British business travellers to the US are being haunted by decades-old drug and alcohol offences, and reckless social media posts, as the US toughens its approach to approving visas, immigration lawyers have warned.
Stricter implementation of border rules by President Donald Trump’s administration has seen an increasing number of visas being refused to those with a history of drink driving or involvement with drugs, including arrests for suspected drug offences as well as convictions.
Charlotte Slocombe, a partner at London-based immigration law firm Fragomen, said she was seeing “one or two business travellers per week having difficulty getting into the US”, often to the surprise of their employers. “One of the more common issues that reach me are arrests, cautions or convictions for drug-related offences, either cocaine or marijuana,” she said.
While UK employees do not have to disclose spent convictions to employers, US visa rules state that any brush with the law is relevant regardless of how long ago it happened, including arrests that do not lead to criminal charges or even cautions.
The warning comes as candidates for the Conservative leadership have revealed past drug-taking habits, with frontrunner Boris Johnson and fellow hopeful Michael Gove admitting to having taken cocaine. Both would now be ineligible for an ESTA visa waiver entry permit since this requires applicants to confirm they have never “possessed, used or distributed” illegal drugs.
Nita Upadhye, managing attorney at NNU Immigration in London, which specialises in securing US visas, said the rising barriers to entry were the worst she had seen in 15 years in the field. There was a 108 per cent increase in refusals of inadmissible persons at US ports of entry in 2018 compared with 2015, according to data from US Customs and Border Protection.
“Under this administration, the level of increased scrutiny of visa applications has hit the next level,” she said. “There is more data sharing, and information gathering than ever before, and something that [a visa applicant] may believe would remain hidden is now rising to the surface. We’re getting inquiries at a rate that we’ve not seen before.”
She added that she had received more approaches from high-ranking employees wanting “discreet advice” before accepting jobs involving US travel.
“Oftentimes they call and say . . . ‘I have this issue in my record and I don’t want my employer to know. I would like to get a visa in advance to ward off any concerns or questions by my employer about why I can’t take the next flight out to New York if the job requires it’,” Ms Upadhye said. “What’s important is getting them in front of an embassy officer so that they can disclose everything and see if it’s going to be an issue.”
The lawyers emphasised that while the underlying immigration legislation had not changed, the application of existing rules had become stricter. While applying for visitor or work visas, applicants are subject to much greater scrutiny. Even after arrival in the US, visitors are being interrogated by border officials trained to uncover past abuses and have been given increased discretion to refuse entry to the country on the basis of new information.
Last month, a British man arriving on an ESTA for a planned three-month trip to see his American girlfriend was banned from the US for life after border officials suspected he was abusing the permit when they found a text message on his phone that read: “I am moving to be near you.”
One of the most significant changes is that US officials are scouring social media to uncover habits that have not been voluntarily disclosed. The ESTA form has been updated to ask applicants for their social media identifiers such as Twitter or Instagram handles.
“People are less able to keep their secrets secret than they were historically,” Ms Slocombe said. “When you apply for a visa, the Department of State also googles you. [Anything suspicious] on your phone or laptop or social media immediately triggers more questioning, which can lead to admissions, which is the same as a conviction.”
Ms Slocombe said there was a perception among US officials that Britons were more likely to tell the truth under questioning than people from other countries. “British nationals are often seen as more willing to disclose and travellers understandably tend to divulge details about their past because they are scared,” she said. “Or they don’t realise that it’s going to be such a problem that they smoked something once several years ago.”