Travel Advisory : Beware at POE & Revalidation Safe Alternative
Posted Dec 14, 2001

In early December, we received important information that INS issued a policy decision not to exercise its discretion in granting Form I-193 document waivers at ports of entry (POEs) to those seeking entry into the U.S. from foreign travel. INS POE Officers have apparently been instructed not to grant I-193 Waivers, except in cases with exceptional grounds, such as extreme medical or humanitarian emergencies. An I-193 waiver is a waiver of documents in cases where the applicant desiring entry to the U.S. is otherwise eligible but does not have the proper visa or other travel document.

Waivers Discretionary and Authority Delegated to Few Senior INS Officials  Since then, we received on December 13, 2001 a clarification that there has been no change in substantive policy with respect to these waivers. What has changed is the official empowered to make the decision granting the waiver. Only the INS District Directors, Deputy District Directors, or Assistant District Directors for inspections or examinations at local INS offices or at the POE are authorized to make decisions granting waivers. Only these individuals have the authority to approve parole for deferred inspections or other reasons and to waive any documentary requirements. This responsibility cannot be delegated to a lower level INS official. In essence, this may mean that there will be far fewer approvals on discretionary cases since the senior level INS officials are not available to issue waivers when most international flights arrive in major U.S. cities.

In other words, the appropriate INS officials at various airports and other ports of entry continue to have the discretion to waive the requirement of a valid visa or border crossing card and/or passport, on a case-by-case basis. The authority for this discretion is given under 8 CFR Section 212.1(g). However, one needs to obtain the waiver from one of the senior-level INS officials in that INS District office or POE, as outlined above.

Person Should Not Rely on the Waiver  Obtaining a waiver from the INS does not in any way eliminate the need to have appropriate documentation for entry. In the post-9/11 era, more than ever, each person must be able to clearly establish her/his eligibility for entry. We also remind MurthyBulletin and MurthyDotCom readers to avoid volunteering extraneous or unnecessary information or documentation to the POE officer. INS has the power to consign persons seeking entry at a POE to expedited removal if they do not withdraw their applications for entry. The waiver of documents is only appropriate in limited circumstances. An example of this rule would be the case of a B-2 visitor for pleasure who has an INS approval for the change of status to an H1B within the U.S. but who does not obtain an H1B visa stamp in the passport at a consulate outside the U.S. and who, subsequently, seeks to re-enter in H1B status. The INS would have discretionary authority to waive the requirement of the H1B visa.

Safer Alternative to Visa at Consulates is Revalidation with DOS  This change in INS policy provides us with an opportunity to remind our readers that, in the current political climate, it is best to attempt to obtain visa revalidation through the U.S. Department of State (DOS), now located in St. Louis, MO.

Criteria for Visa Revalidation with DOS  This visa revalidation is available to one who already has the relevant visa in her/his passport, which either is expiring within 60 days or has expired within the last one year. This service is available for certain visas, including H, L, O, and P. The procedure for visa revalidations is discussed in detail and the addresses are available on MurthyDotCom. There are a number of helpful articles that can be located by searching "revalidation." The information regarding addresses is summarized in our NewsBrief entitled, Address Changes for Re-Issuance of Visas by DOS. The DOS information regarding this subject is located on the DOS WebSite.

Summary of Visa Applications Abroad v. Revalidations  Although many individuals routinely obtain their visas at the various consulates throughout the world, and there is no need for undue alarm, there is always a risk when one leaves the U.S. This risk is compounded by the current, increased scrutiny after September 11, 2001. If the consulate wishes to investigate a specific application, the delay caused by the investigation, even if successfully resolved, can be highly detrimental to the applicant. Employers may not wish to keep positions open indefinitely, while the consulate makes a decision that could take several weeks or months. At many consulates the Anti-Fraud Unit investigates the credentials of the applicant or the viability of the sponsoring employer, etc. – a slow process. The financial consequences of being unable to commence or resume employment can cause great hardship, both to the employer and the employee.

This problem can be resolved with some advance planning and visa revalidations through the DOS, whenever available. While it does not eliminate the problems faced at the port-of-entry, it at least eliminates one hurdle to safe return to the U.S.