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THE LAW OFFICES OF RICHARD S. GOLDSTEIN London Office: 28 Grosvenor Street London W1K 4QR Tel: 020 7399 2530 Fax: 020 7399 2531
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REPORT ON U.S. CONSULAR PROCESSING PARIS, FRANCE AMERICAN CHAMBER OF COMMERCE, FRANCE VISA SEMINAR, NOVEMBER 30, 2011
SPEAKERS: • • •
MARK O’CONNOR – Chief of Visa Services, American Embassy, Paris ROBERT BRENNAN – Chief Non-Immigrant Visa Unit, American Embassy, Paris GARY SCHUMANN – Consular Officer, American Embassy, Paris
MODERATOR: RICHARD S. GOLDSTEIN, Senior Partner, Law Offices of Richard Goldstein (New York & London) & Vice-Chair of AmCham Legal Affairs Committee
(The contents of this report were prepared by Richard Goldstein. Both Consular managers who were present (Mr. O’Connor and Mr. Brennan) have reviewed the notes and made comments and suggestions that were subsequently incorporated, and both managers have indicated that the notes now appear to fairly and accurately reflect the presentation and main points of discussion).
U.S. Business Visa Adjudications for the French Business Community Introduction: No visa rules relate only to French nationals. Paris follows the same basic policies and visa adjudication procedures as elsewhere. The rules are complex and procedures occasionally change. Best to keep updated by regular reference to the Embassy’s website (http://france.usembassy.gov). Business visas: “Lots of letters”, sometimes described as an “alphabet soup”. Paris Embassy adjudicates approximately 67,000 non-‐immigrant visas per year. Of those, approximately a third are petition-‐ based and work-‐related visas (including investor visas). Roughly another third are dual-‐purpose B1/B2 visas (for business-‐related and tourist travel), although post does not have a mechanism to distinguish between these bundled categories, since over the 10-‐year validity of a B1/B2 visa the purpose of travel often varies between the two. And nearly a third of Paris adjudications deal primarily with students and exchange visitors. This is just an approximate breakdown of the major categories handled by post, which actually adjudicates nearly 60 different types of visa each year.
2 Visa Waiver Program (VWP): Important because it means that applicants who do not require visas to work in the US but wish to travel there on holiday or business trips can travel on the VWP. Approximately 1.3 million French nationals entered the US last year under the VWP, or about 95% of all French travellers. The law governing the adjudication of visas for the remaining 5% was established by the US Congress in the Immigration and Nationality Act (INA). The Department of Homeland Security (DHS), principally USCIS and CBP (including its Electronic System for Travel Authorization/ESTA program, which is required for VWP travel) regulates immigration and VWP travel, while the Department of State administers the US visa system. VWP is an authorisation to travel for either non-‐work business trips or tourism for up to 90 days. There are a number of conditions for qualification, reflecting bilateral reciprocity and other requirements. Currently nationals from 36 countries, including France, are able to use the VWP. Applicant passports must have prescribed security features (spelled out on the Embassy and other USG websites) and VWP travellers must arrive in the US by registered public carriers, including airlines and cruise ships. Very small percentage of VWP nationals DON’T qualify for VWP travel (typically those without passports that have qualifying security features; entering by yacht or private plane; or answering “yes” to any ESTA questions—which are the same questions on the traditional I-‐ 94 customs/immigration cards). What can you legally do in the US when you enter under the VWP? You can conduct business, buy and sell products, negotiate contracts, have business meetings, go to conferences/seminars, conduct independent research, including market research, and take steps to invest in a business. However, you cannot work or study under the VWP. People can run into trouble if they work or study after entering on the VWP, and this will often lead to cancellation of the privilege of using the VWP in the future – and may create credibility issues that could make it more difficult for them to qualify for a visa. To date more than 20 million people have travelled to the US with ESTA approval. ESTA refusal rates are under 1%. To enter on the VWP, nationals of eligible countries should go directly to the website https://esta.cbp.dhs.gov/esta/ (or through the ESTA link in the CBP website http://www.cbp.gov or the State Department's website http://travel.state.gov) and enter the information required for ESTA preliminary registration and approval. US embassies in VWP countries also have links to the official ESTA program on their home page. (Note that official USG web addresses always end in ".gov"; to avoid extra charges and scams, beware of parasite private websites ending in any extender other than ".gov".) What about the case of a business man who uses VWP to fly to the US 3-‐4 times every month all year long, for 2-‐3 days each time? How many days can a VWP traveller remain in the US, in aggregate in a year? How many trips can a traveller make under the VWP? There is no fixed rule. Decision made by CBP officials, who will tend to look at the context of the travel patterns by the individual and any factors which indicate that the individual might be abusing the VWP. If applicants are just using the VWP to essentially live in the US and are only leaving briefly when they have to in order to reset the three-‐month VWP clock, the immigration officer will look at
3 that carefully and determine whether further VWP admission is appropriate. Context is important and may depend on the guidance issued to the supervisors at Ports of Entry. Common sense is important. The usual way an applicant finds out that they are spending too much time in the US on the VWP is when the immigration officer warns the individual on entry. When in doubt, travellers who expect to spend considerable time in the US should not use the VWP and should instead apply for a visa before they encounter difficulties at a US port of entry. Secondary inspection is used to determine the context and they have a lot of information in the system and can check bags, etc. Visas – B-‐1, H-‐1, L-‐1, E: These are the main business visas. We will focus on these along with some other specialist visas. The B-‐1 visa gives travellers greater flexibility than the VWP. For example, they can remain in the US up to six months (if admitted for that duration on entry) and can request an additional extension of stay in the US for a maximum period of an additional six months; they do not have to enter on a public carrier; they may enter on older valid passports with fewer security features; and the visa process will generally identify and clear most issues that would have led to a denial of ESTA approval. H-‐1 visa: Is a temporary work visa that is intended to allow qualified individuals to work for a limited time in the US. The difference between this and the B is that the H is petition based and the H allows activities that are prohibited under the B visa. This means that the company hiring the worker must submit an application to USCIS and get it approved. Approval must be recorded in the electronic system before a petition-‐based visa can be issued. Quota of 65,000 H1 visas per year. Often the quota is used up very early in the year but not this past year due to the economy. The criteria to qualify include a bachelor’s degree or equivalent experience. Usually valid for three years but can be extended for a maximum of a total of six years in this status. L-‐1 visa: Also petition-‐based. This category is for intra-‐company transferees. Person must have at least one year’s experience of working for the company and it must be an executive or managerial role or one that requires specialized knowledge. There is no numerical quota for this category. E visas: Two kinds – E-‐1 treaty trader and E-‐2 treaty investor. France has a treaty with the US for both categories. E-‐1 is for substantial trade of goods or services. E-‐2 investor requires a substantial investment in a US company that creates employment. Paris is currently the fifth largest E-‐visa issuing post in the world. E-‐1 visa example: French company producing wine and sells more than 50% of its stock to the US would normally qualify. Must do more than 50% of business with the US – has to be a majority. Trade must also be substantial – no definition but must convince the Consular Officer that it qualifies as “substantial”.
4 E-‐2 example: French national investing in a small business in the US and they have to invest a substantial amount of money. Again, “substantial” not defined as it is a matter of judgement and discretion based usually on the nature of the business itself. Company should eventually employ people other than just the applicant and the business must be profitable. Revenues cannot be marginal, ie merely sufficient to support the applicant. Any reason why E-‐1s do not switch to E-‐2? What are the numbers? Paris adjudicated nearly 2000 E2 visas and 150 E1 visas in the last 12 months. An example of an E-‐1 is a horse breeder – no office in the US but due to cost of horses sold to US, they qualified for an E-‐1. C-‐1D visa: For crew workers on airlines and shipping companies. Lots of Air France applicants, also those working on cruise ships and merchant ships (e.g., tankers). I visas: Just for journalists. These often come in waves, in association with major international news events, e.g., 9/11 ceremonial events, the DSK affair, the Olympics. Os and Ps: Interesting categories – petition based for exceptional and/or internationally renowned people, athletes, businessmen, architects, actors, models, etc. Q visas: Disney’s own category! Paris Embassy processes a lot of visas for those workers going to work at Disney in the US. R visas: For religious workers going to the US to work in a religious function. How do I apply for a visa? For non-‐petition based visas, it involves completing the DS-‐160 online and then calling the Embassy’s call centre or going online to make an appointment to come in and have an interview. The wait time can vary substantially according to season. The current wait time – we are now in our peak winter holiday season – is approximately 21 days for B1/B2 applicants and four days for petition-‐ based applicants and students/exchange visitors. Must pay the visa fee and bring in a pre-‐paid domestic Chronopost envelope from the post office and then, if the visa is approved, it is usually sent out the next day and arrives within a couple of days. However, system issues not controlled by post can sometimes add up to two or three days to the process following adjudication. On what basis do we approve non-‐immigrant visas?
5 Each case is different. However, for B1/B2 and most visas that are not based on USCIS-‐approved petitions permitting work in the United States, there are essentially four points that the Officers keep in mind: 1. Is the person qualified for the type of visa being applied for? 2. Is the person really going to leave the US at the end of their stay there? 3. Does the person have strong ties (family, children, property, etc) to the country they are applying from? 4. Do the applicants have the intention of abandoning their residence? 5. Does the person appear likely to misuse the visa, i.e. use it for purposes not allowed by the category of visa applied for? For example, to enter on a tourist visa in order to work or study in the US. Criteria 2, 3, and 4 do not apply to most petition-‐based, work-‐related visa categories. H visa adjudication includes consideration of whether the person actually has the work experience and educational qualifications required. This also applies to the L visa category – does the person have the appropriate management/supervisory experience, do they have the necessary experience with the company? For E visas, the Officers look carefully at what is stipulated by the law. For E-‐2s they look at whether the substantial investment exists – is there a company in both the home country and the US? Sometimes the answer is “no”. Is the investment considerable? Is it marginal? Are they going to create jobs or is it just to provide a living for the investors themselves? These are some of the main factors involved. Websites: The websites for the Embassies, the DoS website and others also contain a great deal of useful information relating to visas. At some Posts it appears that preliminary investigation is done, particularly for E-‐2 applicants (including using Google, etc). Is this something that is done routinely? Post performs due diligence as appropriate and uses a number of tools to evaluate the claims of applicants and companies. Bona fide companies should have no problem with this; it is only potentially fraudulent companies that would likely have a problem with it. Is it your experience that most visa (Bs and petition based visas) interviews are over within five minutes? Yes that’s typical, but the Embassy does have a rule “never be in a rush to issue a visa if you are not comfortable”. It is not common, but an adjudicating officer may 221g a case and do further research and ask the applicant back for a second interview. Officers want to make the best decision possible and taking extra time to do that is not an issue for the Embassy. What happens if a visa is refused?
6 No mandatory wait time for a second interview following a refusal. DoS prefers not to impose time limits following a refusal. There is no appeal process as such: the de facto appeal mechanism is to simply apply again, and a different consular officer will adjudicate the subsequent application. However, if you think the consular adjudication was based on a misinterpretation of applicable law, you are welcome to write a well-‐reasoned letter and email the Embassy. The Embassy does read the emails that come in. On rare occasions, if it can be established that a legal error was made in an adjudication, a consular officer may re-‐interview the applicant and re-‐adjudicate the case. However, this is very rare and the standard appeal mechanism is to reapply, presenting the relevant evidence in support of the application. Reapplication is also generally a faster way to present one’s case; the back-‐and-‐forth correspondence involved in requesting re-‐adjudication of a case almost always takes more time at this post than simply re-‐applying. Embassy will routinely issue visas on re-‐applications if the subsequent application is persuasive. The consular supervisors at the Embassy are required to review decisions made by the adjudicating officers. The supervisors review the justification for the officers’ decisions in the case records. Brief explanation of administrative processing: Certain applications require further administrative processing. This additional processing is not done at post. It can be based on a number of factors that post is not in a position to discuss. Washington knows it is a very frustrating process and they try to make it as quick and as fair as possible for every applicant. It has been known for cases to be turned around in less than 48 hours, though the time involved is impossible to predict for any particular case. The evidence is clear that administrative processing times overall have improved. Embassy does not take admin processing lightly. Officers realise it is frustrating and can cause serious inconvenience for the applicants. They take the decision where law and regulation require it. Officers will frequently consult with consular supervisors to determine whether a case requires it. Recent change in DoS policy regarding annotation of B-‐1 in lieu of H-‐1 visas? Paris Embassy’s recent communication with the Consular Bureau indicates that there has been no change in Department policy with regard to this annotation. A decision not to enter this annotation appears to be at the discretion of the post concerned. DoS indicated to Paris that the annotation was primarily an aid to CBP officials at ports of entry and that post could choose whether to enter the annotation. Paris sees very few of these cases and there are no significant workload issues involved in entering this annotation. There continues to be a reasonable justification for the annotation, and believes that not entering the annotation might cause problems for the bearer on entry, since if a CBP Inspector at a Port of Entry has any doubts—for example, if a B1/B2 visa holder tells the inspector he is entering the US to work, the traveler might be sent to secondary inspection. Post feels the annotation tells the Inspector immediately what he needs to know and therefore tends to facilitate admission at primary inspection. Without the annotation, post believes there is a greater chance the visa holder might be sent to secondary inspection since inspectors at primary inspection may not feel they have the time to access and review information in the Consular Consolidated Database (CCD) to determine that a particular B1/B2 traveler is in fact qualified to enter as a B1 in lieu of H1. How do you deal with ineligibilities?
7 Applicants must put any conviction/arrest/other ineligibility on the DS-‐160 otherwise their credibility may be called into question. Officers will know if the applicant has been arrested/convicted, regardless of when and where – the “system is pretty robust” and more keeps getting added. Example – there was a case where a lady had been arrested in the US but didn’t disclose it, it showed up on the system, the woman continued to deny it, her clear lack of credibility was a significant factor in the decision to refuse her under 214b. In most cases, if it is not considered a felony in the US, it is not a visa ineligibility. “For visa purposes, the failure to disclose can sometimes be more serious than the offense itself” because it raises serious questions regarding the applicant’s credibility. For DUIs – if there has been one arrest in the last five years, applicant MUST be sent to the panel physician for assessment. Two or more arrests in the last ten years, MUST be sent to the panel physician. Applicant will usually get the visa but at a minimum it will add to the delay and cost for the panel physician. Questions: How long are corporate E-‐2s taking? Embassy essentially triages E cases and therefore some take more time and some take less. Between 6 – 12 weeks is a reasonable guideline – the average E case probably takes closer to 12 weeks to process. However, the Embassy fast-‐tracks over 90 major pre-‐qualified companies. Once the submitted application is complete, it is usually just a few weeks. It depends on the case and the Embassy’s workload. Is it possible to pre-‐adjudicate B visas? No, the first stage is the submission of the DS-‐160 form. Must follow the standard procedure, it is not possible to pre-‐adjudicate. The procedure allows the Embassy to have full information on the applicant and therefore adjudicate the application properly. How much is the fee for an H petition? $325 filing fees, either $1,500 or $750 (depending on company size) plus a further fee of $500. Exact figures will be on the various websites. [Note: These figures seem accurate, but they were not provided by the Embassy participants.] Do you check tax records? Yes, in IV cases, sometimes in NIV cases. There was a recent IV case where the wife was declaring one thing to one agency and something else to another agency. In NIV cases this kind of significant discrepancy may lead to 221(g) and then delay and additional costs. Can also lead to denials in the most serious cases. Embassy staff question
8 How easy is it to fill out an ESTA form? It takes only a few minutes to fill out the form, and the response is very rapid—typically within a few minutes. There are many fake sites out there which can cause problems. The first several links on Google are not the official ESTA site. The listing order depends on the number of users using the sites. This is a problem because the “parasite” sites typically charge significant unnecessary fees for filling out the applicant’s ESTA form. The websites of the Embassy, the Department of State, and CBP as well as the Embassy’s outreach program try to make it as clear as possible which is the real ESTA site. It is irritating and frustrating but there does not appear to be a definitive legal solution at this stage, though reportedly action has been taken against some sites for egregious misrepresentation and failing to provide the services promised – i.e., where they did not even fill out the ESTA form for their clients despite being paid for the service, or where there was evidence that the site had colluded in selling personal/financial information obtained from the applicant.