New I-94 Website Feature Helps Foreign Nationals Avoid Overstaying in the U.S.

U.S. Customs and Border Protection has recently announced that they will now remind travelers via email and a new feature on the I-94 website of the last possible date they must depart the U.S. to comply with the terms of their admission. Currently, only eligible Visa Waiver Program travelers can utilize the new “Compliance Check” feature on the I-94 website to check how much longer they can legally remain in the U.S. without overstaying the terms of their admission. However, CBP has advised that further updates to the I-94 website are expected to incorporate additional nonimmigrant travelers.

To check the status of their admission in the U.S., eligible travelers can visit the I-94 website, click on the “View Compliance” icon and enter their name, birthdate, passport number and passport country of issuance. This check will inform travelers of how many days are remaining on their admission or how many days they have remained in the U.S. past their admitted until date.

If a traveler has overstayed the terms of their admission, the new I-94 website feature will provide the individual with information regarding what to do next. An overstay is someone who was lawfully admitted to the U.S. for an authorized period, but remained in the U.S. beyond his or her lawful period of admission. Overstaying the terms of your admission is significant as many overstays are not eligible to adjust or extend their status in the U.S. and in some cases, may trigger unlawful presence bars when they ultimately depart the U.S.

Although the new “Compliance Check” feature is currently only available to eligible Visa Waiver Program travelers, all travelers can check their admit until date on the I-94 website. To check their admit until date, travelers can click the “Get Most Recent I-94” icon and enter their traveler information (name, birthdate, passport number and passport country of issuance). It is important for travelers to be advised of their admit until date as periods of admission can vary widely depending on the traveler’s class of admission and/or visa type. For example, individuals traveling to the U.S. as B1/B2 visitors are admitted for a fixed period of time whereas students traveling to the U.S. in F-1 status are admitted for duration of status (D/S), which is based on the completion of a degree program.

Form I-94, Arrival/Departure Record, is of utmost importance for nonimmigrant visitors as it provides proof of their lawful admission to the U.S., which is necessary to verify alien registration, immigration status and employment authorization. Notably, in May 2013, CBP automated the I-94 system for travelers arriving to the U.S. by air and sea. The automated system eliminated the need for paper forms and manual data entry by allowing CBP Officers to create the I-94 record at the time of inspection.

More recently, in September 2016, CBP also launched an online I-94 application and payment option for travelers arriving at a land port of entry. Individuals may provide their biographic and travel information and pay the $6 fee online up to seven days prior to their entry.

These changes/upgrades to the I-94 system demonstrate CBP’s continued commitment towards improving the international travel experience for both U.S. citizens and visitors to the U.S. The new I-94 website feature makes it much easier for travelers to find their last possible departure date and to comply with their terms of admission.

Consequences Arising from the Presidents Executive Order on Immigration

On January 27, 2017, President Trump signed an Executive Order (EO) “Protecting the Nation From Terrorist Attacks by Foreign Nation” which became effective immediately.  Over the course of the last two days, the EO has resulted in uncertainty, fear, litigation and support for the immigrant community. 

Below are some of the highlights that we believe may directly impact our firm’s clients: 

Immediate Suspension of Issuance of Visas and Admission to the U.S. for Nationals from Designated Countries

The EO immediately suspends the issuance of visas and admission to the U.S. of nationals from the following seven (7) designated countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - for a period of 90 days (excludes those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C-2 visa for travel to the United Nations). The EO indicates that additional countries could be added to the list as determined by DHS and DOS. After the 90 day period, travel will not be immediately restored – instead, countries must undergo various vetting procedures. During this time period, the EO does allow U.S. Dept. of State (DOS) and U.S. Dept. of Homeland Security (DHS) to issue visas, admit or grant other immigration benefits to affected individuals on a “case-by-case” basis and when it is in the “national interest”.

Who is impacted in the meantime?

• Dual Nationals
  • The EO isn’t clear on the definition of ‘from’ the designated countries – in an abundance of caution, it may be best to interpret the term as broadly as possible – to include passport holders, citizens, nationals, dual nationals, etc.
• U.S. Nonimmigrants & U.S. Immigrants from a Designated Country
  • This includes those individuals who were outside the U.S. at the time the EO was signed on Friday, including those in transit to the U.S.
  • Tip: If you are already in the U.S. in a valid non-immigrant status and are a national of a designated country, do not travel outside the U.S. for the near future. If you must travel, speak to an experienced immigration attorney first.
• U.S. LPR’s (inc. Conditional LPR’s)
  • While this EO originally applied to LPR’s, DHS has since confirmed that the entry of LPR’s is deemed to be in the national interest.  Accordingly, LPR’s who are also nationals of a designated country, will be allowed to re-enter the U.S., absent significant derogatory information indicating a serious threat to public safety and welfare. 
  • Tip: LPR’s who are nationals of a designated country should be prepared to be placed into secondary inspection and questioned upon re-entry into the U.S.
• Canadians
  • DHS has indicated to Canada Officials that naturalized Canadian citizens who are also nationals of a designated country will continue to be treated as Canadian citizens (who are visa-exempt).  Locally, we have seen CBP following this practice at our U.S.-Canada Ports of Entry.

How are the various govt. agencies handling the EO?

• U.S. Dept. of State (DOS)
  • DOS has been instructed not to issue visa to individuals of a designated country.  Pending visa appointments are being cancelled.
• U.S. Customs & Border Protection (CBP)
  • CBP is denying entry to individuals from these designated countries despite their facially valid visas. 
  • CBP is then detaining these individuals until they are able to secure a return flight to their country of origin or CBP grants them a waiver for entry (if applicable, based on any legal stays or on a case-by-case basis).
• U.S. Citizenship & Immigration Services (USCIS)
  • There are reports that USCIS is placing a hold on applications filed by or on behalf of individuals from the countries at issue (this would include I-130’s, I-129F’s, I-765’s, etc.). 
  • It is unclear whether Humanitarian Parole may still be available to affected individuals.
• U.S. Immigration & Customs Enforcement (ICE)
  • There are reports that ICE (this presumably includes ICE Chief Counsel’s Office and ICE ERO [Enforcement & Removal Operations]) is neither approving nor denying any Prosecutorial Discretion requests until clear directives on enforcement priorities are received.
  • On January 25, 2017, President Trump signed an Executive Order “Enhancing Public Safety in the Interior of the United States” which provides for new and revised enforcement priorities for removal – noncitizens convicted of any crime, noncitizens who have been charged with committing any crime (but not yet convicted), and those noncitizens who have a final order of removal. 

Suspends the Visa Interview Waiver Program

The EO immediately suspends the visa interview waiver program that is utilized by U.S. Consulates and Embassies throughout the world to facilitate the issuance and renewal of visas for certain travelers who have been deemed low risk. The program allowed for these low risk travelers to obtain visa renewals by utilizing a “drop-box” or “mail-in” application procedure instead of personally appearing for a visa interview at their local U.S. Embassy/Consulate.

With the suspension of this program, all applicants, regardless of nationality, age and whether first-time or renewal, will need to appear in person for their visa interviews. This is likely to result in increased wait times for appointments, increased times associated with accompanying background checks (aka Administrative Processing), and an overall uncertainty for business travelers seeking to renew their existing visas while on business trips.

Should you have any questions about the above or want to discuss your specific concerns with our office, please contact us. We look forward to assisting you.

Major Changes to the Visa Waiver Program

In the wake of the horrific Paris attacks, Congress passed legislation to tighten security measures and impose new restrictions on the Visa Waiver Program (VWP), which were recently implemented.

As background, the VWP permits visa free travel for 20 million visitors per year to the United States for citizens of 38 program partner countries around the world. VWP visitors are admitted to the US as tourists or business visitors for 90 days. VWP countries include those in Western Europe, Australia, Chile, Japan, New Zealand, Singapore, South Korea and Taiwan. A full list of VWP countries can be found here.

VWP Process

Before departing for the United States, every prospective VWP traveler must receive approval through DHS’ Electronic System for Travel Authorization (ESTA). ESTA is an automated system that determines whether an individual is eligible to travel under the VWP. More information on ESTA and the ESTA application can be found here.

New Law Changes Passport Requirements for VWP Applicants

As of December 18, 2015, all VWP applicants must be in possession of machine-readable passports and beginning on April 1, 2016, all VWP applicants must be in possession of an electronic passport that is fraud resistant and contains relevant biographic and biometrics information.

Certain Individuals Are No Longer Eligible for VWP Under New Law

Under the new law, travelers in the following two (2) categories are no longer eligible to travel or be admitted to the United Sates under the VWP:

1. Nationals of VWP countries who have traveled to or been present in Syria or Iraq, any country designated as a state sponsor of terrorism (such as Sudan or Iran), or any other country that is an “area of concern” designated by DHS at any time on or after March 1, 2011.
• Unless the travel was in the course of military or government service on behalf of a VWP country
2. Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria
Notably, the VWP excludes dual nationals of those countries even if they have NOT traveled to the country – this is significant because some countries consider a person a national of their country even if they have not taken any steps to retain such nationality.

Understanding How the New Law Applies to Dual Nationals of VWP Countries and Iran, Iraq, Sudan or Syria

We understand that the concept of dual national can be confusing and the following examples should help you understand what this new rule means.

Example 1: A person who was born in Iraq and later became a citizen of Germany (a VWP country) would no longer be eligible for the VWP.

Example 2: A French national who traveled to Iraq after March 1, 2011 would no longer be eligible for the VWP (unless exemption applies).

It is worth noting that the changes to the VWP would not affect dual nationals of Canada and Iraq (or Syria, Sudan, Iran, etc.) since citizens of Canada are visa exempt (except for certain categories, not applicable here).

Not Eligible for VWP – Now What?

Individuals who are no longer eligible for the VWP program are NOT barred from traveling to the U.S. all together.

If you are not eligible for the VWP and you wish to travel to the U.S., you must apply for a visa through a U.S. Consulate abroad and appear for an in-person interview with a consular officer before being issued a U.S visa.

If you have any questions regarding how the changes to the VWP may affect your ability to travel to the U.S., please feel free to call our office to set up a consultation to speak with us.

Obtaining A Copy of Your CBP File by filing a Freedom of Information Act (FOIA) Request

Question: Dear SRW Border Lawyers,  I am a 40-year-old citizen of Great Britain. Recently, I was denied an F-1 visa pursuant to section 214(b) of the Immigration and Nationality Act (INA). I was under the impression that I had a strong case, but obviously the consulate did not feel the same. During my visa interview, the officer asked me about my previous travels to the U.S. under the Visa Waiver Program (VWP).  The officer’s line of questioning led me to believe that something may have been noted on my record about a previous entry several months ago in February.

In February, I traveled to the U.S. and applied for admission at the Los Angles airport. I was questioned and subsequently sent to secondary inspection where Customs and Border Protection (CBP) proceeded to search my belongings.  When CBP searched my wallet, they found my business card and began to question me about working in the U.S. I flatly denied that I was entering the U.S. to work. I was eventually allowed to enter the U.S., but I fear that CBP may have made a note about this incident in my record, which will make it more difficult to enter the U.S.  How can we contact CBP to see what is in my record?

Answer: Thank you for your question.  Under INA §214(b), “Every alien (with limited exceptions) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under INA §101(a)(15).”  There are some exceptions to this presumption, but none that apply in your case from what you have stated.

Put another way, under INA §214(b), a foreign national has the burden to prove to the satisfaction of the consular officer that he or she qualifies for the visa they are seeking.  Consular officers apply a two-prong analysis when determining whether a foreign national is eligible for a particular visa. Pursuant to 9 FAM 40.7 N2, a foreign national must: (1) provide sufficient evidence of “ties” to his or her own country to overcome the presumption of immigrant intent, and (2) satisfactorily prove that he or she is entitled to the nonimmigrant status being applied for (e.g. F-1 as in your case).

At this point it, it is likely premature to conclude that your F-1 visa denial was due to a previous incident with CBP. Your denial may have been the result of simply failing to satisfy both prongs of the 214(b) analysis listed above. It is possible, however, that CBP placed an entry in your record that contributed to your denial. Simply put, we do not know. The best course of action is to suspend any travel to the U.S. until we can determine what, if anything, is on your record.

In order to obtain a copy of your file from U.S. Customs & Border Protection (CBP), we can assist you in filing a Freedom of Information Act (FOIA) Request with CBP to request a complete copy of your record. Once we have a copy of your record, we will then be able to determine what steps need to be taken in order to restore your ability to travel to the U.S., whether it be reapplying for a F-1 visa through the U.S. Consulate, following up with CBP to update your records, etc.    

Should you wish to speak to us in further detail regarding your U.S. immigration concerns, please call our office and set up a consultation.  We look forward to hearing from you and being able to assist you with your U.S. immigration matters. 

Best,

The SRW Border Team