All about Visa Reciprocity

by Matthew Bray

Reciprocity is a principle of international law stating that the benefits, privileges, and penalties granted by one country to citizens of another country should be returned in-kind when the reverse occurs. In immigration law, this means that when a foreign government imposes certain fees or conditions on US citizens for certain visa types, the US government will impose the same fees or conditions on nationals of that country for similar visa types.

Brazil made headlines by waiving its usual requirement that citizens of Japan and the US obtain tourist visas for the limited period of the Olympic Games. Usually, however, Americans traveling to Brazil must apply for a tourist visa ahead of time, and pay $160 for the honor. When reading the fine print on their visa applications, they will learn that both the need for the visa stamp as well as the fee attached to applying for it are levied against US citizens to match the same requirement and fees levied against Brazilian citizens applying for visas to the US. This is reciprocity in action.

The Department of State—the agency that issues visa stamps to foreign nationals at US Embassies/Consulates abroad—publishes “reciprocity schedules” that specify the validity period, number of entries, and additional fees levied against foreign nationals based on their country of citizenship for different visa types. For example, Chinese citizens applying for O-1 visa stamps must have an O-1 petition approved by US Citizenship & Immigration Services (USCIS), pay the $190 processing fee, complete the online DS-160 application and make a visa appointment. Once approved, however, their O-1 visa stamps will be valid for only three months (even though the petition may have been approved with a three-year validity period) and for a single entry. Approved Brazilian applicants, on the other hand, will also receive a visa stamp valid for only three months, but for multiple entries. Unlike Chinese nationals, however, Brazilian nationals will have to pay an additional $40 fee for the visa issuance, once approved.

The State Department’s reciprocity schedules also apprise foreign nationals of the kinds of documentation required for visa applications. Since each country issues different kinds of vital documentation to record births, marriages, and divorces, and each country maintains police and court records in different ways, the schedules are very helpful in guiding visa applicants to the correct type of document for their application. For example, most Canadians have a small, or “short form,” wallet-sized birth certificate valid for proof of Canadian birth/citizenship. Because, however, this short form certificate does not contain all the information that the agency needs to verify identity, US Embassies/Consulates do not accept it as proof of Canadian citizenship, and Canadian applicants must obtain the long form certificates with the full information extract.

The schedules also advise visa officers if they can realistically expect certain kinds of documentation, based on the availability in each country over time. Indian marriage certificates, for example, may be issued under different legal authority based on the spouses’ religious affiliation as well as the date of the marriage. Same sex marriages, if not authorized or recognized in the state where they were celebrated, would not be valid for US immigration purposes, even though the US does recognize the validity of same sex marriages performed in states where they are authorized or recognized.

For the purposes of making criminal inadmissibility determinations, the State Department also specifies what kind of police and court records are required for visa officers to conduct background checks. In some countries, such as the UK, the law provides that some convictions are “spent” or canceled upon the fulfillment of certain conditions. A conviction, however, often remains valid for inadmissibility purposes under US immigration law even where it has been “spent” because US law recognizes the validity of a judicial order canceling or vacating a conviction only where it has been canceled or vacated based on substantive law or on constitutional grounds. A conviction spent because the offender has “rehabilitated” may still bar that individual from obtaining a US visa.

Although there is no official overarching international law or treaty that obliges countries to adopt and follow the principle of reciprocity, it has historically been followed by most countries in the spirit of fair play.