An Ounce of Prevention: Questions Employers Should Ask their Business Travelers


American companies that bring foreign staff to the U.S. for short or long terms sometimes find the process of obtaining the requisite visas difficult and frustrating. To be sure, the U.S. immigration system is complicated and high on the priority list for reform. But failing reform, companies can help themselves and cut down the need for expensive legal advice by adding three questions to the vetting process.

Have you ever before applied for a US visa?

Visa application history is like a credit report; it follows you around. The U.S. Government maintains a vast database on visa applications worldwide and asks new applicants about their previous application history. Misrepresenting the facts will cast a pall on the current application. Also, knowing if a problem arose during a previous instance can be important to preparing a new application, even if it’s for a different purpose.

What will compel your return abroad?

An unusual feature of U.S. immigration law is a section that states most applicants for nonimmigrant visas are presumed to be intending immigrants unless a persuasive case is made that their visits will be temporary.   Few U.S. employers abroad intrude on the private lives of their staff to ask whether they are engaged or are supporting a dependent parent. Yet persuasive evidence of a compelling reason to return abroad at the conclusion of temporary business in the U.S. could be critical to the consul’s visa decision. It’s worth pointing out that a visa decision is not based on the sponsoring company’s bona fides, but those of the individual applicant.

Have you ever been arrested?

Youthful indiscretions or an error in judgment are in the pasts of more people than one might imagine. A simple arrest may not be grounds for visa denial. It depends on the circumstances. But all arrests, even if the charges are dropped or dismissed, must be acknowledged to U.S. consular officials. The same is true for an “expunged” conviction, even for a minor offense. The U.S. shares criminal information with many countries and some U.S. embassies abroad have cooperative relationships with the local justice system, so you can’t assume that what happened in the past will not become known to the consul. Keep this in mind: if an arrest or conviction is uncovered by consular officials—rather than disclosed by the visa applicant–it will be very damaging and can lead to visa denial or, worse, inadmissibility. In short, it’s best to anticipate and prepare for a possible problem in advance.

If these questions reveal a possible problem for a prospective foreign staff member in obtaining a visa, immigration counsel can advise how to prepare. This is much easier (and cheaper) to do before an application than afterwards, when there might be a refusal in the records. And HR staffs for large corporations that regularly bring staff to the U.S . can be trained in how to identify and head off problems and to prepare foreign staff for the application process. Ultimately, this makes the process less unpredictable and less expensive for the corporation and less fraught for the applicant while providing U.S. Embassies abroad what they need to make good decisions as efficiently as possible.

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