January 2002 Newsletter*   (Updated October 2005)

    By James A. Bach, Esq.

Expedited Removal For Failure To Obtain The Proper Visa

People who attempt to enter the United States without first obtaining the proper visa or border crossing card may be subject to expedited removal and could be permanently barred from reentering the United States.  To avoid the harsh consequences of expedited removal and a finding of inadmissibility, the applicant should inform INS [now USCBP] port of entry officials that they wish to withdraw their application for admission, and depart the United States immediately. 

People who refuse to withdraw their application for admission will be taken into custody and placed in expedited removal proceedings.  A charge of fraud or material misrepresentation may result in a permanent bar from entering the United States.

 Expedited Removal For Failure To Satisfy TN Requirements

Canadians applying for TN status who cannot demonstrate to INS [now USCPB] port of entry officials that he or she satisfies the TN documentary requirements should withdraw their application.  INS [now USCPB] officials will place applicants into an expedited removal proceeding if he or she believes the applicant is an intending immigrant, or is seeking admission by fraud, or willful and material misrepresentation.  (Inspectors Field Manual, Ch. 15.5 section (f)(10)).  This development is one more reason why eligible professionals in TN status should change to H-1B status as soon as possible.  

New Faster H-1B LCA

The Department of Labor (DOL) has announced that, starting next year, Labor Condition Applications (LCA's) may be filed with DOL via its Internet web site.  This system will automatically determine, within minutes, if the submitted LCA is certified or denied.  Once DOL grants certification, the LCA can then be printed and signed.  The H-1B petition may be filed with a copy of the signed certificate (Form ETA 9035E), thereby eliminating delays, which have been as much as three to four weeks in 2001. 

Minimizing Reciprocity Fees

Some visa applicants must pay a “reciprocity fee” in addition to the $100 visa issuance fee.  The amount of the reciprocity fee (if any) is based upon the visa category and applicant’s country of nationality or permanent residence.  The fee is equal to the fees charged U.S. citizens to obtain the same visa to visit the subject country.  The Reciprocity Fee Schedule may also limit the maximum validity date of some visas.  Before applying for a visa, the applicant should review the Reciprocity Fee Schedule, which is located at the State Department’s web site http://travel.state.gov/visa/reciprocity/index.htm.

The applicant can minimize the reciprocity fee by choosing to pay the lower reciprocity fee of either their country of citizenship or their country of permanent residence.  For example, a citizen of India who is a permanent resident of Thailand seeking a H-1B visa may choose to pay the lower reciprocity fee for Thailand, rather than the reciprocity fee for India.  If the consular official is unaware of this rule, the applicant should cite Immigration and Nationality Act § 221(c) and State Department cable no. 97-State-115630 (June 19, 1997) as authority. 

Effect Of Departing The United States While A Petition Is Pending With The INS [now USCIS]

Recently, the INS [now USCIS] has confirmed that beneficiaries of petitions to extend H or L status may depart the United States before the INS has completed processing of the petition.  Should the H or L beneficiary return to the United States before the petition to extend is approved, the I-94 card which he or she received upon entering the United States would be considered extended if the pending petition to extend H or L status is granted by the INS.

Petitions to extend B-1, B-2 or petitions to change status are considered abandoned should the beneficiary depart the United States while the petition is pending.

  INS [now ICE] Will Share Its Database Of Deported Individuals With Law Enforcement

On December 5, INS Commissioner James Ziglar announced that INS will send the names of more than 300,000 immigrants who have been ordered deported to the FBI for entry in the National Crime Information Center (NCIC) database.  Once these names are entered in the NCIC, immigrants who were ordered deported would be subject to apprehension if they were stopped by police for some reason, such as a traffic violation.