something in one of the government databases regarding the FN or a person with a same or similar name as the FN. Such a delay portends a potential problem the next time the FN needs to apply for a visa overseas.
- Country of Birth/Nationality:
Foreign nationals born in, or citizens of, countries designated as state sponsors of terrorism, as well as FNs who are citizens or nationals of approximately 26 Muslim-dominated countries, are more likely to experience security clearance delays, including a type of security clearance ('Condor') that is specifically for nationals of those countries.
- Countries Traveled to Previously:
Form DS-157 now provides this information to consular officers. FNs who have traveled to the countries specified in #4 above may undergo some of the same checks as are done with nationals who are citizens of those countries and, as such, may be subject to the same or similar security clearance delays.
- Criminal Violations:
The NCIC database provides information regarding criminal violations. A hit in this database will likely engender a delay. Depending upon the nature of the criminal violation, it may engender worse than a delay; viz., a denial of a visa.
- Technology Alert List Issues:
The Technology Alert List is a classified list of 'technologies' that the U.S. government has determined it wants to prevent getting in to the hands of foreign countries. The list is very expansive, and goes far beyond what one might consider to be sensitive technology. If a FN has had access to one of these technologies, especially if the technology may not be widely available to the public, the consular officer, in her discretion, can send to Washington for a 'Visas Mantis' check. This clearance can average two weeks or longer. Although the Technology Alert List is applicable to all countries, this issue is more likely to arise with nationals of Russia, China, India, Pakistan and Israel, as well as state-sponsor-of-terrorism countries.
- Common Names
Of all of the security clearance delay characteristics, this is both the most surprising and sometimes the least predictable. Every FN goes through a name check clearance ('Visas Donkey'). The name is inputted into the system only with the consonants (not the vowels) in the person's name. If someone else with the same name and the same or fairly close date of birth appears in the system, there is a 'hit' which needs to be resolved in Washington. Through no fault of the FN's own, other than that he might have a common name in his country, the sometimes long delay may prevent the FN from returning to the United States.
- Prior Immigration Violations.
The revised DS-156, Nonimmigrant Visa Application, requires the FN to state whether she has ever violated her immigration status in the US. An affirmative answer is likely to result in significant questions to determine whether such a violation prevents issuance of the present visa. Even if it doesn't prevent issuance of the visa, it may raise issues in the consul's mind as to whether the FN will violate status again if the visa is issued.
This is a section of the Immigration and Nationality Act that is triggered if an alien remains in the United States 'beyond the period of stay authorized by the Attorney General'. There are very complicated rules regarding who has 'unlawful presence' for purposes of Section 222(g), and these rules are often misunderstood by consular officers. As a general rule, if an alien has stayed beyond the expiration date on her I-94, she may be subject to this prohibition. Again as a general rule, although often not known to consular officers, aliens whose I-94 indicate 'DS' should not be subject to 222(g) absent an express finding by an immigration officer or immigration judge that the FN has violated his status. The impact of a '222(g) finding is that all future visas much be applied for in the FN's country of nationality or citizenship and all visas in the FN's passport as of the date the FN subjected himself to '222(g) are considered void.
- 3/10 Year Bar Issues
As a general rule, the same period of 'unlawful presence' that triggered 222(g) may trigger a three or ten year bar, preventing the FN from returning to the U.S. for that period of time. Unlike 222(g), which occurs on the first day of unlawful presence, the three year bar is not triggered until the FN has 180 days of unlawful presence, and the ten year bar is not triggered until the FN has one year of unlawful presence.
- Prior Visa Denial or Visa Cancellation
If the FN's DS-156 or a review of the FN's passport, including an 'application received' annotation in the passport, indicates visa denial in the past or the cancellation, especially cancellation with prejudice, of a previously issued visa, many questions are likely to be raised in the mind of the consular officer. Depending upon the reasons for the visa denial or visa cancellation, there may be delays in issuance of a new visa, or possibly the new visa will not be issued at all.
- 214(b)/Dual Intent Issues
Most visas require the FN to prove that she has a residence in her home country to which she intends to return (Immigration and Nationality Act '214(b)). Exceptions include H-1B and L-1, including derivatives, and, for most purposes, O and E visas. If an FN who is subject to 214(b) has had long periods of time in the U.S., perhaps coupled with short absences from the U.S., there is a greater risk of visa denial. Certainly, if the FN has initiated the permanent residence process, visa denial can become a likelihood. The FN should be prepared to prove to the satisfaction of the consular officer all of the indicia of residence that he has in his home country and all of the reasons that he has for a merely temporary stay in the U.S.
- Change of Status in U.S.
If a consular officer has issued a visa - such as a B visa --and the FN, especially after a short period of time, changes status in the U.S., the consular officer often feels deceived. This could lead to a subsequent denial of a visa despite the approval of the change of status by CIS. It is especially likely to occur where the change of status occurred within sixty days of entry into the U.S. It is also more likely to occur if the event that triggered the change of status -- such as the application to a school that generated a subsequent F-1 application -- occurred within sixty days of entry.
- Pending Change/Extension of Status
Let's say that an FN is in valid B-2 status with an expiration date of June 30. On June 1, the FN applies for a change of status to H-1B. On August 10, while the change of status is pending, the FN departs the United States and turns in her I-94 card at the airport. Although the FN had timely filed for a change of status, and was considered in valid status at the time of departure, the CLAIMS database will show that the FN left the U.S. after her I-94 termination date expired. This could lead to problems both in visa issuance and problems at the port of entry upon return to the U.S. The FN in this situation should be prepared to present the receipt notice showing the timely- filed application as well as the approval notice, assuming one is issued.
FNs in F-1 and J-1 status may be entitled to periods of practical training ranging from one year to three years. This is often referred to as OPT. During this period of time, the F-1 or J-1 is able to remain in the United States to look for a job and then to work for an employer without any employer sponsorship. Although this is a completely legal status, some consular officers are reticent to issue visas. This is especially likely to occur if either (a) the FN is unemployed or does not have a job offer, (b) the FN has been in the United States for an extended period of time raising questions whether he will return to his home country at the conclusion of the OPT period or (c) only a short period of time remains on the OPT.
- Fraud Profile
Many countries, and many U.S. consuls, have developed fraud profiles. If an FN fits one of those profiles, an investigation may be generated that could cause a delay in visa issuance or possibly a denial if fraud is discovered.
- Short Travel Time:
Even if there is no delay in visa issuance following a visa interview, the FN could be in for a very unhappy revelation. There are long delays at many consulates around the world just to get a visa appointment. If the FN had planned a five day trip to her home country, and it takes four weeks just to get a visa appointment, disappointment is assured.
Although the visa issuance process remains shrouded in uncertainty to many, and although visa issuance can never be assured in a certain period of time or at all, it is often possible to prevent surprises by performing a thorough consultation with the prospective traveler to determine whether any of the above factors exist. In the event one or more factors do exist, the FN should be advised regarding possible delays or denials in visa issuance, so that the FN can make an intelligent decision regarding the option of traveling or refraining from travel.