In a few weeks, summer vacation will be here and some families are planning to travel abroad. For those who intend to travel to the US, it is worth revisiting some of the common pitfalls at US ports of entry.
Temporary Visitors
The most common type of temporary visa to the US is the visitor or the B2 visa. This visa is used for a temporary stay in the US of less than six months. When traveling with a B2 visa, a traveler should understand that he should not have any prior immigration violation. The Customs and Border Protection (CBP) do check for prior violations of immigration laws at the ports of entry.
A B2 visa holder who previously applied for extension of their authorized stay in the US must ensure that their application was favorably granted. If the application was previously denied, the B2 visa holder must not have incurred unlawful presence. This means that he should not have overstayed in the US, even for just a day.
The 3-year and 10-year bars to admission are triggered if there is unlawful presence in the US of more than six months or one year, respectively. This means that the traveler may not enter the US for three years if he previously overstayed in the US for more than six months but less than one year. Those who previously overstayed for more than one year will be barred from entering the US for 10 years. These are the penalty bars for overstaying tourists.
Airport-to-Airport Cases
For those who applied for extensions of stay and whose applications were denied, there is a possibility that they will encounter problems at the port of entry. Even if the 3-year and 10-year bars do not apply to them, they may still be denied admission to the US if it is discovered that they had, even just one day, of unlawful presence. While it is not the penalty bar, the legislation under Immigration and Nationality Act (INA) Section 221(g) provides for cancellation of the visas at the port of entry. This is the reason why some B1/B2 visa holders face expedited removal upon their entry in the US. Several travelers identify this process as the “A-to-A” or the “Airport to Airport” process. It is called such because the immigration officer will deny entry at the airport and compel the return of the visitor to his port of origin.
There are several reasons for subjecting travelers to the airport-to-airport process. The most common is the record of a prior overstay of the tourist in the US; as well as those tourists who are suspected to be “intending immigrants” by the immigration officer.
Common examples of an intending immigrant visitor visa holder are registered nurses from the Philippines. A tourist visa holder who happens to be a nurse will be questioned at the port of entry in regards her intention in entering the US. If it is discovered that she will take the nursing board or the NCLEX and plans to find a petitioner, the immigration officer may deny entry to this nurse even if she is in possession of a valid visitor’s visa.
It is also not uncommon for CBP officers to search a traveler’s baggage in a secondary inspection. If it is discovered, for example, that a nurse is carrying her diploma and transcript, she may be suspected of being an “intending immigrant”. She may be denied entry and sent back to Manila on the next available flight. This is an expedited removal process.
When the intention of the traveler is not clearly determined on first inspection, further questioning may be conducted. A visitor visa holder, for example, may say that she is visiting her US citizen fiancé for a few months. If after further interrogation, this visitor admits that she is planning to have a wedding with her US citizen fiancé in the US, she will be denied admission. She will be told to obtain a fiancé visa. The visitor visa is not the appropriate visa for entering based on her intentions.
Returning Residents
While most B1/B2 visa holders are closely scrutinized on their intentions, the green card holders or permanent residents may also be asked detailed questions. If it is determined that green cardholders stayed outside the US for many months and are returning to the US to stay only for a short period, there is a strong probability that they will be put in secondary inspection where the immigration officer will determine whether there is already an intent to abandon their green cards.
Once a green card holder’s record shows that there are more months or years spent in the Philippines than in the US, there may be a finding of abandonment. When there is “abandonment”, the green card holder will be given the choice to give up his green card or fight his case before the immigration judge. The good news for green card holders, however, is that there is no expedited removal or “A-to-A” process. The greencard holders have a right to a hearing unlike the nonimmigrant visa holders.
Lately, green card holders who have had criminal cases in the past (even if it has already been dismissed or sentences have been served) may also encounter some problems at the ports of entry. It is always advisable to be carrying court records indicating resolution of their criminal cases especially if there is no conviction. This will assist the CBP officer in determining whether the green card holder may or may not be subject to removal before the immigration judge.
The fact that a traveler is in possession of a valid visitors visa, a nonimmigrant visa, or even a green card, is not a guarantee that there will be no problem at the US port of entry. Prior immigration violations, unlawful presence, extended stays or very old criminal convictions may still pose problems at the ports of entry.
Most of the port of entry cases may be avoided by proper planning and by understanding the consequences of one’s past actions. Stating accurate intentions instead of misguided intentions is also crucial. Carefree traveling is now a thing of the past. Taking proactive steps to avoid problems and expedited removal is key to a smooth and well-deserved vacation.
(Tancinco may be reached at law@tancinco.com or at 887 7177)
