January 2002 Newsletter*(Updated 2009)
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 CBP (Customs and Border Protection) port of entry officials that
they wish to withdraw their application for admission, and depart the United
People who refuse to withdraw their application for admission
could 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.
Canadians applying for TN status who cannot demonstrate to CBP
port of entry officials that he or she satisfies the TN documentary requirements
should withdraw their application. CBP 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.
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
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 refer him or
Immigration and Nationality Act § 221(c) and State Department cable no.
97-State-115630 (June 19, 1997).
Effect Of Departing
The United States While A Petition Is Pending With The USCIS
Beneficiaries of petitions to extend H or L status
may depart the United States before the INS has completed processing of the
petition. If the H or L
beneficiary returns to the U.S. before the extension petition 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.
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.
* The purpose of this newsletter is to inform potential clients of the type of legal issues our firm handles. It is not intended to establish any attorney/client relationship, and we accept no responsibility for the accuracy of the information provided. We cannot discuss or clarify any of the information contained in our newsletters, except with our existing clients.
Copyright © 2002 by JAMES A. BACH