Visa Lawyer Blog

Articles Posted in Tourists

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11176275396_fdf69cfd1e_zOn Monday, December 4, 2017, the United States Supreme Court issued an order allowing enforcement of the President’s latest travel ban in its entirety, pending legal challenges in lower courts. In its brief order, the Court signaled its desire for the appellate court to address any challenges to the travel ban, swiftly. Justices Ruth Bader Ginsburg and Sotomayor were the only justices who would have blocked the latest travel ban from going into effect.

The court’s order means that the Trump administration may enforce all of the provisions of the President’s latest travel ban, until the federal courts hand down rulings on the constitutionality of the ban. As you may recall, non-US citizens affected by travel ban 3.0 include nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.

The travel ban DOES NOT affect lawful permanent residents of the United States (green card holders), foreign nationals granted asylum, refugees admitted to the United States, or dual nationals traveling on a passport from a non-designated country.

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On Wednesday, July 19, 2017, the United States Supreme Court responded to the Trump administration’s motion seeking clarification regarding the Supreme Court’s June 26th preliminary ruling, which held that the President could enforce the travel ban against foreign nationals from Iran, Syria, Sudan, Libya, Yemen, and Somalia, who lack a credible “bona fide” relationship to a person residing in the United States, or entity such as an employer, religious, or academic institution.

The government sought clarification from the United States Supreme Court after the state of Hawaii challenged the government’s interpretation of a “close familial relationship,” and convinced a federal court judge that the Supreme Court intended close family members to include extended family members such as “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” Federal judge Watson was also convinced that refugees with a formal assurance from a resettlement agency were exempt from the travel ban.

In a brief order, the Supreme Court denied the government’s motion seeking clarification of the court’s June 26, 2017 preliminary order, and reversed judge Watson’s decision regarding the admission of refugees with a formal assurance from a resettlement agency. The Supreme Court has ruled that refugees with a formal assurance from a resettlement agency will not be granted admission to the United States pending the resolution of the government’s appeal to the Ninth Circuit Court of Appeals.

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As previously reported, the Visa Waiver Program Improvement and Terrorist Prevention Act of 2015, was a bill that was signed into law at the end of 2015, which imposed new restrictions on the use of the Visa Waiver Program (VWP) for certain travelers. In this post, we update our readers regarding new information provided by CBP in their newly updated FAQ page.

What is the Visa Waiver Program?

The Visa Waiver Program allows citizens of designated countries to apply for admission to the United States as visitors (traveling for holiday, business, or in transit) without having to obtain a non-immigrant B1/B2 visa at a U.S. Embassy or Consulate abroad, using a system known as ESTA or Electronic System for Travel Authorization.

To be eligible to travel to the United States under the visa waiver program, you must be a citizen of one of thirty-eight countries eligible to participate in the program, you must have a valid machine-readable passport issued by the participating country that is valid for at least 6 months before your planned departure, you must apply for and have an approved ESTA before your proposed travel, and you must intend to remain in the United States for 90 days or less.

You may not be eligible to travel under the VWP if you have been denied a U.S. visa in the past, or have an immigration violation. In this case, you must apply for a visitor visa at a U.S. Consulate abroad, even if your country participates in the VWP.

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In response to a memorandum issued to United States consulates and embassies around the world by President Trump and his administration on March 6, consular officials at U.S. embassies around the world are now taking tougher measures to enhance security screening of U.S. visa applicants to prevent potential security threats from entering the United States. Enhancing vetting procedures are intended to target individuals from certain “countries of concern” including the six countries of concern listed in the President’s travel ban: Syria, Sudan, Somalia, Yemen, Libya, and Iran, as well as others.

Applicants for U.S. visas from “countries of concern” can expect to undergo additional vetting procedures immediately. The U.S. Department of State has been using a supplemental questionnaire called the DS-5535 since May 25, 2017 which asks both immigrant and non-immigrant visa applicants a series of detailed questions to help consular officials determine whether a visa applicant must go through enhanced vetting to determine whether the individual poses a national security threat, or other potential threat to the United States. The questionnaire has been used as a temporary emergency measure in response to the President’s March memo, which called for enhanced screening of visa applicants, and what he has called “extreme vetting” of foreign nationals admitted to the United States.

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Do’s and Don’ts

If you are considering applying for a temporary visitor visa to travel to the United States for purposes of leisure or to receive temporary medical treatment, there are several things you should be aware of. First, you should understand what you can do while on a temporary visitor visa and what you cannot do. You may travel to the United States on a visitor visa if your visit will be temporary. The proposed visit must be either for recreational purposes such as to visit your friends and relatives in the United States, receive medical treatment, attend a short course of study related to the nature of your trip, or to engage in activities of a fraternal, social, or service nature. You may not enroll in a course of study that exceeds your authorized duration of stay of is unrelated to the nature of your trip, and you may not seek employment during your stay. If approved, a visitor visa is generally authorized for a 6-month period which may be extended for an additional 6 months by filing Form I-539 Application to Extend/Change Nonimmigrant Status.

Does your country participate in the visa waiver program?

Before applying for a visitor visa , you should verify whether you are a citizen of a country that participates in the visa waiver program. Presently 38 countries participate in the visa waiver program, as shown below.

Andorra Hungary Norway
Australia Iceland Portugal
Austria Ireland San Marino
Belgium Italy Singapore
Brunei Japan Slovakia
Chile Latvia Slovenia
Czech Republic Liechtenstein South Korea
Denmark Lithuania Spain
Estonia Luxembourg Sweden
Finland Malta Switzerland
France Monaco Taiwan
Germany the Netherlands United Kingdom
Greece New Zealand

If your country of citizenship participates in the visa waiver program, you may not need to apply for a tourist visa at a US Consulate or Embassy abroad. If you have been previously denied a United States visa, the Electronic System for Travel Authorization (ESTA) will automatically deny your ESTA submission and you will not be eligible to travel under the VWP even if your country participates in the program. Note: The House of Representatives and the Senate is presently in talks to approve a bill that will block individuals who have traveled to Syria, Iraq, Iran, or Sudan during the last 5 years from using the visa waiver program.

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