American Immigration News in 2009


ESTA RULES FOR EUROPEAN TRAVELERS

For years, visitors from certain foreign countries have been able to travel to America without first getting a formal Visa sticker placed in their passport. Implemented in 1998, the "Visa Waiver Program" (VWP) has allowed for visitors of several countries to come to America for tourism or business purposes for up to 90 days without getting a Visa put in their passport. During 2007, more than 15 million visitors from VWP countries arrived in the United States.

As of January 12, 2009 America's new ESTA program requires Visa Waiver Program visitors coming to the U.S. for tourist or business purposes via a plane or ship to "register" online before entering the United States to see if they pose a law enforcement or security risk to the U.S. ESTA is not required for land crossings. Officials are asking that the ESTA registration be done at least 72 hours prior to leaving, but theoretically it is possible to register at the last minute. An ESTA Travel Authorization is free, valid for 2 years, and valid for multiple entries.

Here are some Frequently Asked Questions (FAQs) for ESTA Travel Authorization:

What Countries Are in the Visa Waiver Program?

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

Where Do I Apply for an ESTA Travel Authorization?

A website, operated by the American government, is where you register for ESTA: esta.cbp.dhs.gov. The ESTA information you submit via the computer is compared with certain American law enforcement databases and then either approved or denied. Foreign travelers will not be able to submit ESTA applications at American airports after arriving or at a U.S. Embassy in their country.

What if I Don't Have Plans to Travel to the U.S. Yet?

VWP travelers are not required to have specific plans to travel to the United States before they apply for an ESTA Travel Authorization. As soon as VWP travelers begin to plan a trip to visit the U.S., they are encouraged to apply for travel authorization through the ESTA website. Applicants are not required to update their destination addresses or itineraries if they change after their ESTA Travel Authorization has been granted.

Does the ESTA Travel Authorization Guarantee Entry to the U.S.?

An ESTA Travel Authorization only authorizes a traveler to board an airline or ship for travel to the U.S. under the Visa Waiver Program. After they arrive, travelers who obtained an ESTA Travel Authorization may still be denied entry (also called "admission") at a U.S. port of entry, such as an American airport. An approved ESTA is not a guarantee of admissibility at an American airport. In all cases, the American airport officers make the final determination whether a foreign traveler can enter the U.S. or not. You still have to establish to the satisfaction of the inspecting officer that you are entitled to be admitted to the U.S. under the Visa Waiver Program.

Can I Change My Travel Itinerary?

It is possible to change an itinerary on an existing ESTA Travel Authorization; ESTA is designed so that you can update parts of it at any time. Travelers who did not get an ESTA approval may be denied boarding by the airlines, experience delayed processing, or be denied admission to the U.S. at the American airport.

What If I Already Have a Valid B1/B2 Visitor Visa?

While the ESTA Travel Authorization is completed online with no interview, there are Visas that require a U.S. Embassy interview. The Visa process has separate procedures, which generally require an appointment, travel to a U.S. Embassy, an interview with a Consular Officer, processing time, and the payment of an application fee. If a foreign national already went to the U.S. Embassy and has a valid B1/B2 Visitor Visa pasted in their passport it is not necessary to get an ESTA Travel Authorization because the traveler will be entering with a B1/B2 Visitor Visa and not through the Visa Waiver Program. Keep in mind that an approved ESTA Travel Authorization is not a Visa.

Can I Re-Apply for an ESTA Travel Authorization if Denied?

Yes, but you must wait at least 10 days to reapply and your circumstances must have changed. Unless there is a change in a substantive fact, re-application will not change the result. Keep in mind that applying for an ESTA Travel Authorization with false information can cause a foreign national to be permanently barred from ever entering America. The ESTA system is designed to try to prevent individuals from changing and manipulating an ESTA entry until they receive an approval.

What If I am Denied an ESTA Travel Authorization and Have No Changed Circumstances?

There are three types of responses to an ESTA application; approved, pending or travel not authorized (denied). Applicants who receive a "pending" response are advised to check the website 72 hours later. Applicants who are denied will be required to go to a U.S. Embassy to apply for a formal nonimmigrant visa, such as a B1/B2 Visa, which may take months. Can a Traveler Find Out the Reason Why an ESTA Application was Denied? The U.S. Dept. of Homeland Security has stated that travelers may contact the DHS Travel Redress Inquiry Program (DHS TRIP at dhs.gov) but there are no guarantees that information about a denial will be divulged. U.S. Embassies and Consulates are not required to provide details about an ESTA denial nor resolve the issue that caused the ESTA denial.

What If I Have a Criminal Record?

Only those qualified to travel under the VWP are eligible to pre-register through ESTA. Persons who have been arrested and/or convicted are generally not eligible for VWP and probably require a formal Visa, such as a B1/B2 Visa, to travel to America. If a foreign national has received tickets for speeding (which don't usually result in an arrest or conviction) they are probably still eligible for the VWP and ESTA. If a foreign traveler has been denied entry into or deported from the U.S., they require a formal Visa.

Do Any Other Countries Have a Similar Program?

Australia has a program called the Electronic Travel Authority (ETA) that mandates travelers to submit an ETA application electronically through a website requesting permission to travel to Australia. Airlines may refuse to accept passengers who do not have either an approved ETA or Visa to enter Australia. How Long Will the ESTA Application Data be Stored? Who Can Access It? The ESTA Travel Authorization is valid for two years or until the traveler's passport expires, whichever comes first. The American government will maintain the information for at least 15 years to allow retrieval of the information for law enforcement, national security, or investigatory purposes. Information submitted through ESTA can also be shared with any U.S. government organization.

What Information Does the Airlines Get?

Airlines will receive confirmation of a passenger's ESTA status visa the "Advance Passenger Information System" (APIS) which shows whether the ESTA authorization has been granted for a Visa Waiver Program traveler. It is recommended that the traveler print out the ESTA application approval in order to maintain a record of their ESTA application number and to have confirmation of their ESTA status.

What About Children?

Accompanied and unaccompanied children, regardless of age, are required to obtain an independent ESTA Travel Authorization. What if a Mistake was Made on the ESTA Application? The ESTA website will ask applicants to review their application before submitting it. Also, there is an update function for certain information such as email address, telephone number, or flight information. If an applicant makes a mistake that cannot be "updated," he will need to submit a new ESTA application.

What if I Only Have a Connecting Flight Through the U.S.?

Visa Waiver Program visitors who have a connecting flight in the U.S. are required to either have ESTA Travel Authorization or a Visa from a U.S. Embassy in their passport to travel through the U.S. even for a one hour stop. If a traveler is only planning to stop in the U.S. en route to another country, the traveler should enter the words "In Transit" and his final destination in the address lines under the heading "Address While In The United States" on the ESTA application.

What Are the Questions on the ESTA Travel Authorization Application?

The traveler must provide (in English) biographical data including name, birth date, country of citizenship, country of residence, email address, sex, telephone number, passport information, destination address in the U.S., travel information (round trip airline ticket, flight number and city where you are boarding) as well as questions regarding communicable diseases (chancroid, gonorrhea, granuloma inquinale, HIV, leprosy, lymphogranuloma venereum, syphilis [active], tuberculosis [active], and others), physical or mental disorders, drug addiction problems, arrests, convictions, past history of visa cancellation or denial, and prior deportations from the U.S. The traveler will also be asked whether they are seeking work in the U.S., have ever been deported or tried to get a visa by fraud or misrepresentation. The traveler will be asked if they have ever detained a child of a U.S. Citizen granted custody of the child, and whether they have ever asserted immunity from prosecution.

Do I Select "Business" or "Pleasure (Tourist) at the Airport Port of Entry?

After the ESTA Travel Authorization is granted, the foreign traveler will be interviewed by government officers at the first American airport they land. The officer will ask what the foreign traveler will be doing in America and the questioning can take up to four hours in a detained setting called "secondary inspection." The officer may ask the traveler "what else are you doing in America?" repeatedly to try to get "the real" answer. If the traveler is only going to be a tourist, they are not allowed to do any business, including meeting with any attorneys, applying for a bank account, meeting with real estate agents, or other business consulting activities. Even though the traveler is going to conduct just one business meeting while in America, they are required to report it and enter as a business visitor. The business visitor is allowed to participate in tourist activities, but the tourist visitor is not allowed to participate in any business activities. Therefore, if any business might be conducted while in America, it is best to tell the government officers about it at the airport to avoid being accused of lying, put immediately on a plane back to your home country, and barred from America for life.

What Else Do Can the Airport Officers Make Me Prove After I Land?

The airport officers will ask the traveler proof of a foreign residence (address on foreign driver's license), whether their intention is to depart at the end of the visit (round trip airline ticket), whether the traveler has a job (letter, paystub, business card) and family in their home country, (marriage certificate, childrens' birth certificates), and whether the traveler has the money to travel around America (bank statement or credit cards with bank letter showing credit limit). The airport officers are also required to ask where the traveler will stay in America (hotel reservations or friends/relatives' homes) and have been known to pick up the phone to verify all of the aforementioned information.

Do I Still Have to Go Through the "US-VISIT" Program at the American Airport?

Foreign travelers arriving at American airports and seaports must still be photographed and fingerprinted every time they enter the U.S.

Who Should I Ask For Help to Fill Out the ESTA Application?

The information a traveler provides on the ESTA application can remain in their file with U.S. authorities for a minimum of 15 years - probably longer. If a foreign traveler has some questions about how to answer the questions so as not to be permanently barred from America, it would be prudent to them to pay for a legal consultation with an American Immigration Attorney who is a member of the American Immigration Lawyers Association (AILA). Beware of unauthorized private websites that offer ESTA application assistance for $49.99 - they are usually not authorized to practice immigration law and are asking travelers to pay for a copy of the application questions, which are free on the dhs.gov website.

If I Am Denied the ESTA Travel Authorization Will it Effect My Ability to Obtain a Visa at the U.S. Embassy?

When the ESTA Travel Authorization is denied, the foreign traveler must make an appointment at a U.S. Embassy in their country to apply for a formal Visa. The U.S. Embassy is operated by the U.S. Department of State and there are no expedited procedures for those who have been denied ESTA Travel Authorization. Because the ESTA program is so new, it is impossible to predict how badly a denial of the ESTA Travel Authorization will impact a traveler's application for a Visa at a U.S. Embassy or impact their future travel to America in general. American Immigration Attorneys are in close contact with their foreign clients and will share the denial information with each other starting in January 2009. Currently there are no government policies regulating this area of the law, or opportunities to appeal a denial.

When Is the a "New" ESTA Travel Authorization Required?

A new ESTA Travel Authorization is required during the two years if (1) the traveler is issued a new passport (2) the traveler changes his name (3) the traveler changes his or her gender (4) the traveler's country of citizenship changes or (5) the circumstances underlying the traveler's previous responses to any of the ESTA application questions requiring a "yes" or "no" response have changed (such as a new arrest).

Can an American Immigration Attorney, Travel Agent or Employer Fill Out the ESTA Application?

A third party, such as a relative, travel agent or American Immigration Attorney, is permitted to submit an ESTA application on behalf of a VWP traveler. Be aware that the traveler is still responsible under the law for the answers submitted on his or her behalf by a third party.

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Can I Be Searched in the American Airport? Am I Entitled to Legal Representation?


While being interviewed at the American airport, all luggage (even locked bags) can be searched, as well as the traveler's body and his/her cell phone (including text messages and phone numbers) and laptop (including hard drive). The officers may "google" a traveler's name and check out their myspace, facebook or hyves pages. The traveler is not allowed to be represented by an attorney or even call their attorney while in "secondary inspection." Bathroom visits, water and food may be limited, so it is best to prepare for such an occasion while still on the plane before landing.

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E-2 VISA INFORMATION

The E Visa category was established to honor treaties between the U.S. and other countries. The foreign national's country must have a treaty with the U.S. that allows for E-2 Treaty Investor Visas. As you may already know, it is possible to enter the U.S. with a B1 Visa and transfer to an E-2 Visa without leaving the United States.

If the E-2 visa is granted, it is granted for an initial 2 year period. This period can be extended indefinitely - so long as the person affirms that he will leave the U.S. when the period of authorized stay ends. The purpose of the Visa is to oversee your investment in the U.S. Because this Visa is a "nonimmigrant" visa, there is no "green card" (permanent residence status) granted with this visa.

Application for an E category visa can take one month through application at a U.S. Consulate (Embassy) abroad, or 30-90 days through the California USCIS Service Center located in Laguna Niguel, California. New filing procedures for E Visas went into effect in December of 1998, so care must be taken to follow the new regulations.

E category visa holders do not need to maintain a foreign residence during their stay in the U.S., so long as they affirm their intention to leave the U.S. when their period of stay expires. As discussed above, the E-2 visa is renewed every 2 years with a limitless number of extensions allowed.

The E visa category can be used by you, your family members, and for employees you bring with you. You must fulfill a key role with the company (either as the person who develops and directs the investment, or as a "qualified manager" or "specially trained employee"). However, the USCIS expects the investment to also create job opportunities for U.S. workers - U.S. workers should be hired within 1 year of your admission to the U.S.

The investment may involve either:

  • Creation of a new business;
  • The purchase of an existing business; or
  • The continuation of an existing business.
  • The U.S. company, if new, may not yet be in operation,but must be "active."

For example, uncommitted funds in an American bank account do not represent an "active" investment unless enough other evidence of business activities exist to show that the funds are to be used in the routine operation of the business (payment of bills, purchase of inventories, or purchase of equipment).

Even when an investment has occurred, only those transactions in which you are personally at risk (in the event of a business failure) can be counted. For example, "qualifying investments" include loans secured by the investor's house, unsecured loans granted on the basis of the investor's signature, and the value of purchased equipment, inventory and property.

The USCIS has recently confirmed that there is no minimum dollar amount necessary in order for the investment to be considered "substantial." In order for an investment to be considered "substantial" it must meet one of two tests:

  • It must be proportional to the total value of the particular enterprise in question; or,
  • It must be an amount normally considered necessary to establish a viable business enterprise of that type.

In other words, there are many new cases and tests the USCIS utilizes to measure "substantial."

For example, an investment of well under $50,000 to open a service business (automotive design firm that supplied skilled designers to U.S. auto manufacturers on a consultant basis) was recently approved. The E visa is clearly open to investments in businesses requiring very little capital for start up expenses, since the principal investment is the knowledge and skill of the employees.

One of the tests utilized by the USCIS is based on a sliding scale. Under that scale, the larger the total value of the business or the cost to start up the business, the smaller the percentage of the total investment the investor must put up to meet the "substantiality" requirement. For example:

Total Value of Business
(or Cost of Start Up)		 Minimum Percentage
of Investment
Less than U.S. $500,000 75%
U.S.$500,000 to $3,000,000 50%
More than U.S. $3,000,000 30%

Many investors come to the U.S. on a B1 (business start up) visa to set up the business. You cannot be paid by the new U.S. company while you are on the B1 visa. You may be granted extensions of the B1 visa in increments of 6 months at a time.

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L-1 VISA INFORMATION

What is the nature of the L-1 visa? How long is it valid?
The L-1 visa facilitates the transfer of key employees (and their family members) from a foreign corporation to a U.S. branch, parent/subsidiary or affiliated entity. The purpose of the visa, also known as the intra-company transferee visa, is to give U.S. corporations the ability to bring top level managerial or specialized employees into the USA.

The entity in the USA can be a branch office of a foreign company, or it could be a parent/subsidiary. To establish the parent/subsidiary relationship one entity must own more than 50% of the shares of the other, and must also be able to control it. The U.S. and foreign entity can also be siblings (or affiliates), i.e., they are owned by the same owner or same group of owners in similar proportions. The employee being transferred to the U.S. branch office must have worked in an executive, managerial or specialized knowledge capacity for the foreign entity for at least one year in the past three years and must be sponsored to work in the same capacity for the U.S. entity.

The executive or managerial L-1 visas is valid for seven years and it is convertible to permanent residence before this time period expires. The specialized knowledge L-1 visa is valid for only five years, and cannot be converted to permanent residence. However, a person under the specialized knowledge L-1 visa would still be able to obtain permanent residency through other avenues.

For new entities, the L-1 visas is issued for one year and then the petitioning entity must again re-apply for another two years.

What is the minimum investment requirement?
There is no minimum investment requirement. However, there must be enough revenues to pay the salary of the company's officers and to support a lease and other expenses. Essentially, the U.S. entity must be able to support the employee in a managerial/executive or specialized knowledge capacity and provide evidence that the company has enough money to pay the salary.

What kind of company can open a branch of subsidiary in the USA under the L-1 visa?
Any type of corporate organization is recognized, so long as the qualifying relationship is created.

What is the time-frame for establishing a branch or subsidiary and obtain the L-1 visa?
These can be organized in a week. The L-1 visa takes about two months or longer to be approved after it is filed with the USCIS.

What is the nature of the business that is legally permissible under the L-1 visa?
All kinds of businesses are permissible, so long as they are not illegal. The U.S. entity does not even have to be in the same line of business as the foreign entity.

Does the L-1 visa enable the principal applicant to bring his family members into the U.S. under this visa?
The principal applicant's spouse and minor children can accompany the principal on L-2 dependent visas. An individual in L-2 status can study or work in the U.S. as a dependent.

How long does the company/firm have to be in business in the country of origin?
At least one year, to establish that the applicant has worked in the qualifying capacity for one year.

What is the documentation requirement for L-1 applications?
It should be shown that the foreign company is a viable entity. Its memorandum/articles of association or partnership deed, recent balance sheets, tax filings, payroll evidence, brochures, government permits for exports are essential. There is also a need to establish the existence of a qualifying entity in the USA. Therefore a branch, subsidiary or parent should be organized in the USA. The company's representative should have done this, as well as acquired a lease for business premises. It is essential to show imminent business activity. A description of the representative's job duties in the foreign company and prospective duties in the USA is also required.

Do I need to obtain the help of other professionals?
It is imperative for the foreign national to seek the advice of corporate counsel and seek tax advise from a certified public accountant. The U.S. entity should be structured so as to minimize tax liabilities in the U.S. and foreign country. After the corporation is established, it must also file periodic reports with the IRS and file federal, state and local taxes.

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