by Allison E.K. Wells, Esq.
On January 27th, President Trump signed an Executive Order temporarily suspending the U.S. admission of certain foreign nationals. Although the Executive Order has been temporarily barred by a federal appeals court, the future of the suspension is uncertain. Employers and foreign workers should exercise caution when a foreign worker needs to travel. If at all possible, foreign workers should avoid travel outside of the United States until the admission policies of the new presidential administration are settled.
Individuals from the seven countries on President Trump's Executive Order - Iraq, Iran, Syria, Libya, Somalia, Sudan and Yemen - should be most cautious. Since it is unknown if or when the Executive Order will be reinstated, an individual from these countries could get stuck outside of the United States. Even individuals holding lawful permanent residence (green cards) in the United States should avoid travel. Although the Executive Order indicates it does not impact foreign-born U.S. citizens or lawful permanent residents, initial implementation of the Order was inconsistent in this regard.
If foreign travel becomes necessary, employers and foreign employees should undertake careful planning prior to any departure from the United States. The employee should be prepared to obtain a new visa if he does not already have one, interact with Customs and Border Protection (CBP) and undergo additional scrutiny due to new executive policies, and ensure that he is admitted for the full and correct status.
(1) Plan ahead for visa stamping.
If the employee is traveling and has not already obtained a visa in his passport for his current status category, the employee must "visa stamp" or obtain a visa in his passport. To do this, the employee will need to visit a U.S. Consulate. The employee should visit the website of the U.S. Consulate nearest his foreign residence to determine country-specific processing and requirements.
To visa stamp, the foreign worker will need to complete the DS-160 visa application and a consular interview. Most U.S. Consulates require an interview for all visa applications, which must be scheduled in advance. Depending on the U.S. Consulate, there may be a waiting period of several weeks to several months for the next available appointment. Employers should assist workers in checking processing times and consider how this delay may impact the worker's travel outside of the United States.
At the interview, the worker will need to provide a variety of documents to the consular official. Most consulates require the following items:
· The original status approval notice.
· A copy of the petition filed on the worker's behalf.
· Completed DS-160 Visa Application.
· The worker's original passport, which must be valid for at least six months.
· An Employment Verification Letter detailing the worker's employment, including: title, brief description of job duties, location of work, and compensation.
· Two passport style color photographs of the worker.
· A visa application fee.
At the interview, the worker will be expected to know and articulate details of his employment in the United States. For example, he may be asked when he began work at the company, what the company does, the duties of his position, and how his skills are applicable to the position. The worker's explanation should be consistent with the employer's petition materials. Any discrepancies will create unnecessary troubles. The worker should study the history of his status and work with his employer to know the details of the petition.
(2) Prepare to interact with CBP upon reentry.
Even if your foreign worker does not need to visa stamp, he must interact with CBP and provide documentation of his position upon entering the United States. When the worker reenters the United States, he will have an interview with a CBP officer. While this process is normally fairly speedy, the new executive policies have increased generalized scrutiny of foreign travelers and caused delays.
The worker should be prepared to answer questions about his status, his ultimate destination, his position and company, and the expected duration of his stay in the United States. If the worker has any criminal history, including minor infractions or arrests without convictions, this should be discussed with an immigration attorney prior to traveling outside of the United States as it may cause difficulty upon reentry. The ability to articulately respond to questions and confidently converse with CBP will benefit the worker upon reentry.
In addition to speaking with CBP, the worker should carry evidence of his eligibility for entry, including:
· The original status approval notice.
· Copies of the worker's recent pay records to show continued employment;
· An Employment Verification Letter.
If the CBP officer is not satisfied, or has additional questions, the worker may be sent into a secondary inspection. Individuals from any of the seven countries impacted by President Trump's Executive Order should anticipate additional questioning and a secondary inspection. These workers should discuss their travel with an immigration attorney prior to departure and maintain contact with the immigration attorney during reentry.
(3) Double check records after entering to ensure continuous employment.
Once the CBP Officer is satisfied, the worker will be admitted into the United States. The CBP officer will place an admission stamp in the worker's passport, and will handwrite the date of entry, class of admission and the date of expiration. The worker should check these details. If there is an error, the worker should politely inform the officer. It is extremely important that the worker immediately check this information as it guides how long the worker may remain in the United States.
The CBP officer will also record the worker's admission to the U.S. through a computerized arrival record system known as the I-94 system. The I-94 system records the worker's name and passport information, date of entry, status, and expiration date. We recommend that the worker print a copy of the I-94 record after every entry to the United States. CBP has established a dedicated website, www.cbp.gov/i94, for accessing I-94 admission records.
Employers should request a copy of the I-94 from the foreign worker and update immigration counsel to ensure that the worker's status and validity are correct. Successfully completing this final component to foreign travel is essential to a foreign worker's uninterrupted employment.
For more information on foreign travel or assistance with preparing visa stamping or CBP documentation, contact Attorney Allison Wells in our Minneapolis Office at (952) 746-1700 or by email at firstname.lastname@example.org