January 2002 Newsletter*   (Updated 2009)

    By James A. Bach, Esq.

 

Expedited Removal For Failure To Obtain The Proper Visa

People who attempt to enter the United States without first obtaining the proper visa or border crossing card may be subject to expedited removal and could be permanently barred from reentering the United States.  To avoid the harsh consequences of expedited removal and a finding of inadmissibility, the applicant should inform CBP (Customs and Border Protection) port of entry officials that they wish to withdraw their application for admission, and depart the United States immediately. 

People who refuse to withdraw their application for admission could be taken into custody and placed in expedited removal proceedings.  A charge of fraud or material misrepresentation may result in a permanent bar from entering the United States.

 Expedited Removal For Failure To Satisfy TN Requirements

Canadians applying for TN status who cannot demonstrate to CBP port of entry officials that he or she satisfies the TN documentary requirements should withdraw their application.  CBP officials will place applicants into an expedited removal proceeding if he or she believes the applicant is an intending immigrant, or is seeking admission by fraud, or willful and material misrepresentation.  (Inspectors Field Manual, Ch. 15.5 section (f)(10)).  This development is one more reason why eligible professionals in TN status should change to H-1B status as soon as possible.  

Minimizing Reciprocity Fees

Some visa applicants must pay a “reciprocity fee” in addition to the $100 visa issuance fee.  The amount of the reciprocity fee (if any) is based upon the visa category and applicant’s country of nationality or permanent residence.  The fee is equal to the fees charged U.S. citizens to obtain the same visa to visit the subject country.  The Reciprocity Fee Schedule may also limit the maximum validity date of some visas.  Before applying for a visa, the applicant should review the Reciprocity Fee Schedule, which is located at the State Department’s web site http://travel.state.gov/visa/reciprocity/index.htm.

The applicant can minimize the reciprocity fee by choosing to pay the lower reciprocity fee of either their country of citizenship or their country of permanent residence.  For example, a citizen of India who is a permanent resident of Thailand seeking a H-1B visa may choose to pay the lower reciprocity fee for Thailand, rather than the reciprocity fee for India.  If the consular official is unaware of this rule, the applicant should refer him or her to Immigration and Nationality Act § 221(c) and State Department cable no. 97-State-115630 (June 19, 1997). 

Effect Of Departing The United States While A Petition Is Pending With The USCIS

Beneficiaries of petitions to extend H or L status may depart the United States before the INS has completed processing of the petition.  If the H or L beneficiary returns to the U.S. before the extension petition is approved, the I-94 card which he or she received upon entering the United States would be considered extended if the pending petition to extend H or L status is granted by the INS.

Petitions to extend B-1, B-2 or petitions to change status are considered abandoned should the beneficiary depart the United States while the petition is pending.

 

* The purpose of this newsletter is to inform potential clients of the type of legal issues our firm handles. It is not intended to establish any attorney/client relationship, and we accept no responsibility for the accuracy of the information provided. We cannot discuss or clarify any of the information contained in our newsletters, except with our existing clients.

 

Copyright © 2002  by JAMES A. BACH