** LEGAL UPDATE **
There has been a lot of media buzz about a new U.S. Department of Homeland Security (DHS) regulation that could require visa applicants from certain countries to post a $5,000-to-$15,000 bond before receiving a visa to the United States. The program goes into effect on December 24, 2020 as a pilot effort, and will last for six months.
In reality, only an extremely small percentage of applicants will fall under the parameters of this pilot program, and an even smaller number would actually be required to post a bond. DHS estimates that only 200 to 300 bonds will be potentially processed under the pilot program. Here's more on what to expect.
U.S. consular officers have always had the authority to require payment of a bond, but in practice, most have never used this authority. The purpose of a visa bond is to give the applicant a strong incentive to leave the U.S. after the authorized period of stay because, if the applicant overstays, the person who paid the bond will forfeit the money.
Still, in cases where a consular officer has doubts regarding whether an applicant will return to the home country, that applicant is not eligible for the nonimmigrant visa in the first place. The normal procedure would be to deny the visa. What's more, there is not a clear process for administering the bond requirement, even if it is put into use.
Why the pilot program, then? Its main purpose is not to determine whether aliens who post bonds are more likely to return to the home country, but simply to see if the bond program could work, from an administrative perspective. Therefore, only a small number of applicants will be required to post bonds. Visa applicants who fit the criteria for the program could be required to post a bond of $5-15,000 before the visa will be issued.
You will not be required to post a bond unless all of the criteria below apply to your situation.
The program applies only to applicants from countries with a 10% or higher visa overstay rate, per the DHS 2019 Entry/Exit Overstay Report. These countries are:
In 2019, out of the millions of foreign travelers who entered the U.S., only about 50,000 were from one of these countries.
The Visa Bond Pilot Program does not apply to student visas or temporary work visa applicants. It applies only to applicants coming to the U.S. for tourism or business purposes, that is, on a B-1 or B-2 visa.
If the consular officer is not convinced you will return to your home country, you are not eligible for a B-1/B-2 visa at all, and therefore not subject to the bond requirement. Applicants cannot pay a bond to overcome a consular officer’s suspicions that the applicant will overstay the visa, even though the purpose of the bond is to incentivize aliens to return home after visiting the United States. This might seem paradoxical, but because of this requirement, few people will be affected by the pilot program.
If you are from a designated country, applying for a B-1/B-2 visa, and the U.S. consular officer is convinced you will return to your home country, but you have a separate reason that you are ineligible for a visa to the U.S. (you are "inadmissible"), you might be required to post a bond before your visa can be approved.
Some common nonimmigrant visa ineligibilities include criminal or drug-related convictions or prior immigration violations in the United States. Many immigration violations result in ineligibilities for only a certain period of time. If that time has elapsed, you would no longer have a visa ineligibility and would not be subject to posting a bond.
If you have a visa ineligibility, such as the ones described above, you will need a waiver from DHS before your visa can be issued. However, the consular officer must consider whether to recommend you for the waiver. DHS almost never reviews a waiver request without first getting a consular officer’s approval recommendation.
In considering whether to recommend approval, consular officers will consider the severity of the ineligibility and how long ago the conduct occurred. If you have recent immigration violations it is particularly unlikely that the consular officer will recommend a waiver, because it will show you’re unlikely to return home when you should.
The officer can also consider the purpose of your trip to the U.S. when deciding whether to recommend the waiver. For example, you might have a recent conviction for drug possession and, under typical circumstances, the officer would not recommend the waiver. But, if the purpose of your upcoming trip is to visit a critically ill immediate relative or to purchase a multi-million-dollar piece of equipment from a U.S. manufacturer, the officer can consider the humanitarian or U.S. national interests served by your travel and might recommend the waiver.
Even if the consular officer recommends the waiver, DHS has the discretion to deny it. Only applicants with an approved waiver who meet all the above conditions might be subject to posting a bond.
Even if your situation falls into the above-described narrow parameters, the U.S. consular officer still has the discretion to issue your visa without requiring you to post a bond. Since the consular officer has already determined you are not likely to overstay the visa, it is unclear what category of applicants would routinely be required to post a bond that's meant to disincentivize misuse of the visa.
According to DHS, “The Pilot Program is designed to apply to nationals of specified countries with high overstay rates to serve as a diplomatic tool to encourage foreign governments to take all appropriate actions to ensure their nationals timely depart the United States after making temporary visits.” In reality, few applicants will actually end up being required to post a visa bond, but most countries don’t want to be on this designated list of high overstay countries. Furthermore, other countries might align their visa policies with the U.S. and become stricter regarding visa issuance for nationals of these countries. The U.S. can use this publicized list as a foreign policy tool to encourage the designated countries to implement programs to incentivize their citizens to return and to decrease the overall overstay rate so that the country is no longer on this list.
Even if you are from one of these designated countries, you will be asked to post a bond only if all of the above criteria apply to you and the consular officer decides to impose a bond requirement. Rather than focusing on the bond requirement, it is more important to ensure that you are adequately prepared for your visa interview.
Effective Date: December 24, 2020