As is the case with most countries, foreign nationals are generally required to have a passport valid for six months beyond the period of their intended stay to be admitted to the United States.
Foreign nationals planning to stay for more than 90 days generally also need to have a valid visa. Visa requirements can be waived under the Visa Waiver Program (VWP) if the foreign national is a citizen of an eligible country or are lawful permanent residents of the United States or Canada. Click here for more information about the VWP.
As noted in our 2018 alert, Foreign Nationals in the United States - What Documents Should I Carry with Me?, there is a requirement under Section 262 of the Immigration and Nationality Act (INA) for foreign nationals who are over the age of fourteen and remain in the United States for more than 30 days to apply for registration and be fingerprinted within the first 30 days of their stay. Section 264 of the INA further requires that "[e]very alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him..."
It is rare that foreign nationals are requested to prove registration documents to officials after being admitted into the United States, however it is more likely to occur in border states. Federal regulation provides for a "100-mile border zone" in which U.S. Customs and Border Protection (CBP) has jurisdiction and can operate immigration checkpoints. It is important to note that several states lie nearly entirely, if not completely, within the 100-mile zone, including New York, New Jersey, New Hampshire, Massachusetts, Rhode Island, Delaware, Maine, Vermont, Florida and Hawaii. Although they have broader authority in the 100-mile zone, CBP must still abide by federal law and cannot, for example, search vehicles without a warrant or probable cause, even in the zone.
According to the Code of Federal Regulations (CFR), "a valid, unexpired nonimmigrant [Department of Homeland Security (DHS)] admission or parole stamp in a foreign passport constitutes evidence of registration." (8 CFR § 264.1(b)). For a complete list of acceptable forms of evidence for alien registration, see our 2018 alert.
Additionally, we published an alert on June 12, 2019 about the State Department's inclusion of a new question on visa application forms. On January 17, 2019, the American Civil Liberties Union filed a complaint for injunctive relief against several federal agencies, including Department of Homeland Security, Immigration and Customs Enforcement and Department of State. We will keep our clients updated as we find out more information about these proceedings.
Further, almost all visa applications, except for a select few, will be subject to the new social media information requests. However, the question does not apply to applicants of the Electronic System for Travel Authorization (ESTA) program. Travelers eligible for ESTA are citizens or eligible nationals of VWP countries, traveling for business or pleasure for less than 90 days and are not currently in possession of a visitor's visa.
Foreign nationals should also plan for visa appointment delays at consular posts abroad as summer is the most popular travel season. It is recommended that all foreign national travelers access the CBP web site after arrival in the United States to assure that they have been admitted in the correct legal status. The I-94 admission record shows that an individual was admitted to the United States and the length of time of admission. Further, travelers with applications pending with United States Citizenship and Immigration Services should be sure in advance of any departure whether international travel will risk pending applications.
The bottom-line recommendation for any foreign traveler to the United States, whether entering on the visa waiver program, a visitor visa, work visa or with a pending application for permanent residence is verify all documentation prior to departure to assure a smooth reentry.
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