The Grand Canyon.  Niagara Falls.  Disney World.  There is much to see in the U.S. and international tourism is forecasted to promote more than a million new U.S. jobs over the next decade — that is if foreign visitors are permitted to come to the U.S. to visit.  

According to the White House, the U.S. travel and tourism industries currently represent 2.7% of the GDP and more than 7.5 million jobs.  In his January 19th Executive Order, President Obama established visa processing goals and set up a Task Force to study how the U.S. could be more competitive in the international travel/tourism markets.  (See Link: http://www.whitehouse.gov/the-press-office/2012/01/19/executive-order-establishing-visa-and-foreign-visitor-processing-goals-a).

A person seeking to come to the U.S. as a visitor for pleasure needs permission, usually a visa, to enter the country and begin his or her visit, but some people don’t need visas. Citizens of 36 countries are eligible to enter the U.S. without securing a visitor’s visa because of the Visa Waiver Program. (See Link: http://travel.state.gov/visa/temp/without/without_1990.html).

The program is a reciprocity arrangement between the U.S. and various countries whose citizens have a good record of timely departing the U.S. after visiting.  As an aside, there is also a visa waiver option for qualifying business visitors — but that’s a topic for a separate blog post.

Of course, not all citizens of these 36 countries are admissible.  If they fall within one of the grounds of inadmissibility, such as having committed a crime involving moral turpitude, they are inadmissible regardless of holding citizenship in a participating country.  Such individuals are not permitted to enter the U.S. without an individual waiver of their specific ground of inadmissibility.

In effect since 1988, the Visa Waiver Program requires that the intending visitor register online in advance, providing identity, destination and other information through a system known as the Electronic System for Travel Authorization (ESTA). (Canadians and Bermudians are visa-exempt, and are not required to register on ESTA and are not subject to the Visa Waiver Program).  (See Link: https://esta.cbp.dhs.gov/esta/).

Visa waiver tourists (VW tourists) are permitted to visit the U.S. for up to 90 days for normal purposes of a visitor for pleasure.  This excludes such things as engaging in productive employment for compensation.

After arriving, VW tourists are not permitted to change their non-immigrant status in the U.S.  While the regulations permit VW tourists to adjust to permanent residency by virtue of being an immediate relative (spouse, minor child or parent) of a U.S. citizen, this path is quite risky and has resulted in VW tourists being deported — individuals in the U.S. on a visa waiver are not generally eligible for a removal hearing before an immigration judge.

The White House would like to expand the Visa Waiver Program to include Taiwan.  The Executive Order calls for the increase of visa processing capacity in China and Brazil by 40%.  Neither China, nor Brazil, nor India is among the 36 visa waiver countries.  These potential tourists need to apply at a U.S. consulate in person for a visitor (B-1/B-2) visa.  In a face-to-face interview, the consular officer decides if the person should be granted or denied the opportunity to visit the U.S.  Aside from the grounds of inadmissibility, the most common basis for visa denial is 214(b) of the Act: possessing immigrant intent.

Under our law, a visa applicant is presumed to be an intending immigrant and must prove that he or she has a “residence abroad that he/she will not abandon.” That means the applicant needs to provide proof that satisfies the consular officer of sufficiently strong ties with his/her homeland or place of residency, ties that will bring the potential tourist home after the visit.  For many people from many countries, this is an almost insurmountable burden of proof.  The decision of consular officers is virtually unreviewable.

Many people from high-fraud or high-poverty nations who really do only want to come to visit a relative or attend a graduation or celebrate a wedding or visit the Grand Canyon are denied and don’t have the opportunity to spend their money in the U.S. and contribute to the creation of new jobs in the travel and tourism sector of our economy.  The Executive Order has established a Task force to look into this and other problems.