How to Win Visa Stamps and Influence Officials
December 28, 2006
When businesspeople envision traveling over the holidays, they certainly don't hear sleigh bells. New passport laws that take effect in January require all U.S. citizens to carry passports whenever they leave U.S. airport security. Gel issues aside, U.S. business travelers know they will reach their destinations.
By contrast, foreign national business travelers and their global and U.S. employers face unique challenges - and no guarantee of a successful return trip.
The main problem? Background name and security checks - because of the type of work being performed or because of the foreign national's surname or nationality - can long delay a foreign national's ability to obtain a visa to enter or re-enter the United States.
This past fall, an Egyptian-born assistant professor at San Francisco State University encountered an unanticipated delay of three months in Canada when he went for a consular interview to obtain a visa - a process which should take four days. This occurred despite the fact that United States Citizenship and Immigration Services approved a visa petition for the professor, generally reserved for those outstanding in sciences, arts, education, business or athletics. No one explained the reason for the delay.
Even without unanticipated consular processing issues, global businesses must be careful of stretching the bounds of what is permissible under the "business visitor visa" category. What has worked before may not work now. This is because inspectors at airports and other ports of entry now strictly enforce previously ignored requirements under this visa category.
Business visitors may attend board or other meetings and may make sales pitches, among other activities. They may not perform actual work, regardless of whether the U.S. entity is providing compensation. Key employees may get harassed or turned back at ports of entry if their answers to related questions don't fit regulatory requirements.
As the unlucky Egyptian professor learned, acquiring a visa stamp in one's passport requires careful analysis before travel and a willingness to take certain educated risks. All foreign nationals in temporary-work visa status traveling overseas who do not have a valid visa stamp in their passports need to acquire visa stamps overseas at a U.S. consulate to return to the United States. Further, employers should be on the alert that visa stamp appointments often fill up at U.S. consulates and embassies, which often close for a week in December.
In the past, the consulates in India have been particularly backlogged during the holiday travel season. Acquiring the visa stamp in Mexico or Canada is often more convenient. Consular appointments in most of Canada are backed up several weeks. Security checks may result in further delays.
The answer? Provide proper documentation for international travel. Sometimes, a letter delineating compliance with immigration requirements will suffice for entry to this country. For consular interviews, the foreign national must understand the questions being asked to avoid later accusations of misrepresentation before the U.S. government. In the case of security checks, having a signed attorney-of-record form may assist counsel in asking the U.S. government for an "advisory opinion" after 30 days, to keep the visa acquisition process moving along.
The good news is that average delays caused by security checks are down to three-to-four weeks from up to two months last year.
Delays may be unavoidable in certain instances and can cause anger as well as adverse economic challenges. The journal Nature recently reported a diplomatic incident with one Indian chemist who was refused a visa to become a visiting professor at the University of Florida, Gainesville, during President Bush's first visit to India. When this former director of the Indian Institute of Science in Bangalore finally was "granted" the visa by the State Department's ambassador, he refused it because he felt angered and humiliated by the process.
Flexibility is key, as is managing the expectations of your employees who travel. The following checklist should help.
1. Verify that the employee's passport is current and machine-readable. Passport requirements have changed recently or are due to change. The Enhanced Border Security and Visa Entry Reform Act of 2002 requires machine-readable passports that are tamper-resistant and that incorporate biometric and security identifiers for individuals traveling under the visa waiver program. Beginning January 8, the Western Hemisphere Travel Initiative requires all travelers to possess a passport for travel by air among Canada, Mexico, Central and South America, the Caribbean and Bermuda. This applies to all U.S. citizens. Canadians, who have traveled to the U.S. for years without the need for a passport, are particularly affected by this new law and should plan accordingly.
2. Know the immigration status of all your foreign national employees. Plan accordingly for employees who need to make appointments and applications at a U.S. consulate in order to acquire visa stamps in their passports.
3. Counsel your client's employees on how they are likely to be questioned. At a consular interview, being fingerprinted and questioned can be very upsetting. Unfortunately, emotional reactions may lack clarity and tend only to complicate matters. Set up protocols for what to do in the event of a problem or delay and whom to contact in the U.S. for assistance.
4. Follow all local airport rules to the letter, and be mindful of all behavior. Arguing over whether a bottle contains 2 or 3 ounces is not wise. Nor is consuming alcohol, especially on long flights. Obey all rules in airports and on board aircraft.
Laura J. Mazel is a partner in the San Francisco immigration law firm of Weaver, Schlenger & Mazel.
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