Immigration Planing for Holiday Travel

As the holiday season approaches, international travelers should expect airports, Consulates and U.S. Ports of Entry to be exceptionally busy due to the large number of travelers and visa applicants, and enhanced security measures and vetting procedures. We encourage corporate human resource personnel, business travelers, and foreign national employees to take proactive steps and plan ahead to minimize the likelihood of delays when traveling abroad and entering the U.S.

Important Reminders:

Passports: All travelers, including U.S. and Canadian citizens, should confirm the validity of passports for themselves and accompanying family members. Passports should be extended or renewed in advance to ensure at least six months’ validity at the time of visa application or entry to the U.S. Many countries allow renewal of passports by mail Consulates or Embassies in the U.S. Please visit Contact Info for Foreign Embassies and Consulates and select the applicable country to find the Consulate nearest you.

Visa Waiver Travelers to the U.S.: The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries and who wish to enter the U.S. for B-1 business or B-2 tourism purposes. In order to enter under VWP, travelers must obtain a valid ESTA approval prior to travel. Once approved, the approval may be valid for up to two years. However, if any changes occur after approval (such as obtaining a new passport, name or country of citizenship change, or answers to any of the VWP eligibility questions change, such as an arrest), a new ESTA application must be submitted. If a traveler is not eligible for ESTA, they must apply for the appropriate visa to enter the U.S. A list of current VWP countries and more information on VWP is available here.

Plan Ahead for Visa Issuance at Consulates:

• Foreign nationals are strongly advised to consult with immigration counsel before applying for a visa in order to prepare for enhanced vetting and for the consular interview.
• Schedule consultations 60-90 days prior to travel, whenever possible.  Appointment wait times at U.S. consulates can range from a few days to a few months.
• Foreign nationals requiring visa issuance at a Consulate abroad should check the Consulate’s website prior to travel for specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little or no notice. Links to U.S. consular posts around the world are available on the DOS website.
• All visa applicants (including dependent spouses and children of principal visa holders) require completion of the Form DS-160 as part of the visa application process, and many Consulates require this step be completed prior to scheduling a visa appointment. Given increased data sharing by federal agencies, we recommend foreign nationals retain a copy of the final Form DS-160 for their records, prior to online submission.
• Prior to traveling, foreign nationals should review the underlying visa application/petition prepared by Immigration Counsel to ensure the accuracy of the information reported and consistency in visa applications.
• Online profiles for employers and employees: Government officials at U.S. Citizenship & Immigration Services (“USCIS”), Consulates, and U.S. Ports of Entry are increasingly searching the internet and reviewing the social media profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S. Be sure to review information online and update social media profiles on websites such as LinkedIn or Facebook. Employers are also advised to update corporate information on company pages and sites such as Dun & Bradstreet that may be referenced by officers to verify bona fide employment or business information through the USCIS’ Validation Instrument for Business Enterprises (VIBE) program.
• Current wait times for visa appointments and visa processing times vary by Consulate, and can be found here. Timeframes are estimates only and may not be updated regularly. Actual processing times may be longer, and do not contemplate any unforeseen delays due to security or background clearance issues, which may delay visa issuance for several weeks or months. In addition, enhanced security screening measures have been implemented for certain visa applicants. Foreign nationals should alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
• U.S. Consulates abroad observe both U.S. and local country holidays. In addition, many consular offices may be short-staffed due to vacations. It is important during the holiday season to check with the Consulate in advance to confirm office hours and closures, which may result in delayed visa processing.

Status and Entry Documentation: Upon entry to the U.S., certain entrants may be required to show additional evidence of work authorization or government approval in addition to a currently valid visa stamp. Depending on the visa classification, such documents may include an original I-797 Approval Notice, an endorsed Form I-129S, an employment authorization document (EAD) card, or a Form I-20, among others. Upon entry to the U.S., the U.S. Customs and Border Protection (CBP) inspecting officer should create an electronic I-94 record and stamp the passport, annotating it with the class and duration of admission. Before leaving the CBP inspection area, foreign nationals should verify that the admission classification and expiration date stamped in the passport are correct, and immediately alert the CBP officer to any errors. After each entry to the U.S., foreign nationals should access and review their electronic I-94 record at the CBP website.  Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date for the visa stamp permitting entry from outside the U.S.

Employment Verification: For foreign national employees who are applying for a temporary work visa, most Consulates require current employment verification letters from employers. Foreign nationals are encouraged to request these letters well in advance of travel to allow adequate time for human resources or Immigration Counsel to prepare letters. Employees are also encouraged to maintain copies of recent paystubs as evidence of current employment.

Advance Parole: Certain individuals with pending I-485  Adjustment of Status applications must have a valid original Advance Parole travel document issued and in-hand prior to departing the U.S. Departing the U.S. without this document may result in the abandonment and denial of the I-485 application. There may be limited exceptions for employees with valid H or L visas.

Law Enforcement: Failure to maintain valid immigration status and violations of local and/or federal law may have significant immigration consequences.  Foreign nationals who have been arrested or detained by law enforcement (even if not charged/convicted) for any reason should consult with immigration counsel before departing the U.S. or applying for a visa or any other immigration benefit.  Citations, arrests or detentions by law enforcement, even if not charged or convicted of a crime, may need to be disclosed on applications and may impact immigration status and/or eligibility for immigration benefits. In some cases, DOS may “prudentially” revoke otherwise valid visas if it learns of an arrest by law enforcement, even if the individual has not had a hearing or has not been convicted, requiring the individual to apply for a new visa once he/she departs the U.S.   Pursuant to enhanced security vetting measures, there has been increased scrutiny of violations of law by immigrants, and immigration officials have wide discretion in denying immigration benefits and refusing entry to the U.S.  Foreign nationals should seek advice of legal counsel to review the potential impact of security checks and criminal issues well in advance of travel, and in particular, to be aware of the DOS policy on visa revocations for non-immigrants with DUI-related charges.

If you have any questions regarding this alert, please contact your designated Gibney representative or email info@gibney.com.

This alert contains general information only, and is not intended to provide legal advice.  Please contact immigration counsel for specific legal advice regarding your case.