AILA/CBP Q&A Notes From April 2018

On April 8, 2019, the liaison for the NY/NJ branches of the U.S. Customs and Border Protection (CBP) answered questions from the American Immigration Lawyers Association (AILA) [PDF version]. In this post, we will briefly examine some of the more interesting questions and answers.

Admission of H4 and L2 Beyond Visa Expiration Date After Principal Receives an Extension

H4 and L2 derivative beneficiaries are eligible for admission for the same period as the principle H1B or L1. In certain cases where the H1B or L1 principal receives an extension of status, the H4 or L2 derivative may have an earlier expiration date on his or her visa than the principal. AILA asked the CBP what evidence the H4 or L2 would need to present at the border to indicate that he or she is eligible for admission for the same period as the principal H1B or L2.

The CBP stated that the H4 or L2 derivative should present his or her valid visa along with the new Form I-797 approval notice indicating that his or her principal spouse's status has been extended. The CBP said that this evidence is sufficient for proving that the derivative is eligible to be admitted for the full period for which his or her principal spouse is admitted. The CBP stated that if the derivative H4 or L2 beneficiary is told that he or she needs to present an approved Form I-539, the H4 or L2 should ask to speak to a supervisor.

Investor With Expired E2 Visa and Valid Form I-94 Returning from Canada

An E2 treaty investor with an expired E2 visa and valid Form I-94 returning from Canada or Mexico after a stay of less than 30 days “should ask to speak with a[] [CBP] officer to obtain a new I-94.” The investor should not go to a kiosk.

H, L, O, and P Petition Extension Issues

The CBP confirmed that an individual with an extended H, L, P, or O nonimmigrant visa petition and a visa which is valid for a shorter amount of time than the extension “is eligible to be admitted until the end date listed on the petition.”

Please see our website's full section on work visas to learn more about the aforementioned work visa categories and related issues [see category].

Dual National Question

A dual national with a visa in an expired passport from one country and a valid passport from another country cannot enter the United States. The individual's visa must be in the valid passport.

Electronic System for Travel Authorization (ETSA) Question for Dual Citizens

AILA asked a question regarding dual citizens of two countries for which ESTA is available. Can a dual citizen apply for ESTA in both of his or her passports and travel with either passport? The CBP stated that the dual citizen should apply for ETSA with the passport that he or she intends to use for travel to the United States. It added that “CBP looks at denied ESTA petitions, and they indicated that the system may automatically deny the ESTA in a second passport if approved with the first.” The CBP indicated, however, “that so long as ESTA is approved with both passports, there should be no issues when traveling.”

Advance Parole Documentation

AILA asked whether individuals with advance parole who are not applicants for adjustment of status should carry any additional documents to demonstrate their eligibility to be paroled in the United States. The CBP responded that if the individual has temporary protected status (TPS) and a Form I-512, the CBP can check the individual's status using the Form I-512.

AOS Applicant Traveling on Advance Parole After Underlying Basis for AOS Has Changed

AILA asked whether an adjustment of status applicant who was granted advance parole may continue to travel on that grant of advance parole if his or her underlying basis for the adjustment of status has changed. The CBP stated that this is an issue for the United States Citizenship and Immigration Services (USCIS). For CBP purposes, it “will check the status of the [Form] I-485 at the time that an individual requests admission.” CBP will only parole the individual if the Form I-485 is still pending. CBP Is concerned with ensuring that the individual is being paroled in order to continue to have the adjustment of status application processed. The CBP confirms the status of the adjustment of status application with the USCIS.

Round-Trip Cruises and Departure

Going on a closed loop cruise — defined as a cruse that departs from and arrives to the same port — constitutes a “departure” for non-lawful permanent residents. Upon return, a non-lawful permanent resident must present a valid passport and visa (if applicable) or a valid Form I-512 (if applicable).

VWP Refusal Document Requests

AILA asked how individuals who are refused admission under the visa waiver program (VWP) may request a complete copy of the paperwork when it is not provided by the CBP. The CBP stated that it is its general policy to provide the paperwork. In cases where the paperwork is not provided, the individual may request it through a Freedom of Information Act Request (FOIA).

Drug Tests at the Border

The CBP stated that it does not administer drug tests at the border.

Electronic Device Searches and Cloud Data

AILA asked what procedures CBP has in place to ensure that officers do not access information stored in the cloud when searching electronic devices. The CBP responded that it requires that all devices be put in airplane mode during searches so that it cannot access cloud data. The CBP can detain a device if the individual does not allow a search. The CBP stated that devices are usually detained “for reasons associated with terrorism, narcotics, and/or child pornography.” CBP consults legal counsel when there are specific questions about detaining devices and device searches. The CBP noted that these policies apply to all travelers, including U.S. citizens.

CBP Role in Return of Individuals Who Had Been Removed

AILA asked about CBP's role in cases where an alien who was removed wins a motion to reopen and can be returned to the United States or when an alien is removed in error. CBP stated that the U.S. Immigration and Customs Enforcement (ICE) is necessarily involved in these cases because that agency has the alien's A File and other relevant documents. CBP coordinates with ICE “because of any detention and/or bond issues associated with the case.” In these cases, ICE paroles the alien into the United States.