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Tips for the International Business Traveler:
This page is designed to help international business persons through the maze of United States immigration controls in American consulates throughout the world and at a port of entry to the United States.
| Tip #1 - Embassy and Consulate: what is the difference? | Tip #2 - Consulate visa handling |
| Tip #3 - American Consulate employees | Tip #4 - Presumption of immigrant intent |
| Tip #5 - The role of American law enforcement in denying a visa | Tip #6- Legal help if a visa has been denied |
| Tip #7 - How to avoid the immigrant intent trap | Tip #8 - How to avoid mistakes when talking to a consular or immigration officer |
| Tip #9 - Information about the visa document | Tip #10 - Difference between immigrant and nonimmigrant visas |
| Tip #11 - B-1 and B-2 visitor’s visas | Tip #12 - H-1, L, and E visas with respect to immigrant intent |
| Tip #13 - Government agencies that handle admission to the U.S. | Tip #14 - Information about the I-94 document |
| Tip #15 - Information about the I-94 W document | Tip #16 - Coming to the United States on a nonimmigrant visa or without a visa |
| Tip #17 - How to avoid a “denied entry” situation | Tip #18 - The visa waiver trap |
| Tip #19 - When a visa is essential |
Tip - Embassy and Consulate: what is the difference?
The difference between the word “embassy”
and the word “consulate” is that a consulate is
that part of an embassy which deals with immigration matters. There is one American
embassy in nearly every country. There may be several American consulates in
a country. The American ambassador is in charge of the embassy. The consular
function is headed by a consul general.
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Tip - Consulate visa handling
Not every consulate handles both immigrant and nonimmigrant
visas. Some handle only one type or the other. Which consulate handles fiancé(ée)
visas varies from country to country.
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Tip - American Consulate employees
Be aware that not all persons working at an American
consulate are Americans, nor are all of the employees talking with aliens, consular
officers. Many are nationals of the country where the consulate is located,
and have no official powers. Even if the person is American, she or he may simply
be a clerk or administrative employee without legal powers. Only a consular
officer is empowered to deny or grant a visa.
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Tip - Presumption of immigrant intent
Most consular officers and immigration officers are dedicated
and honest and abide by our laws. However, as in all walks in life, there are
those who feel they are above the law. Further, it should be kept in mind that
the focus of both types of officers is to determine if you are subject to one
of the grounds of exclusion from the United States, not to find reasons to admit
you. There is, in our immigration law, a legal presumption of the intent to immigrate. This means that legally, a consular or immigration officer
is bound to assume that you intend to come to the United States permanently
until you persuade her/him otherwise. This can be a problem with any nonimmigrant
visa.
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Tip - The role of American law enforcement in denying a visa
Consular officers, under American law have virtually unappealable
power to deny a visa. The less you know about the visa issuing process, the
greater the risk of a denial. The focus of the consular officer is on finding
reasons to deny a visa. There is a legal procedure for turning a visa denial
around, where there has been a clear error of law; however, denials are normally
couched in language which will ensure that the denial will not be overturned
as a matter of law.
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Tip - Legal help if a visa has been denied
If you are denied a visa, you may wish to consider getting
legal help from an immigration lawyer. Many visa denials are turned around.
If you are turned down for a visa, you should ask for
the reasons in writing, get the name of the person who interviewed you, and
immediately write down the questions you were asked and the answers you gave,
as close to word by word as possible. This will help your attorney determine
what needs to be done to overturn the denial.
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Tip - How to avoid the immigrant intent trap
To avoid the immigrant intent trap,
the traveler should be very conscious that a person must have a nonimmigrant
intent to be granted a nonimmigrant visa, such as a visitor’s visa or
a temporary work visa. When the person applies for a nonimmigrant visa, they
are frequently asked questions which are designed to bring out information which
would justify the consular officer or the immigration officer in denying the
visa or entry into the United States. If, for example, the alien arrives in
the United States on a visitor’s visa with an unusually large amount of
clothing the inspecting officer may conclude that the person intends to stay
permanently. Luggage is often searched and if there is a letter there in which
there is a discussion of the person possibly coming to America permanently,
the officer will conclude that he intends to stay permanently and will deny
him entry. While, from the legal perspective, a person may have a legitimate
dual intent to come temporarily on a visit and return at the end of his authorized
stay, unless and until he has a lawful extension or is granted other lawful
status BCIS officers and consular officers usually do not give this legal principle
any serious consideration.
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Tip - How to avoid mistakes when talking to a consular or immigration officer
Perhaps the greatest mistake one can make is to say something
to a consular officer or an immigration officer which might be construed as
a “lie.” While from the legal perspective, only
a lie which constitutes a material misrepresentation is grounds for negative
action, the consular officer or immigration officer will pounce on even the
most immaterial misrepresentation to deny the person entry into the United States
or to deny her a visa. This reflects a cultural attitude on the part of Americans.
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Tip - Information about the visa document
A visa is a document, often in the form
of a rubber stamp in the person’s passport, issued by a consular officer
at an American embassy or consulate abroad, which authorizes an alien to travel
to the United States and apply to the Immigration & Nationality Service
for admission. It also authorizes air and sea carriers to transport the person
to the United States. If the person does not have a visa, he will not be permitted
to board the aircraft or ship. A visa does not guarantee that the person will
be admitted. The BCIS can refuse admission to the U.S. even though the person
has a valid visa issued by the DOS. A visa does not authorize a person to enter
the U.S. for any period of time. It is the BCIS which makes that determination
upon the arrival of the person at a point of entry. The expiration date on the
visa is simply the last date upon which the visa can be used to proceed to the
United States and apply for entry.
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Tip - Difference between immigrant and nonimmigrant visas
The difference between an “immigrant”
and a “nonimmigrant” is substantial in terms of
limitations on work authorization and constitutional rights. A nonimmigrant
has almost no constitutional rights while a permanent resident has limited constitutional
rights. A nonimmigrant is one who does not intend to remain in the United States
permanently. An immigrant is one who intends to remain in the
United States permanently. Of course, immigration officers cannot read a person’s
mind. Therefore the BCIS has developed extensive and rather arbitrary rules to
determine what a person’s intent is. This is perhaps the most pervasive
problem in the administration of the immigration laws of the United States.
The biggest single trap for the unwary, uninformed, or misinformed person is
the “immigrant intent trap.”
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Tip - B-1 and B-2 visitor’s visas
If you come from one of the countries where persons are
not required to have visas, under the Visa Waiver Pilot Program, and apply for
a B-1, B-2 visitor’s visa, you will often be told that you do not need
a visa. To get that consul to issue a visa, you will need to persuade her that
you have a valid reason. Since the program allows for entry only for 90 days,
one would need a visa if their business or pleasure trip was intended for more
than 90 days, or if it might be that you will need an extension if your business
might not be concluded within 90 days. You would need to be fairly specific
as your reason to ask for the visa in terms of the visit lasting possibly longer
than 90 days.
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Tip - H-1, L, and E visas with respect to immigrant intent
The presumption of immigrant intent does not
apply to H-1 visas, L visas or E visas. While these aliens are required
to intend to depart the country at the conclusion of their authorized period
of stay, they are not required to “maintain a residence abroad,”
and consular officers do not normally jump to the conclusion that they intend
to remain in the United States permanently, even if there is an indication of a
wish to ultimately get permanent residence.
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Tip - Government agencies that handle admission to the United States
Two different government agencies are involved in the
process for the temporary admission of business persons at the border of the
United States, or at sea or air ports of entry. American consulates are part
of the United States Department of State (DOS), which deals with the relationship
between other countries and the United States. It is headed by the Secretary
of State. The United States Bureau of Citizenship and Immigration Services (BCIS) is
a part of the United States Department of Justice, which is headed by the Attorney
General.
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Tip - Information about the I-94 document
An I-94 is a document which is issued
to persons admitted to the United States as a nonimmigrant. The immigration
officer, at the port of entry, determines whether she/he will admit the traveler
and writes on the form the category of admission, such as “B-1" (Business
Visitor), and the expiration date of the authorized stay.
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Tip - Information about the I-94 W document
An I-94 W is a green colored version
of the normal white I-94. This is given to people from countries which have
reciprocal agreements to let their nationals into the United States without
a visa.
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Tip - Coming to the United States on a nonimmigrant visa or without a visa
If you are coming to the United States on a nonimmigrant
visa or without a visa, make sure you can demonstrate that you have solid plans
to depart the United States at the end of your authorized stay, and that you
have no current intention to attempt to stay in the United States or to become
a permanent resident. Examples of cases where the person will almost certainly
be denied entry on the basis that he intends to become an immigrant (permanent
resident) are cases where the person is married to a U.S. citizen or permanent
resident, is engaged to be married to one, or where there is a pending application
for an alien labor certification or an immigrant petition has been filed. Persons
needing to come to the United States though there is some indication of a desire
to remain in the United States would be well advised to consult with an immigration
officer before doing so.
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Tip - How to avoid a “denied entry” situation
If, upon your arrival in the United States, the BCIS indicates
that it is going to deny you entry, you should indicate to the officer that
you wish to withdraw your application for admission and depart the country.
The reason for this is the provision for expedited removal of aliens under the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Under this
provision, an immigration officer is required to order an excludable alien’s
removal without a hearing, appeal or other review. The order triggers a 5 year
bar to re-entry and also carries the possibility of a permanent bar. If the
alien is permitted to withdraw his or her application for admission, she or
he avoids the bar because he or she has not been “denied entry.”
Anyone in this situation should immediately consult an immigration attorney.
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Tip - The visa waiver trap
Beware of the visa waiver trap. Beware
of the person who tells you do not need a visa to come to the United States
because you are from one of the countries whose citizens are not required to
have visas. These people often do not reveal, whether they know it or not, that
there are strict limitations on entries into the United States under the Visa
Waiver Pilot Program. If they enter without a visa there is virtually no way
to extend one’s stay, even for a few days, other than for an extreme emergency.
So, if they come, for example for a business matter, and that matter is not
concluded within 90 days, they will have to leave the country. If they come
and obtain a job offer, they will not be able to change to a work visa such
as H-1 without first leaving the country. Leaving the country and going to Canada
or Mexico and attempting to return to the U.S. without a visa is problematical.
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Tip - When a visa is essential
If getting a visa has some critical importance to you,
you may wish to consult with an immigration lawyer before applying. She or he
can advise you of what documents you will need for your particular case and
what mistakes can be avoided. This could be done in a consultation of less than
one hour. You would also have the option of having legal representation throughout
the process.
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