Nonimmigrant Entry into the United States - Module 2 of 5

Nonimmigrant Entry into the United States

Nonimmigrant Status

In Module 1, we examined the origins of immigration law, the effects of immigration on different societies, the sources of United States immigration laws and Supreme Court cases that have shaped those laws. Today, U.S. immigration law can be divided into two general areas: immigrant laws and visas and their nonimmigrant counterparts. In this module, we will take a closer look at laws governing those with nonimmigrant status.

Although the United States takes in more than a million new legal permanent immigrants annually, not everyone who comes to the U. S. does so with the intent to stay. In many cases, nonimmigrant visas are the mechanism through which the federal government screens applicants for such temporary visits. These visas also establish how long the visitor may stay until the authorized duration expires, at which time the visa must be renewed, or the visitor must depart from the country.

According to U.S. Citizenship and Immigration Service, a nonimmigrant is someone “… who seeks temporary entry into the United States for a specific purpose.”[1]  Purposes may include status as a foreign government official or working for a foreign information media source, tourism, attending school as an exchange student, engaging in business, participating in trader or investor activities, serving as officials of NATO or the United Nations, temporary workers and people transferring from a foreign branch of a company to a U.S. branch of the same company. 

USCIS guidance for nonimmigrants includes:

·         The prospective visitor should have a permanent residence outside of the United States, with no plans to abandon it;

·         The visit must be covered by an existing nonimmigrant visa type; and

·         The visitor must be eligible for the visa she is seeking.  

In many cases, a nonimmigrant visa holder can also bring along a spouse and children, provided they are of minor age and unmarried, though recently added criteria have made this harder to achieve.[2]

Depending on their nationalities, foreigners seeking to come to the United States temporarily will first need to obtain an appropriate visa or be from a country that has a relationship with the United States allowing for nonimmigrant entry without a visa.

The Visa Waiver Program

In 1986, the United States created the Visa Waiver Program,[3] which allows reciprocal visa waivers with a select 38 countries.[4] As long as they meet the requirements of the program, citizens of these countries do not need to obtain nonimmigrant visas to visit the United States (and vice versa). The reasons for establishing the Visa Waiver Program include reducing administrative burdens inherent in applying for and processing visa applications and fostering economic activity. According to the U.S. Department of Commerce, travelers to the United States under the program spend more than $80 billion here annually.

The first requirement for a foreign national to take advantage of the Visa Waiver Program is to be a passport-holding citizen of a participating country. The passport must be an electronically scannable “e-passport” and must be valid for six months after the anticipated departure date from the United States, unless the holder is from a country in the “six-month club,” in which case the passport need only be valid during the intended stay period. [5]

The second requirement is that the traveler must not already have a current U.S. nonimmigrant visa.   

The third requirement is for the applicant to intend to come to the U.S. for business or pleasure (which ordinarily requires a “B” Visa) for a no more than 90 days. No other activities that would be suitable for non-B Visas- such as participating in a formal program of study or to apply for work- are permitted under the Visa Waiver Program.

If these prerequisites are met, the next step is to obtain authorization to enter the U.S. through the Electronic System for Travel Authorization system.[6] This system is not a visa, but rather an automated mechanism to perform background checks to screen for people who pose potential law enforcement or security risks. To be eligible for Electronic System for Travel Authorization status, the foreign traveler must not, since March of 2011, have traveled to certain “countries of concern” (as of 2019, Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) or be a dual national with Iraqi, Iranian, Sudanese or Syrian citizenship.[7]   

Once approved, Electronic System for Travel Authorization status is valid for two years unless something changes, such as the applicant’s receiving a new passport, changing personal information, changing citizenship or having to change any of the responses given in the original application. The foreign person can re-use the system multiple times during its two-year validity, but only for 90 days at a time. These 90-day periods cannot run back-to-back, as there must be some interval in between them to avoid the appearance that the applicant is living in the United States.

Aside from the Visa Waiver Program, two other limited options exist to enter the United States without first obtaining a visa:

·         Canadian and Mexican professional workers under the North American Free Trade Agreement can enter the U.S. under a “TN Visa” if their profession is one recognized under NAFTA (that is, it is on the “NAFTA List”[8]), they are going to work for a U.S. employer and the position requires a person in that professional capacity, Canadians do not usually require a TN visa to serve as professional workers under NAFTA, although they can apply if they choose to do so. Mexican professional workers still require visas to enter the U.S. under NAFTA, but the TN visa does not require a petition and conditions of labor that are normally required in the visa process.[9]

·         Citizens of Canada and Bermuda who are not otherwise ineligible to enter the United States under American immigration law are exempt from many nonimmigrant visa categories.[10] Canadian citizens only need nonimmigrant visas for A, E, G, K and S visa purposes. Citizens of Bermuda only require nonimmigrant visas for A, G, K and S visas, or if they plan on staying in the country for more than 180 days

Obtaining and Using Visas

The State Department’s Foreign Affairs Manual[11] contains a listing of 84 nonimmigrant visas. A system of alphanumeric codes or “symbols” categorizes the visas by class of visitor, with specific visa types under each class. The symbol begins with a letter for the class, with additional numbers and letters to further describe types of visas available for the class. For example, a nurse who works in an area in which the United States has a shortage would apply for an H1C visa: “H” is the class for specialized foreign workers, and “1C” further defines the class for nurses in shortage areas.

Most nonimmigrant visa classes include subclasses for immediate family members (spouses and children) of the visa applicant. These are known as “derivative classification” visas, because the family member’s visa eligibility derives from the type of visa the initial applicant is seeking. Spouses are not restricted to derivative visas; if they qualify, they can seek entry based on other classes of visas. An example would be the spouse of someone applying for a student visa who wants to be able to lawfully work in the United States. Because employment is not authorized for student visa holders, and derivative visa status would also prohibit the spouse from working, if eligible, the spouse might consider applying separately for an H-class visa, or even an immigrant visa.

The basic visa classes include:

·         A: Foreign government officials. Ambassadors, public ministers, diplomats, consular officers and family members, including their employees.

·         B: Temporary visitors for business or pleasure (not eligible for derivative spouse visas).

·         C: Foreign government officials and people connected with them while in transit in the United States, and others passing through the country (this class is not eligible for derivative spouse visas).

·         D: Crewmembers of marine vessels and aircraft (also not eligible for derivative spouse visas).

·         E: Treaty traders.

·         F: Students in academic and language training programs and family members.

·         G: Diplomatic personnel and members of international organizations.

·         H: Specialized workers.

·         I: Foreign informational media representatives.

·         J: Exchange visitors.

·         K: Fiancées of U.S. citizens (not eligible for derivative spouse visas).

·         L: Intracompany transferees in executive, managerial or specialized positions.

·         M: Vocational students.

·         NATO: NATO officials.

·         O: People with extraordinary scientific, artistic, educational, or athletic abilities.

·         P: Artists and entertainers in exchange programs.

·         Q: International cultural exchange program participants.

·         R: Religious occupations.

·         S: Informants in connection with criminal organizations and terrorism.

·         T: Victims of severe forms of human trafficking.

·         U: Crime victims.

·         V: Spouses and children of permanent residents, who are waiting for immigrant visas (also not eligible for derivative spouse visas).

The standard procedure to get a nonimmigrant visa to enter the United States begins with knowing which type of visa to apply for.  The visa application – form DS-160 – can be completed online.[12] A proper photo of the applicant must be uploaded with the completed DS-160, along with the payment of an application fee.[13]  

For applicants aged 14 to 79, scheduling an interview with a U.S. Consular officer at a United States Embassy or Consulate is typically required; but although applicants younger than 14 or older than 79 do not usually need to submit to an interview, anyone of any age can be subjected to the interview requirement at the discretion of the immigration officials working the case. Documents must be brought to the interview, including a valid passport, a printed confirmation page for the DS-160 application, and receipt of payment of the application fee. Additional documentation, such as a print-out of the application photo or evidence of the visit’s purpose and the applicant’s ability to pay for her expenses while in the U.S. may also be required. Fingerprints of the applicant will ordinarily be taken at the time of the interview appointment.[14]

Entering and Staying in the United States

If the visa application and interview of the prospective traveler determine that he is authorized to enter the country, he will be issued a visa. The visa must be presented with a passport to a Customs and Border Protection official at a port of entry (such as an airport or border crossing). Note that having a visa does not entitle the holder to enter the United States; Customs and Border Protection officials make the final determination at the point of entry and are empowered to deny people entry even if they hold valid visas and passports. A traveler permitted entry will receive either an admission stamp in her passport or a Form I-94 (Arrival and Departure Record).

The Department of Homeland Security maintains programs to facilitate visa-based travel into the United States. The collective term for these programs is “trusted traveler programs.”[15] Four specific trusted traveler programs are:

·         Global Entry: For foreign visitors who are pre-approved as low-risk travelers, the Customs and Border Protection’s kiosk-based Global Entry program[16] allows for expedited processing at select ports of entry.[17] “Low risk” means that the traveler has not been convicted of crimes and is not the subject of criminal charges, in violation of any U.S. or other country’s immigration regulations or other federal, state and local laws.[18]

·         NEXUS. This is a joint U.S.-Canadian program for travelers entering the U.S. and Canada. It authorizes participants (who must be approved by both American and Canadian authorities) to use expedited processing at ports of entry. Members of Mexico’s program for trusted travelers, Viajero Confiable, are also eligible for NEXUS.[19]

·         SENTRI. The Secure Electronic Network for Travelers Rapid Inspection program enables participants to use expedited processing lanes at land border crossings between the United States and Mexico.[20]

·         FAST. The Free and Secure Trade program is a trusted traveler program for commercial carrier truck drivers who enter the United States from Canada and Mexico. It uses dedicated vehicle lanes to speed up processing of cargoes at select ports of entry.[21]

Although nonimmigrant visas carry expiration dates, that does not necessarily fix the time the traveler may remain in the United States. At the time of a traveler’s entry into the United States, a Customs and Border Protection officer will decide how long she can remain in the country and will provide either an “admitted until” date or a duration of status.[22] Depending on the visa, entry can be permitted on a one-time only basis, or for multiple entries.

Visitors who are in the United States can extend their stays by applying to the USCIS using form I-539. Approval of any extension of stay must be received before the expiration of the original duration of stay and is subject to the visitor not having committed any crimes in the U.S. that would make that a person ineligible for a visa or otherwise constitute a violation of conditions of admission. Not all nonimmigrant visas are eligible for extension. Specifically, C, D, K and S visas do not qualify for extensions of stay. Those who enter the United States under the Visa Waiver Program and those who are transiting through the country without a visa are also ineligible to apply for duration extensions.[23]

Visa Overstays and Illegal Entry

A common misperception about illegal migration into the United States is that it is largely the result of people crossing the border without inspection, particularly the southern border with Mexico. In fact, however, people who overstay their nonimmigrant visas account for a significant number of those who are in the U.S. in violation of its immigration laws. 

According to the Department of Homeland Security, in fiscal year 2017, about 700,000 people who entered the United States with nonimmigrant visas remained in the country past their validity dates.[24]  DHS estimated that overall about 1.3 percent of nonimmigrant visa holders overstayed their visas, although the percentage ranges from only 0.5 percent of overstays among Visa Waiver Program participants up to 4.1 percent of student visa holders overstaying.

U.S. immigration law treats those who enter the country without inspection and those who enter legally but do something to violate their conditions of entry or overstay their visas as “deportable” aliens.[25] In addition to being subject to apprehension, possible detention and removal from the country, depending on the duration of a person’s overstay, the traveler is subject to being ineligible to return to the United States. For example, people who stay unlawfully for more than 180 days but less than one year, and who left the country voluntarily, are ineligible to return for three years.[26] Those who were illegally present for more than one year are ineligible to return for 10 years.[27]

Those who have been removed from the U.S. and then reenter the country illegally or attempt to do so are subject to fines and imprisonment of up to two years.[28] If the removal was in connection with convictions for drug-related crimes or crimes against people, the term of imprisonment can be up to 10 years [29]; for those convicted of aggravated felonies, it can be up to 20 years.[30]

Enforcement of these federal removal laws has been sporadic. Some prosecuting attorneys may not see removal enforcement as a high priority unless it relates to gang-related or other serious criminal activity. In other cases, defendants who are not detained do not appear in court on their appointed hearing dates. This can lead to some extreme examples of “revolving door” removals, with the top five people racking up 44, 40, 35, 34 and 31 removals and illegal reentries.[31]

State and local nullification laws related to immigration have also been a source of friction when it comes to enforcement of removal laws. Perhaps the most notorious case of this friction was the 2015 shooting of Kate Steinle at the hands of a Mexican national, Garcia Zarate, who, between 1994 and 2015, illegally reentered the United States five times after repeated removals. Three months prior to the shooting, under its sanctuary law, the City of San Francisco had refused an ICE detainer request on Zarate.[32]

In our next module, we’ll turn to immigrant visas, the counterparts to the non-immigrant visas we’ve just discussed.