Getting to the United States may involve more than just buying a plane ticket with an itinerary bound for a US destination. The United States requires that most individuals from around the world apply for and obtain a visa at a US Embassy in their home country prior to entry. If an individual comes to the United States without the required travel documentation, then s/he may be immediately placed in secondary inspection where s/he will be interrogated for anywhere from one to several hours. The US Immigration and Customs Enforcement (US ICE) Officer is there to determine the purpose of travel and, in some instances, whether the entrant has a credible fear of returning to his or her country of departure/origin.

The type of individual that comes without a valid travel visa or entry permit is designated an “arriving alien” and will be placed in removal (deportation) proceedings upon entry. Some of these arriving aliens may be removed immediately, meaning turned around at the airport, depending on the discretion of the officer. Most, however, will be given due process and allowed to see an Immigration Judge to explain their case in full detail. The most frequent types of entrants that see Immigration Judges are those who an ICE officer has determined may have a legitimate fear of returning to his or her country of origin. That is, the entrant may request asylum: political, religious, gender based, or racial and ethnically based asylum. To apply for asylum, an applicant must demonstrate that s/he has been harmed in his or her country of origin by individuals who the government cannot control or are members of the government. The purpose of motive of the harm must be because of the individual’s race or ethnicity, religion, national origin, gender, or membership in a narrow social group. The purpose or motive must be clear and is the most important part of the asylum case. Once a credible fear has been determined, then the individual will be referred to an Immigration Judge who will hear the case in its entirety upon submission of a written application for asylum detailing events in a coherent chronology of events. For those individuals not asking or qualifying for asylum, the individual will be placed in removal proceedings and may have other options available, or if no relief is available, then s/he may at the point of entry (in the sea/airport) withdraw the admission and return immediately to the country of origin, which means to leave the same day s/he arrived.

Most individuals, however, will have a valid travel document or visa. A visa is obtained by making a written application, usually by submitting Form DS 156, Application for Non-Immigrant Visa, at the local US Embassy in the country of origin. The most commonly requested visa is the B-1/B-2 Tourist Visa. This visa will allow the recipient to travel to the US for up to six (6) months at a time, if the stated purpose of travel is for pleasure, or up to one (1) month at a time, if the stated purpose of travel is for business. Obtaining this visa may be easy for some and difficult for others. Usually, the consular officer will try to determine whether the applicant will likely abuse the visa and overstay or if the individual will return to his or her country of origin in a timely manner. The consular officer may determine these outcomes by using his discretion and by requesting information from the applicant such as documentation that they are returning to a home or house they own, a job, or to reunite with other close family members. Thus, it is important for the applicant to understand that s/he must convince the officer that they will most likely return to the country or origin and also that s/he will not work while in the United States. The consular officer may request documentation about the applicant’s finances, such as a bank statement or tax returns to determine the self sufficiency of the applicant. A formal letter of invitation from a family member, friend, or sponsoring organization may sometimes help with getting a tourist visa. This process not only includes a letter, but also financial documentation to show that the host will provide room and board or financial support for the payment of medical bills if the need arises while the visa applicant is traveling in the US.

It should be noted that there are some countries that do not require a visa at all. These are called visa waiver countries. They include most of the European Community countries and a few others. These individuals need to only have a valid EC or EU passport and can travel up to three (3) months at a time when entering the US. The disadvantage of being a visa waiver entrant, however, is that the entrant cannot change or extend his or her status, whereas with the B-1/B-2 Tourist Visa you can extend and change status. The visa waiver entrant forfeits due process protections, so that if they overstay they will most likely be returned to their country of origin without an opportunity to see an Immigration Judge. The only exceptions to a visa waiver entrant overstay is if the entrant is the spouse, parent or minor child of a US citizen. These immediate relatives may be eligible to change status provided that the US citizen submits the appropriate paperwork to legalize the entrant’s status as soon as possible.

All other types of non-immigrant visas are determined by the purpose of the trip to the U.S. and are obtained the same way that the Tourist visa is obtained. All other conditions must be met in addition to satisfying the discretion of the consular officer who has power to deny or grant the visa. Consular post concerns are not only for security, but that the applicant will use the visa in the manner for which it was intended, so that abuse will not occur.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to [email protected]

Please visit her website at: www.nadinebrownpa.com