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WHAT DOES IT MEAN TO BE ADMITTED TO THE UNITED STATES? The United States immigration process consists of a series of interrelated, separate steps. To be in the United States legally, most foreign nationals focus on qualifying for non-immigration status or qualifying for permanent resident status. What is often overlooked is the application for admission to the United States, which is a legal procedure that occurs when a foreign national crosses the border to enter the United States.1 In a digital age, requirements for admission to the United States continue to change. More importantly, expanding technological capabilities greatly enhance the U.S. Government’s ability to monitor and track foreign nationals entering the United States. The stakes for successfully navigating the admissions process are high since a foreign national can be either delayed unduly at the port of entry or denied admission altogether, which then becomes part of a foreign national’s permanent immigration record. This piece explores the application for admission a foreign national makes when trying to enter the United States: what admission means, who is involved in the admissions process, the Custom and Border Patrol’s (CBP) considerations when reviewing the application for admission, a foreign nationals rights during this process, grounds of inadmissibility, what documents a foreign national must present to be admitted to the United States, and the registration steps a foreign national must undertake either before being admitted to the United States or upon departure from the United States. This piece does not address the admission that occurs when a foreign national adjusts to permanent resident status. At the end of this piece we present our thoughts on how to maximize the chances that admission to the United States will go smoothly and successfully. I. WHAT IS ADMISSION TO THE UNITED STATES? Every person entering the United States, except U.S. citizens, must make a formal application for admission.2 Most frequently, the admission application is the inspections and entry process at the port of entry every time a foreign national – either an immigrant or non-immigrant – enters the United States. When admitting a foreign national to the United States, a CBP officer makes determinations: 1) whether the foreign national’s purpose for entering the United States matches the visa classification; and 2) if there are any problems related to the foreign national’s character or background that disqualifies him from entering the United States. Since 1996, our immigration laws have distinguished between entry into the United States and admission to the United States.3 Admission to the United States is more than mere entry into the United States (i.e., physical presence in this country); rather, admission gives a foreign national, after inspection by the U.S. CBP Officer, the legal right to enter the United States and remain eligible for future immigration benefits.4 II. WHAT U.S. GOVERNMENT AGENCIES ARE INVOLVED IN THE ADMISSIONS PROCESS? There are two federal agencies involved in the admissions process: The U.S. Department of State (DOS) and the U.S. Customs and Border Protection (CBP). The DOS is the government agency responsible for issuing visas5 through U.S. Consulates abroad. The CBP, an agency of the U.S. Department of Homeland Security (DHS), is the agency responsible for determining whether the purpose of the foreign national’s specific trip corresponds to the general authorization embedded in the visa. The CBP determines whether the foreign national fulfills all legal requirements to be admitted to the United States.6 III. WHEN DOES THE APPLICATION FOR ADMISSION BEGIN? The admissions process starts when a CBP Officer inspects a foreign national at a U.S. port of entry. The purpose of this inspection is twofold: 1) to determine if the foreign national’s trip corresponds with his visa; and 2) to determine if there are any grounds that make the foreign national inadmissible – i.e., not allowed entry to the United States. If a nonimmigrant passes inspection, the CBP Officer admits him to the United States and denotes the appropriate duration of stay on the I-94 card.7 A foreign national who is admitted to the United States remains eligible for future immigration benefits. Conversely, a foreign national who enters the United States without inspection by a CBP Officer has not been properly admitted and is thereby subject to detention, removal, and possible bars from entering the United States in the future. IV. WHAT ARE CBP’S OPTIONS IN DECIDING WHETHER TO ADMIT A FOREIGN NATIONAL? A CBP Officer has the following options when adjudicating a foreign national’s application for admission: Determine that all requirements for admission have been satisfied and admit the foreign applicant to the United States;
At the time of admission, the foreign national bears the burden of convincing the CBP Officer that he “clearly and beyond a doubt” qualifies for admission into the United States.11 Moreover, a foreign national does not have the right to an attorney during the admissions process. If the foreign national encounters problems during the admissions process, his only recourse is to request to speak with a supervisor whose primary purpose is to assist travelers.12 If a foreign national is placed in a removal hearing, he has “the privilege of being represented” by an attorney at his own expense.13 So although a foreign national may have an attorney present in a removal hearing, the U.S. government will not pay for these legal services. In certain instances, if a foreign national has a valid visa but was denied admission, a foreign national can request a hearing before the immigration Court. However, determinations made for visa waiver applications are final, as are determinations made on cases involving fraud, willful misrepresentation, and the lack of a valid immigrant visa for an intending immigrant. VI. CONCEPT OF “GROUNDS OF INADMISSIBILITY.” Perhaps the most confusing yet important determination made during the admissions process is whether the foreign national is “admissible” to the United States. Even if the intended purpose of his trip corresponds with the terms of his visa, the foreign national may still be denied admission if there is some abnormality that disqualifies him from entering the United States. Although the list of grounds for inadmissibility may vary depending on the type of visa status sought, the following is a list of the most common grounds: Health-related grounds: this generally relates to contagious
diseases such as tuberculosis, AIDS/HIV, etc.14 VII. NON-IMMIGRANT ADMISSIONS. U.S. immigration laws presume that all non-immigrants have immigrant intent, or the intent to remain permanently in the United States.23 Yet most non-immigrant categories require that the foreign national intend to stay temporarily in the United States and that following this temporary stay, will depart the United States.24 As such, the burden is on the foreign national to convince both the Consular Officer (at the time of application for a visa) and the CBP Officer (at the time of application for admission at a port of entry) that he does not intend to stay in the United States permanently. If the foreign national fails to convince the Consular Officer and / or the CBP Officer that he intends to remain in the United States on a temporary basis, it is grounds to deny the visa and / or deny admission to the United States. VIII. WHAT DOCUMENTS MUST A FOREIGN NATIONAL PRESENT FOR ADMISSION TO THE UNITED STATES? A foreign national must present several documents when applying for admission to the United States. Most frequently, these documents include a valid passport, a visa, and an I-94 Card. PASSPORT Periodically the U.S. Department of State publishes a table of Foreign Passports Recognized for Extended Validity.29 If the passport is valid at the time of presentation, the United States considers the passports of nationals from these listed countries automatically valid for six months beyond the actual expiration date.30 In the past, citizens of the United States, the Caribbean, Bermuda, Panama, Mexico and Canada traveling between these countries were not required to present a passport to be admitted to the United States. However, the United States Department of State recently implemented the Western Hemisphere Travel Initiative (WHTI) which changes long-standing travel requirements for travelers seeking admission to the United States from the Americas, the Caribbean, and Bermuda. Starting January 23, 2007, citizen travelers from the Caribbean, Bermuda, Panama, Mexico and Canada seeking entry into the United States via air or sea must produce a passport to be admitted to the United States.31 Even U.S. citizens must present valid passports when returning from trips abroad.32 On January 1, 2008, this passport requirement extends to all entries via land.33 VISA To obtain a visa, a foreign national must make an appointment at a U.S. Consulate abroad. Each Consulate follows unique visa issuance procedures. Generally these procedures require a foreign national to appear for an interview, give fingerprints, take a digital photo, and pay a fee. A foreign national should check the U.S. Department of State website to obtain details on a specific Consulate’s procedures.35 VISA EXEMPTIONS A foreign national who has an expired visa stamp in a valid passport may be able to travel to a “contiguous territory” for 30 days or less and return to the United States without first obtaining a new visa prior to re-entry. To re-enter the United States, the foreign national must present a valid passport, I-94 card, and expired visa.40 Nationals of Iran, Syria, Libya, Sudan, North Korea, or Cuba are ineligible for this benefit and must obtain a valid visa before applying for admission to the United States. This benefit becomes void if, while outside of the United States, the foreign national applied for a visa but was denied.41 I-94 CARD For air and sea entry, the I-94 card is for single entry.42 For land entrants, the I-94 card is valid for multiple entries.43 The I-94 card is significant in that it is the foreign nationals proof of legal eligibility to remain in the United States. A foreign national should retain a copy of all I-94 cards issued to him. IX. HOW DO I KNOW IF I HAVE BEEN LAWFULLY ADMITTED? For non-immigrants, if the CBP Officer is convinced, after inspection, of the legitimate nature of the application for admission, the CBP Officer will notate the appropriate immigration status on the I-94 card, along with the duration of stay granted to the foreign national. The CBP Officer will staple the I-94 card in the foreign nationals passport. It is important that the immigration status and period of stay noted on the I-94 match the data on the corresponding visa because the I-94 card becomes the foreign nationals proof of legal eligibility to remain in the United States (i.e., it shows that a foreign national was properly admitted to the United States). Every lawful permanent resident (LPR) must be admitted into the United States. If the CBP Officer is convinced, after inspection, that a LPR is admissible, he will be admitted into the United States. If the CBP Officer deems a LPR is inadmissible, the CBP Officer will defer a LPR to secondary inspection or parole the LPR into the United States for a deferred inspection hearing. X. REGISTRATION REQUIREMENTS FOR ADMISSION TO AND EXIT FROM THE UNITED STATES. US-VISIT US-VISIT begins when a foreign national applies for a visa at a United States Consular Office abroad. Before receiving a visa, a foreign national provides biometric information, including two digital finger scans and a digital photograph. This information is embedded in the visa so that when the foreign national applies for admission at a United States port of entry, new biometric information is collected and matched with the biometric information embedded in the visa. This allows the CBP Officer at the port of entry to confirm the person applying for admission is the same person who applied for the visa. US-VISIT recently implemented a pilot program for taking biometrics information at ports of exit. Currently, twelve airports have US-VISIT exit kiosks.46 These US-VISIT exit kiosks scan a foreign nationals passport, take a finger scan of the left and right index fingers, take a digital photograph, and issue a receipt confirmation for a foreign national to present to the airline before boarding. Ultimately the Department of Homeland Security will implement this US-VISIT exit procedure at all airports. If a foreign national is flying out of the United States from one of the US-VISIT exit airports, he should register at the US-VISIT kiosk. Although the DHS has stated that the US-VISIT exit program is voluntary, on a practical level, failure to register prevents DHS from confirming whether and when a foreign national left the United States. DHS might then assume that a foreign national never left or overstayed the terms of her immigrant status. Thus, if a foreign national is departing the United States from one of the pilot airports with US-VISIT exit kiosks, he should find the US-VISIT Kiosk and register. If a foreign national is unable to register, he should retain as much supporting documentation as possible to present at re-entry to document when and where he left the United States. Failure to register may result in a violation of the terms of admission or ineligibility to obtain a visa in the future.47 Currently the following categories of foreign national visitors are exempt from US-VISIT48 : Visitors admitted on an A-1, A-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 visa; National Security Entry / Exit System (NSEERS) XI. HELPFUL TIPS FOR THE ADMISSION PROCESS Each year, thousands of foreign applicants are turned away at the border of the United States and countless more are delayed unduly during the admissions process. The following are tips to make the admissions process go smoothly and quickly: Understand The Immigration Status You Are Requesting. Each non-immigrant visa authorizes specific activities in the United States, such as specific work authorization, student status, casual visits, etc. Understand the type of visa you possess and make sure that you can prove that your specific reason for coming to the United States matches the visa or authorization presented to the CBP Officer. XII. CONCLUSION Lawful admission to the United States is an important, and somewhat complex step in every foreign national’s travel to the United States. Because a foreign national does not have legal counsel present at the time of admission, it is always prudent to check with immigration counsel well in advance of leaving the United States to ensure full compliance with admissions requirements upon entry. * Sarah K. Peterson Stensrud is an Associate Attorney with Aronson & Associates, P.A., dealing largely in employment-based immigration. She holds her J.D. Cum Laude from the University of Minnesota Law School and is finishing a Master in Public Policy from the Hubert H. Humphrey Institute of Public Affairs. Robert D. Aronson is the Principal Attorney at Aronson & Associates, P.A., practicing in the area of employment-based immigration with a focus on International Physicians, biomedical researchers, and healthcare workers. Mr. Aronson is a graduate of the Indiana University School of Law, Cum Laude, and was a Fulbright Fellow at the law schools of Harvard University and Moscow State University. The information in this article is of a general nature and is provided as a courtesy. It should not be relied on as legal advice for specific cases. Receiving or reading this article does not create an attorney-client relationship between the reader(s) and Aronson & Associates, P.A. or between the authors and foreign national. As the information herein presented should make amply clear, sound immigration advice can only be provided after careful review of a potential client’s facts and the creation of a formal attorney-client relationship. Copyright © by the authors. All rights reserved. 1. A foreign
national is also formally admitted to the United States when the
USCIS approves an application for permanent resident status for
the foreign national. Matter of Rosas, 22 I&N Dec. 616 (BIA
1999). |
Aronson & Associates, P.A. |