Terrorism attacks continue to loom on the forefront following the November 13, 2015 Paris attacks. Following the attacks, Congress passed new legislation requiring approximately 38 countries which participate in the visa-waiver program to supply more in-depth security information about their travelers or else face possible termination of their participation in the program run by the Department of Homeland Security. The visa-waiver program is looked at as a privilege and not an entitlement because it allows foreign citizens from participating countries for up to 90 days without a visa. As a result, the Obama administration has decided to make changes to the program to address security concerns.
Last week, the Obama administration took a step further announcing that specific travelers will now be required to apply for a regular visa instead of being able to enter the U.S. through the visa-waiver program. The changes will apply to travelers entering the U.S. from Europe who have dual citizenship from the countries of Iran, Iraq, Sudan, or Syria. Furthermore, if there is a traveler who has visited those countries in the last five years, they will also be required to go through the regular visa application process. There are limited exceptions to this new policy: those who traveled to those countries for military or humanitarian reasons, as a diplomat, or as a journalist are not required to apply for a visa.
The administration implemented this new policy out of concern that travelers involved in terrorism may enter the U.S. by using the visa-waiver program and escaping stricter scrutiny by Homeland Security. An additional concern is that travelers who pose a risk to security may overstay, just as two of the September 11th hijackers did. Although the administration is concerned about travelers abusing their visa-waiver privilege, in a recent Department of Homeland Security report, the visitors who are required to obtain visas tend to overstay more often, as compared to visa-waiver visitors.
Congress and the Obama administration feel these stricter policies will help prevent terrorist attacks, but there are some who are concerned about the repercussions. Jonathan Grella, the executive vice president of public affairs at the U.S. Travel Association, stated, “When you start treating friends as less than friends, you can expect the same in return.” European countries have the option to change their policies for Americans entering their countries as well, so the ripple effects may be still to come.
Visa waivers are also known as ESTA, short for the Electronic System for Travel Authorization. ESTA is the form that all visa waiver applicants must fill out online. In practice, both lawyers and clients often refer to visa waivers as ESTA visas, even though it isn’t an actual visa.
There are a number of differences and rights when somebody enters on the more traditional B-2 visa, visitor for pleasure, as opposed to a visa waiver of ESTA. First, in lieu of allowing some 20,000 travelers per year to avoid the visa requirements, they give up certain rights when those ESTA applications are filed.
One major due process right which is waived when the ESTA application is filed is the right to contest deportation or removal before an impartial immigration judge in a hearing. That right is waived. If a visa-waiver visitor overstays the maximum 90 days allowed, committed fraud, or has been convicted of deportable offenses, U.S. Immigration and Customs Enforcement (ICE) may simply arrest, detain and remove the individual without a hearing.
Prior to the ESTA system, visa waivers would fill out a green form on the plane on the way to the U.S., known as an I-94W. That form was not just a visa waiver, but a waiver of the right to a hearing. This is a fundamental due process we generally enjoy as part of living in the United States. Customs and Border Protection (CBP) would keep the waiver upon inspection and admission to the U.S.
Bretz & Coven was extremely successful in challenging an attempted deportation without a hearing for overstaying the 90 days (while his green card application based upon being a specialty chef was pending). The U.S. Court of Appeals for the Second Circuit held that absent proof of the waiver, due process rights were violated by the failure to afford a visa waiver overstay a hearing. Galluzzo v. Holder, 633 F.3d 111(2011).
Other rights a visa waiver gives up is the right to change from the non-immigrant ESTA status to another non-immigrant status. For example, a person who comes as a visa waiver and then wants to apply for any other non-immigrant status such as H (work visa), L (company transfer), E (investor), or F (student visa), etc., must leave the U.S. and apply abroad, whereas, those who enter the U.S. on a non-immigrant visa such as a B-2 (visitor for pleasure) may adjust to these other non-immigrant visas. In addition, most B-2 visitors are granted six months when they enter and can apply for an extension.
As a general rule, with an exception of applying for political asylum, having a medical emergency or applying for a green card based upon an immediate relative petition (marriage to a U.S. citizen or having a U.S. citizen child over 21), visa waiver or ESTAs must leave the U.S. within 90 days. Even applying for a green card based upon an immediate relative is very tricky and an individual must prove that they didn’t enter the U.S. on a visa waiver or ESTA with the intention of living here permanently.
If you have any questions about how these changes might affect you or a family member, speak to a knowledgeable and concerned attorney at Bretz & Coven, LLP. We’re determined to see that you receive every advantage under the law. Call us today at 1 (212) 267-2555 or contact our office online to schedule a confidential appointment.