Heavier international travel is anticipated over the coming holiday season. To help nonimmigrant visa holders and U.S. permanent residents navigate this busy period, Tarter Krinsky & Drogin  is e sharing our updated guidance.

Key Takeaways from Our Immigration Team

For many foreign nationals, returning to the United States after spending time abroad has become increasingly challenging.  With heightened consular scrutiny, expanded border screening, and strict documentation requirements, trips abroad need advance planning.

Travelers should review documents, travel history, and timing with counsel before purchasing tickets to prevent potentially weeks of disruption in the new year.

How Can Travelers Prepare?

Because foreign nationals are facing greater scrutiny at U.S. consular posts and border entry points, we recommend that anyone planning a  trip this holiday season who needs a new visa to return to the United States book a visa appointment early.

Importantly: anyone who has ever had contact or interaction with law enforcement in any country should speak with immigration counsel before leaving the United States, to help ensure a smooth return.

Documentation Requirements for Nonimmigrants

A passport should remain valid for the full period of intended stay in the United States so that admission can be granted for the entire period requested. Even when a traveler presents a nonimmigrant petition approval notice from U.S. Citizenship and Immigration Services (USCIS) that extends beyond the passport's expiration date, U.S. Customs and Border Protection (CBP) officers at all U.S. ports of entry will most likely limit admission to the passport expiration date, which may be earlier.

Travelers should also confirm their visa validity dates before departing the United States to ensure a safe return. The visa stamp must be unexpired and, if the number of entries is limited, at least one entry must remain. Canadian citizens are generally not required to hold a valid visa to reenter the United States, except for E-1 Treaty Traders and E-2 Treaty Investors. Canadians seeking entry in E status must present a valid E-1 or E-2 visa stamp in a valid Canadian passport to be assured of return for a full two-year period of stay.

General Guidance for Visa Applicants

The Trump administration no longer allows third-country nationals to apply for visas anywhere other than their home country or country of permanent residence. In addition, U.S. consular posts will no longer waive in-person appearances for certain applicants, replacing earlier State Department rules that exempted children under 14 and adults over 79.

For B-1 and B-2 visa applicants  traveling to the U.S. for business, vacation, or family visits should expect closer scrutiny, possible delays in security clearances, and a requirement to make all social media accounts public before appearing for an in-person interview. The maximum period that a B-1 or B-2 visa holder will be permitted to remain in the U.S. is six months, although CBP officers have the discretion to limit entries to lesser periods of time.

Applicants who secure a visa appointment during the holiday period should allow for security delays and consider purchasing flexible return tickets. Individuals with prior arrests, even without convictions, are advised to consult immigration counsel beforehand to avoid visa revocation or being denied boarding on a return flight. Over the past year, foreign nationals with any arrest history may have been flagged and refused boarding, or had their visas cancelled, even when waivers or disclosures had previously been made to U.S. consular officials.

Enhanced Security Screening Upon Return to the United States

On return to the United States, CBP will use its Biometric Data Collection System to process fingerprints and photos and to check scanned travel documents against U.S. national security and police databases. All foreign national passport holders may be questioned about their immigration status, the purpose of their visit, their background and history, and related matters. CBP also has the authority to search electronic devices, and it may confiscate them, download their contents, and return them to the owner later. In general, travelers are not entitled to counsel at a U.S. port of entry. Once the inspection is complete, it is best to contact immigration counsel to discuss the nature of the questioning and any effect on the ability to return to the U.S. in the future.

The Importance of the I-94 Arrival Record

After each entry to the United States, it is strongly recommended for all nonimmigrant visitors and nonimmigrant work visa holders to download the I94 form after arrival in the United States. While visas or the ESTA program permit entries to the United States, the I94 entry document governs one’s legal stay in the country. Errors on the I94 forms should be addressed as soon as possible so that there are no misunderstandings with U.S. immigration agencies in the future regarding overlooked mistakes. The CBP website concerning I94 retrieval and recording of U.S. entries and exits may be found here: I-94/I-95 Website - Official Site for Travelers Visiting the United States.

Returning U.S. Permanent Residents

For U.S. permanent residents who permanently and continuously reside in the United States with strong ties to the country, including jobs, property ownership and family connections, a brief visit abroad in general, and for period of up to six months will not raise any question about their intent to return to the United States and resume one’s life in the country.

For U.S. permanent residents who have been absent from the U.S. for a year or more, the presumption is that one has abandoned their residence and could be challenged upon return to appear in proceedings before an administrative judge to evidence that they intend to retain residence and reside permanently in the United States.

For those permanent residents who have been absent from the United States for six months or more continuously, and for less than a year, CBP may presume they don’t wish to retain U.S. permanent residence, and they could be challenged regarding their ability to retain their green cards. 

If one does have plans for an overseas assignment that might last longer than a year, or for several years, best to contact counsel and assess whether a reentry permit filing is an advisable step to take in advance of any planned departure. Reentry permit processing will protect the individual’s residence status while abroad, and assure they can resume their status upon return from temporary assignments, schooling or for other personal reasons that might necessitate a temporary absence from the United States.

FOR MORE INFORMATION:
The Business & Corporate Immigration practice at Tarter Krinsky & Drogin will continue to follow this update closely. If you have any questions or would like to discuss, please reach out to a member of our team.