U.S. INS can turn away foreign bizav passengers without visas

 - May 5, 2008, 12:00 PM

Yes, there is a bill, signed into law by President Clinton in October 2000, that would allow business aircraft operators to enjoy the same visa-waiver convenience afforded certain scheduled airline operators. It would, that is, if the U.S. Immigration and Naturalization Service (INS) had gotten around to integrating the new law into its own regulations. Unfortunately, the INS has yet to publish even a notice of proposed rulemaking (NPRM) with regard to the new law. As a result, the agency continues to enforce the current regulation prohibiting entry of foreign passengers arriving on business aircraft if they do not have a valid U.S. visa.

According to Jim Cooling, CEO of Kansas City aviation law firm of Cooling & Herbers, government agents at U.S. ports of entry have considerable powers. They may choose to issue a visa on the spot or they may deny the individual entry to the U.S. And in either case they may also choose to fine the operator of the aircraft on which the passenger arrived.

To be accurate, a visa waiver is in reality not a “waiver” but a procedure that allows the bearers of certain nationality passports to enter the U.S. via an INS-approved carrier, where they may be granted a visa upon arrival. Both of those conditions must be met for passengers to be permitted entry. The passenger must have a valid passport from a nation participating in a reciprocal visa-waiver program, and must arrive on a “commercial” carrier (scheduled airline) that has been approved by the INS. It is a procedure that has been part of international travel to the U.S. for years, but was denied to business aviation operators. The new bill signed two years ago by Clinton was created in part to remedy that omission.

According to NBAA director of international operations Bill Stine, the association has been “nudging” INS gently but firmly to formalize the new bill in its regulations, but with minimal success. Stine said NBAA was told by the INS that the new regulation has been written, and that it was forwarded to the agency’s general counsel this past spring. Since then, NBAA has heard nothing definite, and Stine was not encouraged by its progress, or lack thereof.

He told AIN that NBAA believes the delay has more to do with internal issues than with any problems unique to allowing the participation of a non-commercial “domestic corporation conducting operations under Part 91.” To further complicate matters, Stine said it may well be that the new INS regulation will at some point also require approval by the newly formed Transportation Security Administration.

And if that were not enough, the entire process may be rendered moot. In light of growing awareness of the need for aviation security since September 11, said Stine, there has actually been talk of canceling the visa-waiver program altogether.

Still, there have been individual successes on the part of some persistent business aircraft operators who have hired aviation attorneys to press the INS for approval of their participation in the visa-waiver program.    

Those who have not taken such action, Stine advises, should be aware that the INS continues to enforce the current regulations, and that any passengers being transported by business aircraft operators into the U.S. should not only have a valid passport from their country of nationality, but also a valid U.S. visa.