Inside law: The US border is changing – be prepared!

Andrea Szew is the founder of Los Angeles law firm Szew Law Group, which has specialised in US immigration for the entertainment industry for over 15 years. 

The recent incident at the US border involving Bruce Beresford, the well-known Australian film director, makes this a perfect time to revisit some key points to keep in mind when entering the United States.

Even though many others have gone through what he experienced, it is always surprising when it is someone who we do not expect would have an issue. These types of incidents remind us that nobody is exempt from the scrutiny at the border. Everyone is in the same situation, and just because you have a visa, permanent resident card, or are entering temporarily under the visa waiver program using ESTA (Electronic System Travel Authorization), you must meet the requirements of entry to the satisfaction of the border patrol. Being issued a visa never guarantees entry into the United States.  A successful entry is in the hands, and at the pure discretion, of the officers at the border.

A person’s intent is usually the main focus of the officers’ questioning of individuals entering the United States. Every visa has a type of intention connected to it. For example, a visitor visa holder should intend to temporarily come to the United States for pleasure or for business related to foreign employment. You cannot have the intention to permanently stay or work while on this type of visa. Therefore, it is the job of the officer to make this determination at the moment you present yourself to them at the border. How do they make this determination? Through questioning, looking at your travel history in the system, examining your passport, or requesting evidence like return plane tickets, agreements, pay stubs, itineraries, etc. They have the right to ask and look at whatever they need to make sure that the intent you claim is, in fact, the truth. Therefore, you must clearly and unequivocally know the intention associated with the visa you are holding at entry and be prepared to assert it with sufficient evidence at hand.

The rise of social media allows for an entire new source of information gathering for officers at the border.  For example, if you come in under the visa waiver program to go visit a friend, and the officer asks to see your emails or social media account, will the officer find something that is contrary to what you claim you will be doing? Is there a post on your Facebook page that says, “Can’t wait to start my new job in the United States” or a comment from a friend stating, “Congratulations on moving to the US”? How about an email with an offer from a perspective US employer? Everything is accessible to the officers at the border and you need to be certain that there is nothing that contradicts the intention that goes along with the visa you presented.

Lastly, honesty is the best policy, but when it comes to dealing with questions asked by either an officer or on a federal government form, it is the only policy. The days when certain facts or incidents could be forgotten and never to be found are gone.  Even though the systems are not perfect, the availability of information on travel history, criminal backgrounds, employment, nationality, and relationships is more accessible than ever before. Don’t try to test the system, but instead check with a professional prior to traveling to see what may or will happen if certain information is disclosed. This is a better approach because it allows you to make an educated decision on whether or not to travel and, if you do, to prepare for all possible outcomes before getting to the border.

Things are changing within the world of US immigration and we have to realise that “we are not in Kansas anymore”. Coming to the United States today calls for conscious preparation that was unnecessary not too long ago. These are just a few things to keep in mind for that moment when you hand over your passport and the officer asks, “What do you plan on doing while in the US?”

The Szew Law Group is based in Los Angeles and consults internationally on immigration to the USA.

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