Inspection and Entry at POEs and PFIs

Aliens seeking entry to the U.S. must have a classification consonant with their proposed activities. Each time they seek entry, they must undergo inspection by U.S. Customs and Border Protection (CBP). Often, CBP inspectors ask nothing at all, but they have enormous power and discretion to determine whom they will admit. If a CBP inspector decides that an alien is seeking entry in the wrong status, the inspector may detain the alien, deny him/her access to a phone, and put him/her on the next plane back. If the inspector suspects that the alien has committed a fraud or misrepresentation, the inspector has full, unreviewable discretion summarily to exclude that alien from the U.S. for five years. Aliens seeking entry through the Visa Waiver Program (VWP) are not subject to the five-year exclusion penalty, but refusals can create enormous problems down the road. Moreover, aliens who enter the U.S. with visas and then overstay, may, in certain circumstances, be relegated to forever obtaining their visas only from their home country consulate.

At the outset of the interview itself, the alien will be finger scanned per the US-Visit program. The considerations for the inspection interview are no different than those for consular interviews. Applicants for entry in O and P, or any status, should know the purpose of their entry, and their basic itinerary while in the U.S. Again, the issue of home country ties (214b) may arise. Applicants should have with them a copy of the underlying USCIS petition as well as a copy of the I-797 approval notice, whether they have a visa or not. CBP, in addition to its immediate security-related mission, is always on the lookout for aliens at risk of overstaying or violating their proposed visa classification.

CBP has special registration procedures under the National Security Entry Exit Registration System (NSEERS) at all U.S. ports of entry and pre-flight inspection locations for all citizens and nationals of Iran, Iraq, Libya, Sudan and Syria, as well as anyone else identified by CBP or by a consular officer at time of visa application.  NSEERS registration will entail a more detailed interview in “secondary inspection,” additional photos and fingerprints.

Assuming CBP chooses to admit the alien, it will stamp the alien's passport to indicate the visa classification and the date by which they must depart the U.S.  As of April 30, 2013, paper I-94 cards will no longer be issued at airports, and I-94 information will instead be accessible via an online portal, www.cbp.gov/I94. Those entering by land will continue to receive an I-94 card. We strongly recommend that all petitioners and aliens go online to print a hard copy of the I-94 card.  CBP has posted an FAQ regarding the recent automation of I-94 cards.

The departure date on the I-94, or stamp, is all-important. Aliens desiring to take advantage of the ten-day additional stay, for instance, may do so only if CBP grants that time on entry. They must ask for it, and double-check that they received it.  They should also be certain they can read the designated departure date and that they have in fact been admitted in the proper classification!  Otherwise, they must abide by the I-94 departure date. By that date, they must depart, if present on the VWP, or either depart or file for an extension of stay (whether in conjunction with a change of status or not). Do not count on there being exceptions of any kind to this rule. Indeed, an overstay of even one day can render the alien subject to another rule, 222g, under which the alien must return to his or her home country consulate to obtain ALL future U.S. visas. For frequent travelers, this can be devastating. For overstays of 180 days or more, the consequences are far more drastic.

It is important to know the terms of the I-94, not only because it represents an immigration "registration" document, but because it represents the potential proof that the alien departed the U.S. on time. The carrier transmits I-94 information from departing aliens to the USCIS computer system. If timely departure data for a given alien is missing, the system will show that alien as a possible overstay. If so, CBP inspectors will at some point in the future, often years later, discover that that the arriving alien has a past overstay. In these cases, CBP has been known not just to put the alien into "secondary" inspection, which can cause hours of delay (and great stress), but to handcuff and ship them back immediately, if they cannot prove they did not overstay. 

Finally, by agreement with the Department of State, aliens in the U.S. may travel to Canada and Mexico for 30 days or less, and, if they do not travel from those countries to a third country first, they may re-enter the U.S. solely on the basis of the remaining validity on their I-94. Their visa, if expired, will be considered revalidated to the date of entry. They must continue to have an unexpired, valid passport, however. Also, this exception does NOT apply if while in Canada or Mexico, the alien applies for another U.S. visa.  In that case, the alien must await the outcome of the visa application.

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