US Visa: Travel Risks Explained by an Immigration Lawyer in Houston
I’m going to start out by saying something that might surprise you, but it’s true: Having a visa in your passport or clearance through the Visa Waiver ESTA portal does not mean you will be allowed to enter the U.S., It’s hard to believe, but even after a person is approved for a US visa at an Embassy or Consulate, or is cleared by Customs and Border Protection through ESTA, CBP has the authority to refuse entry to a person. Here are some travel risks explained by an immigration lawyer in Houston.
Why would CBP question you or refuse to let you enter if you have a visa or were cleared through ESTA?
There are many reasons. Some examples we have observed in the past few years include:
- You have a visitor visa or have been cleared through Visa Waiver. A CBP officer believes that you intend to stay permanently in the United States because a spouse, child, sibling or other family member who is a U.S. citizen or Permanent Resident is living in the United States.
- You have a work visa, and when you are at the airport, a CBP officer asks you where you work and compares it to the electronic copies of documents previously submitted in order to get your work visa. Some of the information you provide does not match what the officer sees. He believes you are not actually working in the position or location that you and your employer indicated in your visa petition or application.
- A CBP officer looks at your phone, tablet or laptop and sees emails in which you are applying for jobs in the United States. Although you have not actually worked in the United States, the officer believes that this means you will be working in the United States without authorization
- You are pregnant, you have a valid visitor visa, and you do not have proof that you have the means to pay for health care related to childbirth in the United States or you cannot demonstrate that your visit will be only temporary in nature
- A CBP officer sees a record of a previous arrest and needs more information to determine if you are actually eligible to enter the U.S.
- You have a controlled substance (such as marijuana or a prescription drug for which you do not have a prescription) in your belongings.
- You previously entered the U.S. on visa waiver, stayed for almost all of the 90-day period you were allowed to stay, left for a brief period of a few days or weeks, and are seeking to return again. A CBP officer considers this a sign that you are actually living in the United States rather than making temporary visits.
These are a few examples we have observed, but there are many reasons why CBP may question a person arriving with valid documentation. There are also reasons for them to refuse a person entry or issue an expedited removal (deportation) order.
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Your Information is Available for CBP to Review
We can easily see how technology has changed the availability of information. When we want to know something, we grab our phone, tablet or sit at our computer and look up the basic information. We check on flight schedules, compare prices of items we want to buy across websites, and look up information about how to apply for visas to other countries. It makes a lot of things really convenient – we have a lot of information available that we can put together and view. So does the U.S. government.
Your criminal history is available
Non-U.S. citizens are now fingerprinted at port of entry. While this might not seem like news as it’s been happening for a few years, it was a big change when it began. In the first few years after Customs and Border Protection began taking biometrics (fingerprints and photos) at the port of entry, many permanent residents were stopped because their fingerprints indicated that they had previous criminal offenses. They were surprised to learn that criminal cases they had settled many years ago were now jeopardizing their residence in the United States – even though they had successfully completed any sentence or probationary period for their cases. This could also mean problems for anyone using a false document to try to enter the United States. If you are not a U.S. citizen and you have a criminal issue of any kind, you should check with an attorney before you make any travel plans- there are many relatively minor criminal offenses (or ones that occurred over 10 years ago) that can cause a person returning from a trip to be placed in immigration court.
Your travel history – entries and exits – are available
More travel information is available than many people realize. The United States only stamps passports upon entry – we do not have exit stamping as other countries do. I have consulted with many individuals who believe that because there is no stamp in their passport showing when they departed the United States, no one will know and they can provide any date they want. However, U.S. government agencies (including Citizenship and Immigration Services and Customs and Border Protection) can access all flight manifests – meaning they can verify exactly when a person arrived and departed from the United States. So it is important for anyone wondering if they should report false travel information to know that this will be discovered! More importantly, if travel is an issue, there may be legal actions that you can take to protect your status in the United States.
Your marital history can be researched
Many of my clients have married overseas. If the marriage is recognized in the place where they occurred, it is valid and legal for United States immigration purposes as well. There are many people who fail to indicate that they are married when applying for visitor visas out of fear that their application will be denied. The truth is, it is legally permissible for a spouse of a U.S. citizen to visit the United States temporarily (and preparing good information for the application can make a big difference in whether it is approved or not). Any failure to mention something that would affect the outcome of an application is an issue that can prevent a person from entering the United States and be a very expensive and difficult issue to deal with. And U.S. Embassies, Consulates and other agencies such as U.S. Citizenship and Immigration Services do research foreign marriages and divorces, so assuming that a marriage or divorce won’t be found out is a bad idea no matter what.
Your information is available
We do not live in times of changing photographs on passports or providing different information and assuming no one will know. If you think providing the correct information will be an issue, it’s time to talk to a reputable attorney about your options.
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What Could Possibly Go Wrong? Deportation, Refused Entry, Visa Cancellation, Long Delays
Having a visa in your passport or clearance through the Visa Waiver ESTA portal does not mean you will be allowed to enter the U.S. It’s hard to believe, but even after a person is approved for a visa at an Embassy or Consulate, or is cleared by Customs and Border Protection through ESTA, CBP has the authority to refuse entry to a person.
Refused Entry
CBP can refuse entry to a person for a variety of reasons. For Visa Waiver travelers and people with visitor visas, a common reason for refused entry is that CBP does not believe that the person is coming for a temporary tourism or business visit.
For a person with a work-related visa, CBP might ask questions to try to see if the person is actually going to work at the employer that sponsored him/her for the visa in the first place. If the visa holder can’t answer questions about their job, their work location, and their credentials or background, it may cause CBP to determine that the person isn’t coming for the purpose of working based on the visa.
If a person is refused entry, it is a huge inconvenience as it occurs, but also has longer-term implications. A person traveling on Visa Waiver Program (VWP) may no longer be eligible to use it (and an attempt to hide the refused entry and try to use VWP again will result in even bigger problems. A person with a visa who is refused entry may have the visa cancelled. This will mean applying for another visa, and dealing with the issues that came up at the port of entry in the course of the new visa application. However, things could always be worse (see below).
Expedited Removal – Deportation at the Port of Entry
Although it might be hard to believe, a person can be given a deportation order at the airport with no hearing before a judge and no chance to appeal the decision. This is called an “Expedited Removal Order.” It happens when CBP believes a person has misrepresented his situation or reasons for entry, or if they believe that the person is not eligible to enter, even if the person has a valid visa in his/her passport.
You can imagine how devastating this is – If you’ve just arrived after an international trip, you’re exhausted after traveling for several hours. If you are stopped and questioned by CBP, you may wait several more hours before questioning ends. Then you wait for the next flight back to your home country and cannot return for five years unless you are able to secure a special waiver.
On some occasions, a person using a visitor visa or visa waiver is put on the next flight back to their country of origin when CBP sees emails indicating that they are working in the United States without authorization. A person in the U.S. on Visa Waiver may also be refused entry if he or she comes to the U.S. frequently, and takes a short trip out of the U.S. and tries to return to stay for another 90-day period.
Can’t I Just Ask for a lawyer if I am Detained?
You might wonder why you can’t just hire an attorney to come assist you if you’re stopped when you arrive at an airport or border. The reason is that a person does not have a right to an attorney when applying to be admitted to the U.S., so when you get to a port of entry (airport, land border, cruise port) you cannot have an attorney appear to assist you even if you want or need the help and even if you pay for the attorney yourself. This is another reason why it is extremely important to be sure you are prepared for travel to the U.S. before you get on a plane or get in a car.
Know Before You Go: Be Prepared for Travel Before You Get to a Port of Entry
We know that traveling internationally is stressful enough without immigration issues, but the truth is, you may be scrutinized by CBP any time you travel. There is always a risk that you may encounter problems, so preparing and taking action before you travel is important. We prepared our travel guide, Know Before You Go, to give travelers information about how CBP processes travelers and ideas about how to prepare for international travel. Our office helps to make our clients’ experiences as smooth and painless as possible. We want our clients to understand the risks involved in travel and be ready to explain the purpose of their travel and their eligibility for entry into the U.S. The bottom line is: it’s cheaper, easier, and a lot less stressful to avoid problems with CBP than to have an attorney help you after they happen!
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