Simmons & Ungar :News: Special Registration

If you are planning foreign travel you need to be sure you have a valid visa (stamp/sticker from theU.S. consulate with your photo on it) in the appropriate category in your passport to return to the U.S. or you have scheduled an appointment to apply for the visa during your trip abroad. Since some U.S. consulates are weeks and even months behind in scheduling visa appointments, you should schedule the appointment in advance of departure. Any person who has been arrested, convicted or even fingerprinted for a law enforcement purpose may face a delay of possibly months while the consulate investigates the matter. (Also a delay may occur if you have the same or similar name of someone who has been arrested, convicted, or fingerprinted.)

Also, on return to the U.S., the Immigration Service limits the admission period (how long a person's nonimmigrant status is valid as noted on the I-94 entry card issued by the immigration official at the port of entry) to the validity of the passport and in some instances, even 6 months before the expiration date of the passport, even if the nonimmigrant petition was approved for a longer period of time. This means you should carefully monitor the expiration date of your passport and apply to extend or renew it as early as possible prior to the expiration date. Overstaying the admission period indicated on an I-94 card is a ground of "deportation" and thus should also be carefully monitored.

In light of security measures, applying for nonimmigrant visas can be more time-consuming and uncertain than in the past. This Travel Advisory addresses some of the most common issues. In summary, persons planning to travel to the U.S. and who need to obtain a visa before returning to the U.S. should review any reasons that could cause them to be ineligible for admission to the U.S.; consult the website of the U.S. consulate where they intend to apply for the visa; and carefully assemble all documents necessary to demonstrate eligibility for the visa. Significant delays may occur if a security or criminal issue arises or incomplete documentation is presented at the visa interview.

Persons who are concerned about the possibility of substantial delays or problems in obtaining their visas should consult with an attorney.

Mandatory Entry & Departure Procedures

In January 2004, the U.S. began to implement US-VISIT (United States Visitor and Immigrant Status Indicator Technology Program), through which most non_immigrants arriving at and departing from the U.S. are required to provide biometric identifiers, including scanned fingerprints and digital photographs, as well as documentation of their non_immigrant status. US_VISIT entry procedures are currently in place at 115 airports, 15 seaports and in the secondary inspection areas of the 50 busiest land ports of entry. US_VISIT exit procedures are operating at 12 airports and two seaports. At the ports where US-VISIT procedures are operating, upon departure, persons subject to US-VISIT are required to leave the U.S. through kiosks or work stations where their travel/immigration documents (for example, passport, U.S. visas, non_immigrant status approvals, and other non_immigrant documents, such as a SEVIS I_20 or DS_2019) will be scanned and/or inspected, and their fingerprints will be taken. A receipt is given to prove compliance with US-VISIT. The Department of Homeland Security has stated that a live exit attendant should be available to assist in the process. A list of ports where exit procedures are in place is available at the Department of Homeland Security’s website: http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0525.xml

Because failure to comply with US-VISIT can have serious consequences, it is critical to find out if the U.S. port/border you will be traveling through has the capacity for arrival and/or departure US-VISIT procedures, and to comply with such procedures at any port with such capacity. The law says that individuals who do not comply with U.S. VISIT may be found in violation of the terms of their U.S. immigration status and be denied a U.S. visa, U.S. immigration status, or admission to the U.S. in the future.

Mandatory Non-Immigrant Visa Interviews

All nonimmigrant visa applicants who are ages 14 to 79 are required to attend a personal interview at the U.S. consulate. Consular officers have the authority to waive the requirement of the personal interview ONLY in rare circumstances such as:

In some instances, this means that there may be significant delays in obtaining visas at the U.S. consulates for even the most straightforward cases. Many consulates are moving to an appointment system. The Department of State’s “Visa Wait Times for Interview Appointment” website located at http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php provides information regarding the visa appointment scheduling and visa issuance times for different visa types at various U.S. consulates. Moreover, it is very important to look at the consulate’s website prior to traveling to determine the process for applying for the visa and what documents are required. Even for applicants who will not require a personal interview, there may be delays in visa processing.

DS-156 Form & Transfer of the Form to the Port of Entry, DS-157 Form, and DS-158 Form

The DS-156 form asks detailed questions about a person’s background. For instance, the form specifically asks whether the applicant has been “arrested” and it specifically asks whether the applicant has ever “violated the terms of status” or was “unlawfully present” in the United States. Many persons may have to answer “yes” to these questions even if they are eligible to receive visas. Some instances might include a person arrested and convicted of drunk driving or shoplifting, a student who dropped out of school while in F status in the U.S., or a person who stayed in the U.S. after the expiration of his or her I-94 card for a short period of time.

Answering “yes” to any of these questions will most likely lead to a delay in the processing of the visa and will require the applicant to submit documents explaining the reasons for the “yes” answer. If you believe that you will have to answer “yes” to any of the questions on the DS-156 form, you should contact your attorney before making your travel plans to review your eligibility for a visa.

The DS-156 Form may be downloaded from the State Department’s web site at http://foia.state.gov/FORMS/visa/ds0156.pdf. Some consulates prefer that applicants use the electronic version of the DS-156 Form which can be accessed at http://evisaforms.state.gov/. Each consulate’s website should indicate if it prefers the electronic online version of the form.

We do caution persons to be truthful on the application. Please note that at the border or airport, immigration officers are now able to electronically access a copy of the nonimmigrant’s DS-156 application and compare the answers to immigration and criminal record databases.

The DS-157 is now required for all male nonimmigrant visa applicants between the ages of 16 and 45, regardless of nationality and regardless of where they apply. (The DS-157 Form may be downloaded from the State Department’s website at http://foia.state.gov/FORMS/visa/ds0157.pdf). The consulate may also ask other non-immigrant visa applicants to fill out this form in its discretion. This form asks questions about your: parents, prior employment, travel history, education, skills, knowledge, passport(s), travel plans, membership in organizations, and military service history (if any). If you have worked for any employer in the U.S. without permission from the Immigration Service; did not comply with the terms of your F or M student status in the U.S. (for example, dropped out); have had a passport issued by, traveled to, or resided in a country suspected by the U.S. to have active terrorist groups operating in them; belong to an organization that has or might be viewed as having ties with terrorist organizations; or have specialized skills or training such as nuclear, biological, or chemical experience – you should consider consulting an attorney before you submit your nonimmigrant visa application.

The DS-158 form (Contact Information and Work History for Nonimmigrant Visa Applicant) is required for all applicants for an F, M or J visa. (The DS-158 Form may be downloaded from the State Department’s web site at http://www.state.gov/documents/organization/12154.pdf). This form asks for basic biographic information and employment/work history. You should consider consulting with an attorney before submitting your nonimmigrant visa application if you have worked unlawfully in the U.S. You should also consider consulting with an attorney if your future/former work or studies involve(d) sensitive technologies including but not limited to nuclear, laser, missile, explosive or other weapons technologies OR your former studies/work involved potential affiliations with organizations with suspected terrorist ties.

As of October 26, 2004, as part of the Biometric Visa Program consular officers are required to take fingerprints of the two index fingers of nearly all immigrant and nonimmigrant visa applicants.

In addition, the consulate runs a name check through the Consular Lookout and Support System (CLASS) for every applicant. CLASS includes information from the Department of State, the Immigration Service, CIA, FBI, DEA, Department of Justice, TIPOFF (a database of suspected terrorists), the U.S. Marshal’s Service and the FBI’s National Crime Information Center (NCIC). Because of the inclusion of the NCIC information in CLASS, there have been numerous “hits” which require security checks and full fingerprinting. Once the fingerprint report has been received from the FBI, the applicant may provide evidence to rebut or explain the “hit” but the evidence will NOT be accepted in advance of the FBI report from the fingerprinting. For this reason, persons anticipating a “hit” from the NCIC may encounter delays in obtaining a visa even if they would ultimately be found to be eligible for the visa.

Additional security checks (Visas Condor) are done for any males between the ages of 16 and 45 born in or a citizen of a “List of 26" countries which have predominantly Muslim populations —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 — as well as North Korea and Cuba. In addition, a “Visas Condor” inquiry can be triggered by an applicant’s travel and educational history, employer information and military service as provided on the DS-157 form. When a “Visas Condor” cable is sent, the consulate must receive a positive clearance response before issuing the visa. These clearances may go through relatively quickly, but if any adverse information does surface, there could be significant delays in visa issuance and potential visa denial.

The Technology Alert List (TAL) lists those fields considered to involve sensitive technology. Visas cannot be issued to persons where there is reason to believe that a person is seeking to enter the United States to violate or evade U.S. laws prohibiting the export of goods, technology or sensitive information. The TAL contains many “dual use” technologies — both benign and military. In practice, this has resulted in TAL security checks (Visas Donkey Mantis & Eagle Mantis) for some visa applicants from China, India, Israel, Pakistan and Russia. Persons who work with potential “dual use” technologies might wish to carry with them a letter from their employer detailing the exact nature of their work at present as well as in the past — to clarify its benign nature.

For persons from Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria who might be engaged in activities prohibited under the TAL, the consulate must obtain a “security advisory opinion.”

U.S. nonimmigrant visas are issued for the same period of time and same number of entries which are allowed by the country of the nonimmigrant applicant’’s nationality. These so-called reciprocity schedules result in some visas being issued for a much shorter period of time than potentially available. Common reciprocity restrictions are 1 year L-1 visas for nationals of India and 3 month and 2 entry H-1B visas for nationals of China (one entry for H-4 visa holders from China).

Persons may apply for nonimmigrant visas in some of the U.S. consulates in Canada or Mexico. This option, however, should only be pursued with extreme caution. No longer can a person applying for a visa in Mexico or Canada return to the United States using a valid I-94 card while the visa application is pending or after it has been denied. Persons applying for visas in Canada or Mexico CANNOT take advantage of the rule allowing re-entry from a contiguous territory or adjacent island using their valid I-94 card alone. If a visa is refused by the U.S. consulate in Canada or Mexico, the person must travel back to his or her home country to apply for the visa. Persons should review the State Department’s websites relating to visa applications at U.S. consulates in Canada (https://www.nvars.com/use/ ) and Mexico(http://www.visa_usa.com.mx/ ) and consider consulting with an attorney before proceeding with this option.