During the month of December, the airfare rates peak for travel between the Philippines and the U.S. This is a result of the increased volume of travelers during the Christmas season as more balikbayans come home to spend the holidays here. Christmas time is also the season when airports in the United States are busy inspecting thousands of holiday travelers.
For those traveling with temporary or permanent visas, it is important to avoid the hassle of being held at the airport during the inspection process. No one wants to be stranded at the airport during the Christmas holidays, neither would the experience of a detour back to the country of origin be a good experience. Understanding the nature and limitations of one’s visa will be the key to a safe travel and avoiding extensive interrogation and expedited removals.
The Inspection Process
All those entering the United States will go through an “inspection” process where the traveler will be asked to determine whether there is a reason to deny entry. The reasons for denial of entry are referred to as “inadmissibility” grounds. One must have a valid travel document or a passport and visa to be able to enter. The U.S. citizens or dual citizens need only show their valid U.S. passports. For non-U.S. citizens, they need to have a resident/green card or a valid nonimmigrant visa.
If during the primary inspection the traveler is clear with his intent and carries valid travel documents, he will be allowed to enter without any further inquiries. But if one has grounds for removal because of certain inadmissibility issues, the traveler will be referred to a “secondary” inspection. During the secondary inspection, the Custom and Border Protection (CBP) officer will interrogate the traveler more closely to determine whether he is going to be sent back to his country of origin on an expedited removal, i.e., an “airport-to-airport.” There is also a possibility of detention if the traveler has an outstanding warrant of arrest or is clearly within the class of immigrants subject to mandatory detention.
One who is referred to the secondary inspection will experience substantial delay at the airport. The CBP officer at this stage exercises the power given by law: which is to “conduct search, without warrant of the person and the personal effects in his possession”. Electronic devices such as laptops, cameras, tablets and cell phones may be searched within limits if there is reasonable ground to suspect that a ground for inadmissibility exists.
The travelers who are subjected to secondary inspection are not allowed to be represented by attorneys unless they become target of a criminal investigation. If the traveler is allowed to enter the United States but is being put in deferred inspection, then an attorney may be allowed to be present during the subsequent interrogation.
Green Card Holders
For permanent residents or green card holders who are spending more time in the Philippines than staying and working in the United States, the CBP inspector may inquire on their actual place of residence. CBP may be inquiring not so much on the length of time spent abroad but on where the person lives. There is no hard and fast rule in determining abandonment of status. The totality of circumstances will be taken into account: (1) total length of time in the United States since receiving the green card; (2) place of residence of family members and whether they live in the United States; (3) whether the green card holder is paying taxes in the United States; (4) lack of a fixed address in the United States coupled with prolonged absences and (5) lack of employment in the United States. It is important for the green card holder to have in his possession proof of his actual “domicile” and other documents proving his ties to the United States whenever he travels.
Non-Immigrant or Temporary Visas
Those in possession of temporary visas are more vulnerable to extensive interrogation if there is suspicion of their actual intent. The common ground for denial of entry for a visitor visa holder is “dual intent” or intending immigrant. During the course of inspection the visitor visa holder should be able to express his clear intent of staying in the United States only for a temporary reason. If there is any indication of an intention to stay permanently, there is a strong likelihood for denial of entry. Other grounds for inadmissibility include: Health issues, criminal convictions, security risks, fraud and misrepresentation in obtaining the visas. Those who were previously removed/deported and are re-entering before the time bar is completed may be denied entry too.
To be placed in a secondary or deferred inspection is not per se an indication of an immigration violation. In fact, those traveling with valid “advance parole” documents all go through secondary inspection for purposes of verifying data in regards to the underlying petition. Others are put in secondary inspection if there is a need to verify some information about a possible ground for inadmissibility. But if one is aware of any probable reason for the denial of entry because of any of the grounds of inadmissibility, it may be best to be prepared for the inspection by carrying all documents necessary to prove eligibility for entry and non-abandonment of status. The risk of being denied admission is avoidable.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
