Consulates & Border FAQs

Consular and Border FAQs

Consular Resources

Border Resources

CONSULAR AND BORDER FAQs

  • What is a passport?
  • What is a visa?
  • What is an I-94?
  • What is the Visa Waiver Program?
  • What is a Notice of Action (Form I-797)
  • Which document controls the amount of time I can stay in the USA?
  • What is a green card?
  • What can happen to me at the border/port of entry when I present myself and my documents?
  • What if I want to seek asylum?
  • What is parole?
  • What is a refugee travel document?
  • What is a reentry permit?
  • Can I challenge the decision of a consular or border officer?
  • What are grounds of inadmissibility?
  • What is a waiver?

Q1: What is a passport?

A1: A passport is a booklet issued by all countries enabling departure from the country of nationality (citizenship) and travel to another country.  Most countries now have electronically produced passports, and the US is particularly concerned about those countries that do not have them.

Q. 2 What is a visa?

A.2 A visa is a stamp in a passport obtained from the consulate or embassy from the country where one wants to visit.  For example, if you are from Japan and would like to work in the USA, you would apply for a work visa at the US consulate or embassy IN Japan. Or, if you are American and would like to work in Japan, then you would apply for a Japanese work visa from the Japanese consulate or embassy in the United States. For US immigration, all the different type of visas for different purposes are lettered (e.g., B-2 tourist, H-1B specialty occupation worker, O or P for top level entertainers or athletes, etc.).  An “immigrant visa” is one obtained for permanent residence outside the USA at a US consulate or embassy. There are a few categories of people who do not need visas (see below).

Q. 3. What is an I-94?

A. 3. An I-94 form is a record of arrival and departure.  These forms are usually handed out in-flight before the plane descends into the USA, or they are provided at a land or sea port of entry. One receives an I-94 every time one is admitted into the USA. The I-94 can either be a white card, a green square card like the white one, or it is logged online.  The cards will have a date stamp showing the date of entry and the port of entry location, and an expiration date or “d/s” meaning duration of status for some visa categories such as F–1 student or J-1 exchange visitor.  The online I-94 will also note the date of entry, port of entry and expiration date.  Note: The I-94 expiration date controls how much time you have in the USA even if you have a multiple entry long term visa. This is very important for future immigration planning. Be sure to turn your I-94 in at the border or airport when leaving to keep track of departures, which can affect admissibility issues later.

Q. 4 What is the Visa Waiver Program?

A. 4  The U.S. has agreements with a number of countries to allow visitors to enter for up to 90 days without needing a visa from a consulate or embassy.  You must apply for this privilege through the ESTA system.   ESTA is not a visa. It is just an application. Upon admission, you will be given WT (tourist), WB (business visitor) or WD (dependent of a WT/WB) status for 90 days.

We recommend keeping a copy of your application before submitting it in case you need to consult with a lawyer later or you are accused of misrepresentation.  Please note what you give up by using the visa waiver program. You get a maximum of 90 days admission and cannot change status or extend status except in some rare circumstances.  You also give up your right to a hearing in front of a judge except in rare circumstances. If you want to be in the US for more than 90 days or want to work, study or participate in other non-tourist activities, you will need to apply for the appropriate visa at a US consulate or embassy. Be sure to read the Visa Waiver FAQs for more in depth coverage and issues about this program.

Q. 5.  What about Canadians? Do they need visas?

A. 5 Canadians have a special circumstance.  They do not need visas to enter as tourists or business visitors, but they don’t need to use the ESTA program. They do need to present passports. They are presumed to be bona fide tourists for up to six months. But, USCIS and CBP interpret their stay differently. CPB interprets a flat six months while USCIS interprets stay as “D/S” duration of status up to six months. To stay longer requires departure and reentry or filing for an extension of stay.  H-1B, TN and L-1 applicants do not need visas, but they need to file paperwork for these statuses at the border. All other statuses require a visa, including immigrant visas, from a US consulate or embassy in Canada. Landed immigrants of Canada require visas.

Q6. What is a Notice of Action (Form I-797)

A7. The Notice of Action (Form I-797) is a document issued by US Citizenship and Immigration Services (USCIS), a division of the US Department of Homeland Security. Many visa categories require the initial filing of a “visa petition” with USCIS to prove up the eligibility for the category. Examples are H-1B, L-1, O, P, Q, U, T and other temporary or permanent resident visa categories.  The fee receipt and approval notice is issued on Form I-797. Then, the applicant takes this to the US consulate or embassy when filing for a visa.  In addition, where a person is in the USA and applies for a change of status or extension of stay, the new I-797 may be issued with an updated I-94 at the bottom of the page giving a new authorized stay expiration date.

Q.8. Which document controls the amount of time I can stay in the USA?

A.8. The I-94 controls the amount of time to stay in the US and the category since the date of last admission, unless the person has received a I-797 with a new expiration date. See Q/A#7 above.

Q.9. What is a green card?

A.9. A green card is a street name for “alien registration card” or an “I-551” card. It is evidence of lawful conditional or permanent residence in the USA.  It is not a visa and it is not evidence of citizenship. It may have an expiration date.  Periodically, one must renew the card itself for updated security features. However, permanent residence is indefinite unless a person converts to citizenship, abandons residence (intentionally or inadvertently), or commits an act that can jeopardize continued residence status.

Q.10 What can happen to me at the border/port of entry when I present myself and my documents?

A. 10 When a person appears at the border and presents a passport with or without a visa, it is like knocking on the door and asking “may I come in”? The CBP border officer has the final say about whether to let you in to the USA even if you have a valid visa.  You will be questioned minimally or extensively or somewhere in between depending upon a number of factors: where you are from, your travel history, your age, what’s in your luggage, your answer to questions, how busy the port is, how new or experienced the officer is, whether there are particular individual or group or location security concerns and other factors. It is important to make sure you are prepared for anything and that the true purpose of your trip is consistent with the visa you have and statements made at the border. Here are the possible outcomes:

1. Admission – the person is “inspected and admitted” into the USA and will be given the I-94 mentioned above.

2. Secondary inspection – the person is pulled out of the main line and sent to a room or other location for further questioning. This could be short or long or in between. The person may or may not be admitted.

3. “Withdrawal of Application for Admission” – if you are not admitted, this would be the next best situation that you would want. This means the officer is not convinced about your intentions or eligibility but you can come back another day with better evidence. The person will either be turned around at a land or sea border or sent back home on the next flight out. The person may or may not be detained until then.

4. “Expedited removal” – this is the worst outcome – the officer makes a finding of “inadmissibility” (see below). Usually, the person is then detained either at the airport or a detention center until the next available flight. Or, if at a land border, the person is just turned around to the other side of the border. An expedited removal order results in a five-year bar to coming back.

5. “Parole” – Parole is a legal fiction.  ICE, USCIS and CBP all have parole authority. It means a person can be in the USA with government authority, but it is not a visa, green card or citizenship. It is usually given for humanitarian, national interest purposes, to attend court hearings and some other rare circumstances.

6. “Deferred Inspection” – sometimes the CBP officer is not entirely sure about eligibility, but there is no obvious threat, misrepresentation, or other major issue but the person is referred to a deferred inspection officer that may be off site or somewhere else at the port. The applicant then makes an appointment to speak to a CBP officer to clear up any issues and that officer can either correct an I-94, issue an I-94 or take other action.

Q. 11 What if I arrive at a border and want to ask for asylum?

A. 11 If you somehow manage to arrive at a border inspection station or have an encounter with a CBP officer, you can immediately ask for asylum.  You will be given a “credible fear” interview about your reasons for needing asylum: that you either were persecuted in the past or there is a “well founded fear” of future persecution “on account of, ” or because of, your race, religion, nationality, membership in a particular social group or political opinion.  However, it is likely you will be detained while waiting for your credible fear interview with an asylum officer.  If you pass the credible fear interview, you can ask for parole (release from detention). You may or may not be released. After the credible fear interview, your case will be scheduled for a full hearing on the merits of your asylum claim.  You must appear at that hearing or your case will be denied and you can be deported. You could be detained for weeks, months or even longer while waiting for that hearing.

If you enter the USA in a visa status with an I-94 and later think about filing for asylum, you must file your “affirmative” asylum claim within one year of entry.  There are a few exceptions to the one-year rule.  Asylum is very difficult to get. We suggest getting legal advice from an attorney or BIA accredited representative about your eligibility for asylum.

Q. 12. What is parole?

A.12. As noted in Q/A#10, parole is a legal fiction.  ICE, USCIS and CBP all have parole authority. It means a person can be in the USA with government authority, but it is not a visa, green card or citizenship. It is usually given for humanitarian, national interest purposes, to attend court hearings and some other rare circumstances. There are a few different types of parole. Advance parole is travel permission for applicants for adjustment of status, DACA, TPS and some other statuses. Port parole is a status that can be applied for at a port of entry for certain humanitarian, national interest, and other reasons. Humanitarian parole can be applied for at USCIS in Washington, DC for certain humanitarian reasons, usually for family unity or medical reasons.  Parole issued by ICE usually concerns release from detention while waiting for a court hearing.  Parole authority was created decades ago by Congress and has regulatory authority as well. Unfortunately, for unknown reasons, the Trump Administration is very much against parole authority.

Q. 13. What is a refugee travel document?

A. 13. A refugee travel document is issued to refugees and asylees who need to travel abroad. When making a refugee or asylee claim, one has claimed persecution (see #11 above) and therefore, applicants are expected not to seek benefits from the home country anymore, including passports. Therefore, instead of a passport, they travel on an internationally recognized refugee travel booklet that has pages for visa and entry/departure stamps. It is advised not to travel to the country where the applicant claimed to be persecuted as that could be contrary to the persecution claim.

Q. 14. What is a reentry permit?

A. 14.  A reentry permit is also a booklet for international travel, visas and stamps. It is used by lawful permanent residents who need to be abroad for more than a year and who do not want to abandon residence. They are issued in two-year increments.  However, we recommend seeking legal and tax advice before applying for a reentry permit. One of the services we offer is long range planning to preserve residence and naturalization eligibility.  A reentry permit is no guarantee against a finding of abandonment of residence.

Q. 15. Can I challenge the decision of a consular or border officer?

A. 15. Challenging the decision of a consular or border officer is very difficult to do. This is because a) there is no formal right to appeal; and b) there is no formal right to an attorney; and c) applicants are deemed to be outside the USA with fewer rights and privileges.  However, there are things you can do to challenge a decision:

Consulates/Embassies: 1) Ask to speak to a supervisor. It may not be the same day as your interview/date of denial. 2) See if there is other documentation that you could submit. 3) Questions of law or misapplication of or misinterpretation of facts can be discussed with the State Department’s Office of Advisory Opinions or “LegalNet”. Note, however, that it is rare for that office to overturn findings of fact by the consular officer. Their focus is usually on legal issues.  There have been some lawsuits over the years filed in the federal courts by US petitioners (US citizens, employers, etc), but they have not been that successful except in some rare circumstances.

Border decisions: 1) Ask to speak to a supervisor. 2) Ask to call an attorney. 3) Like the consular situation, law suits are possible but difficult. An example would be the travel ban cases.

If you feel you were treated unprofessionally, or if you have other treatment related issues, you can also try these resources:

-contact the Office of Personnel Management

-contact the Office of Inspector General in the State Department

-contact Legalnet above

-contact CBP Office of Internal Affairs

-contact CBP Professionalism Service Managers

-contact DHS Traveler Redress Inquiry Program

Q. 16. What are grounds of inadmissibility?

A. 16.  Grounds of inadmissibility are reasons why a person can be denied 1) a visa, 2) admission into the USA, 3) a green card and 4) citizenship. The grounds are set forth in Section 212(a) of the Immigration and Nationality Act (INA) created by the US Congress.  A list can be found here. They relate to health, crimes, misrepresentation, illegal immigration, terrorism and other categories. Some grounds of inadmissibility set forth exceptions (e.g., a ground applies except to minors).  Some grounds have “waivers” or additional discretionary applications despite the ground of inadmissibility (see below). (e.g., some “crimes involving moral turpitude” can be waived) by submitting an additional application. Finally, some grounds of inadmissibility have “strict liability” – in other words, there are no exceptions and no waivers at all. An example is a tourist visa applicant with a history of false claims to US citizenship.

Q. 17.  What is a waiver?

A. 17. A waiver, as mentioned above in #16, is an additional discretionary application to justify admissibility despite being inadmissible. There are two kinds of waivers – those for nonimmigrant temporary visas, and those for permanent residence.  The nonimmigrant waivers are decided at a US consular post or by the CBP Admissibility Review Office. The primary standard for these waivers is a balancing of the ground of inadmissibility (past facts) with the 1) risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant’s immigration law, or criminal law violation, if any; and (3) the nature of the applicant’s reasons for wishing to enter the United States.

There are different types of waivers for permanent residence.  Some require showing rehabilitation for those with criminal records, drug or alcohol abuse, while other waivers require showing “extreme” or “exceptional” hardship to a qualifying US citizen or permanent resident “qualifying relative.”  Information about these waiver types can be found here or here. They are all discretionary, meaning, the adjudicating officer will balance the bad facts with the good facts after the hardship or rehabilitation has been shown.

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