Kramer, Elkins & Watt

Visas 101 by Guest Blogger Carmel A. Capati

Visas 101 by Guest Blogger Carmel A. Capati

 

visa

Q: What is the process for someone to get a visa? What types of background checks are done? Is it difficult? Does it depend on the type of visa?

A: The short answer is it is more difficult for some than others to get a visa and getting a visa does not necessarily mean a person will be allowed to enter the US.

Coming to the US is not easy. It usually requires a person to first obtain a visa at a US embassy or consulate in their home county. If you recall from A Glimpse at Immigration, we defined a visa as “an official endorsement, obtained from an overseas US consul, certifying that the holder has been examined and is permitted to seek admission to the US at a designated port of entry.”

The US offers many, many different kinds of visas for which someone might be eligible to apply (e.g. student, investor, skilled worker, religious worker). The type of visa one is seeking will determine where the process is initiated, the levels of clearances a person has to go through, and the number of agencies involved in the entire vetting process. For example, the process of obtaining a visa always involves the State Department and Homeland Security but could also involve the Labor Department and Health and Human Services. The two main categories of visas are immigrant visas which are visas that allow a person to stay in the US on a permanent basis and non-immigrant visas which are visas that allow someone to stay in the US for a temporary time or to fulfill a short-term purpose.

For citizens of certain countries, coming to the US is a little easier. In 1986, the US implemented the Visa Waiver Program (VWP) which waives the requirement for individuals of 38 countries* to get a visa. Nationals from countries with membership in the VWP are able to travel and stay in the US up to 90 days for purposes of tourism or business without a visa, provided other requirements are met. In return, those same VWP countries must afford US citizens the ability to travel to their countries for tourism or business for the same amount of time without having to get a visa as well. Over the years, the VWP has evolved into a security partnership among allies that allows the US to monitor and prevent bad actors from entering the country. Nationals from VWP countries must apply for travel authorization through the Electronic System for Travel Authorization (ESTA).

Once a person gets a visa, it is not a guarantee she will be admitted to the US. Under the Immigration and Nationality Act or INA, there is a presumption that all people who want to come to the US are immigrants. (INA 214(b)) Therefore, an individual with a valid non-immigrant visa (e.g. tourist) who presents herself at the border has the burden to prove she is in fact a non-immigrant who does not intend to stay in the US permanently.

If you recall our terms from A Glimpse at Immigration, admission means “the process of permitting someone to be physically and legally in the US.” Admission is part of the inspection process a person must go through when presenting himself at an entry port. It entails being “inspected” or interviewed by a Customs and Border Patrol (CBP) agent.

Upon inspection at a port of entry, several outcomes could occur which many of us tragically witnessed unfold at airports around the country just last month with President Trump’s Executive Order and travel ban. I will save that segment for a follow-up blog incorporating practical examples.

*The countries currently included in VWP include Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and United Kingdom. It should be noted that nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, Syria, Libya, Somalia and Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country) are ineligible to come to the US under the VWP. In addition, nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria are ineligible for a visa under the VWP.

For more information about visas or immigration in general, contact Attorney Capati at the Apeiron Law Group, 313 Price Place #108C, Madison WI 53705, www.apeironlaw.com. Attorney Capati can be reached by email at capati@apeironlaw.com or by phone at 608-886-3906.