To enter the United States legally, any foreigner who is not a naturalized American citizen or green card holder must obtain a visa before entering the country. However, requirements do not end there, there are legal circumstances that can prevent a visa holder from staying in or re-entering the country.
A citizen of a foreign country who wants to enter the U.S. must first obtain a visa in conjunction with the U.S. Department of State. One can obtain a non-immigrant visa or an immigrant visa. Having a visa allows travel to an American port of entry, airport, or land border crossing. The traveler then must get permission from the U.S. Department of Homeland Security (DHS) and the Customs and Border Protection (CBP) to further enter the country.
Can a Foreigner Enter the U.S. Without a Visa?
Foreign nationals enter the U.S. either legally or illegally. Lawful entry occurs when a person has been granted a visa through proper channels. Unlawful entry occurs when a person comes to the U.S. without a visa. How a person enters the country can affect their visa status. A visa holder should be aware of the following circumstances that could affect their visa status or ability to enter or re-enter the country:
If a foreign national is found to be in the U.S. illegally, they cannot obtain a visa for a set period. If they are unlawfully in the U.S. for more than 180 days but less than a year, they cannot seek admission into the U.S. for three years after removal. If they are unlawfully present in the U.S. for one year or more, they cannot seek admission into the U.S. within 10 years of removal.
If a visa holder was previously removed from the U.S., they will not be able to re-enter for a certain time. If they were removed for violating the Immigration and Nationality Act (INA), they cannot re-enter the U.S. for five years. If they were deported from the U.S. for a second or subsequent time, or if they were convicted of an aggravated felony at any time during the original removal, they cannot seek admission into the U.S. for 20 years.
It is important to note that there may be exceptions to the entry and removal rules for situations involving:
- Asylum seekers
- Family unity
- Battered women and children
- Victims of human trafficking
All visas have an expiration date. When a visa expires, the person will need to extend their visa. They cannot extend their visa for a purpose different from the original. For example, a student visa cannot be extended into a tourist visa. The visa holder would need to reapply for the visa they wish to obtain. A visa will be void if the holder stays in the U.S. past their authorization date without getting an extension.
The applicant must file the request at least 45 days before their visa expires to extend a stay. Visa holders can apply for an extension if they:
- Were lawfully admitted into the U.S. with a non-immigrant visa.
- Have a non-immigrant visa status that is still valid.
- Have not committed any crimes that make them ineligible for a visa.
- Have not violated conditions of admission.
- Have a valid passport that will remain valid for the extension period.
Visa intent matters. Approval for visa extension depends on the person’s reason for wanting to stay in the U.S. and their ability to prove a non-immigrant intent; meaning they still plan to leave the U.S. and will not try to live in the country permanently. If they intend to live in the U.S. permanently, they have an immigrant intent, and their visa will not be extended.
The U.S. attorney general can waive a foreign national’s unlawful presence if the person is the spouse or child of a U.S. citizen or legally admitted permanent resident. A person can receive a dependent visa if they are the spouse or child of a U.S. citizen or legal permanent resident. If a non-citizen spouse is in the U.S. on a dependent visa and gets divorced, the visa will be legally invalid. A return to the U.S. will not be possible until they obtain a new visa. There are specific rules that apply to dependents, asylees, and other specific classes. A lawyer can help with these complex laws.
Section 237 of the INA outlines crimes for which a legal alien can be deported:
- Crimes of moral turpitude within five years of admission to the U.S. or within 10 years of being granted lawful permanent resident status. A crime of moral turpitude generally involves dishonesty, such as fraud, or conduct that is vile or depraved and shocking to a reasonable person.
- Multiple criminal convictions for crimes of moral turpitude.
- Aggravated felonies.
- Crimes involving controlled substances.
A charge for driving under the influence (DUI) could be grounds for ineligibility for admission into the U.S. under these extenuating circumstances:
- Conviction of a crime of moral turpitude.
- Convictions for two or more criminal offenses where the aggregate sentences to confinement were five years or more.
- Drug abuse or addiction.
- Conviction for a crime involving controlled substances.
The U.S. Department of State has issued guidance that current visa holders who are arrested for DUI should have their visas immediately revoked, requiring reapplication. If one has a problem with their visa status, they should contact an immigration lawyer right away.
Philadelphia Immigration Lawyers at Surin & Griffin, P.C. Help Clients with Visa Applications
Immigration laws are complex. If you have questions or concerns about your visa or visa status, contact one of our knowledgeable Philadelphia immigration lawyers at Surin & Griffin, P.C. immediately. Our lawyers help clients take the steps needed to ensure legal visa status. For more information, contact us online or call us at 215-925-4435 for an initial consultation. Located in Philadelphia, we proudly serve clients throughout Pennsylvania and nationwide.