Practical Tips When Traveling To/From the U.S.



Coming to America ……

It's that time of the year when the school year is about to end, college students are about to graduate and plans are being made to travel to and from the U.S. or parents/relatives who are in the U.S. are preparing to attend their children's graduation. Many questions come to mind.

Those who are planning to apply for tourist visas, obviously, would like to know how to make their visa applications successful. Some think that a lawyer's representation is necessary to ensure the successful approval of a tourist visa application. It is not necessary to be represented by a lawyer (and certainly, not by a travel agent) when applying for a tourist visa. The visa applicant must simply understand the policy governing the actions of consular officer who conduct the interviews. Section 214(b) of the Immigration and Nationality Act states that any visa applicant (which includes applicants for non-immigrant/tourist visas) is presumed as an intending immigrant and therefore, the burden of proof weighs on the visa applicant’s ability to show that there is no intention to immigrate. To overcome this presumption, the visa applicant must demonstrate to the consular officer that the trip is for a reasonable period of time (to visit friends and relatives or to carry out a brief, non-compensated business purpose) and that existing circumstances compel the visa applicant’s return to the Philippines. In addition, the visa applicant must demonstrate that he/she has enough funds to carry out the purpose of the trip and/or someone is willing to provide financial support while they are visiting the U.S. (i.e., an Affidavit of Support, which may or may not be asked at the interview). Remember that tourists are not allowed to work and, under Section 222(g) of the Immigration and Nationality Act, unauthorized work results in the automatic voidance of the multiple-entry visa. Thus if one cannot demonstrate the availability of sufficient funds to cover the trip, the visa application will, most likely, be denied.

This leads to the next topic – the importance of non-immigrants maintaining and not violating their status while in the U.S. This leads me also to emphasize the importance of consulting with a licensed immigration lawyer (not quasi practitioners or notarios) when one is entertaining thoughts of staying to be gainfully employed in the U.S. The common tendency of those who are new in the U.S. is to rely on advice from their friends. This is dangerous because immigration laws and administrative interpretations do change such that laws and agency interpretations applicable to someone in the past may no longer be applicable someone now. In some instances, people are afraid to approach lawyers for fear that they might be turned in to the authorities or the cost of consultation may be prohibitive. Rest assured that lawyers are bound by the ethical rules of confidentiality, which cannot be violated. The fee paid when consulting a lawyer (or several lawyers for second, third opinions) should be viewed as an investment to enable one to reach an educated decision. Merely consulting with a lawyer does not render one obligated to retain the services of that very lawyer. It is, however, very important to seek accurate legal guidance from people who know the law that applies to the nuances of one's unique case.

Through e-mail inquiries and in a recent open forum, I have learned of myths that people hear from their friends, relatives and colleagues. These myths cause unnecessary worry a lot of people. Among the comments/questions made was - "I heard that extending one's stay results in being blacklisted. Is this true?" This is not true because the law specifically provides for a mechanism to extend one's stay - it's not a bad thing to extend as long as there is a bona fide reason for the extension and there is no misrepresentation or fraud involved. It is even possible to change status to enable one to work legally in the U.S. for a temporary period of time. And it is also possible to adjust status to that of a lawful permanent resident as long as there is a legal basis.



Practical Tips When Changing Status

Changing to a working status is possible when there is a real job (no accommodation paper jobs) and the employer is willing to pay no less than 100% of the prevailing wages for the position in the area of employment. After a successful change to a working status, it is important to maintain status (this will have an impact on one's ability to apply for the green card in the future) by working for the employer or, there is a properly filed change of employer petition by the succeeding employer.

Those who were able to change to a student status must attend school with the full load required by law in order to maintain status.

The above only emphasizes the need to maintain status - without doing so, one's ability to obtain a green card in the future may be jeopardized.



Once in America ……

So those who came here years ago may now have a working status (e.g., H1B status), others may now be in the process of adjusting their status to become green card holders and many of them are now green card holders. When planning to visit relatives in the Philippines, the most immediate concern is being able return to the U.S. without any incident. So there are three groups here: (a) those who came to the U.S. initially as tourists, who later changed status to another non-immigrant classification; (b) those who are in the process of applying for adjustment of status (green card status); and (c) green card holders who had previous legal problems, e.g., criminal convictions that would render them removable from the U.S.



Issues for Those Who Have Changed Status

When seeking admission into the U.S., one must have a valid visa that I appropriate to the purpose for which one is seeking admission. When one has changed status in the U.S., the tourist visa that was used in initially entering the U.S. will no longer be valid for purposes of admission (the purpose is no longer to tour but to work or to continue studying, as the case my be). For example, when one was successful in changing into a working or student status, it would be necessary to have the working or student visa stamped on their passport before traveling to the U.S. This means that one must set a schedule for a visa interview (which takes months in Manila). Any visa application at the consular level is subject to adjudication and there is no certainty that the visa will be granted. One may be required submit onerous documentary requirements (not only from the applicant but also from the employer of those who changed to working status). Those who are in this group are best advised to stay so as not to jeopardize their jobs. But this may mean a long wait until they could travel back home worry-free.



Issues for Adjustment of Status Applicants

I am often asked the question whether mere filing for an "green card application" (take loosely) would enable one to go home, work legally or be "protected from deportation". Others wonder why some are able to go home and others can't.

The green card process takes several steps. Depending on what stage and depending on whether one has previously overstayed (unlawfully present) for more than 180 days, one may or may not be able to travel outside the U.S. If eligible, a green card applicant may apply for advance parole (often wrongly referred to as "parole visa") to allow a brief travel for no longer than 60 days. The law states that a green card applicant who travels outside the U.S. without an advance parole is deemed to have abandoned the green card application.



Issues for Green Card Holders

Re-Entry Permit

Any green card holder who is anticipating to be outside the U.S. for more than one year must apply for a re-entry permit and that application must be RECEIVED (not necessarily approved) by the Immigration Service before the green card holder departs the U.S.

Deferred Inspection

When a green card holder who was outside the U.S. for more than 6 months returns to the U.S., he/she is considered an applicant for admission. Also, when a green card holder has committed a crime, the admissibility of the green card holder may be put in question. If there is any ground for inadmissibility, the green card holder would be paroled into the U.S. (allowed in but not necessarily admitted into the U.S.) and placed in deferred inspection. At the deferred inspection, the immigration officer will finally determine whether the green card holder should be allowed back in or be placed in removal proceedings (and the green card holder may submit documentary evidence to clear up any doubts).

Some green card holders may need to examine their immigration history (and, perhaps, criminal history) before traveling. The lesson from this is that no one is completely out of the woods until one becomes a U.S. citizen.. However, before rushing to file that application for naturalization, it is important to carefully review (preferably, with an immigration law practitioner) one's immigration history and good moral character issues. It is very important to make sure that, when the Immigration Service examines the naturalization application, there will be no issues that would put one's green card status in jeopardy.