Don't Panic: Secondary Inspection Isn’t Always Cause for Concern

by Carolyn Szaiff Alvarez

Dear Mr. Khan:

First off, we’re big fans.

You are one of the most successful film stars in the world (if not the most successful). I mean, to have nicknames like “King of Bollywood” and “King Khan” and to be known simply by the initials “SRK,” it’s obvious you are very special. You’ve appeared in more than eighty Bollywood films, have earned numerous accolades including 15 Filmfare Awards, and have a passionate following in Asia and the Indian diaspora worldwide.

We think you’re great. And pretty much everyone else does, except, apparently, US Customs and Border Protection (CBP). Yes, we’ve heard of your difficulties in entering the US. Your interactions with US CBP have been incredibly frustrating. We’re happy in the three instances you were detained that you were able to enter the US, though we are sorry for the terrible inconvenience. You’ve written before about your frustration at being detained by CBP and your irritation at being mistaken for a terrorist, which we can only imagine must be awful.

If you don’t mind though, we’d like to use your experiences with CBP, however frustrating and unacceptable, as a leaping off point to talk about secondary inspection and why it’s not necessarily always a cause of concern when travelers are referred there, even though it’s certainly a cause for delay and frustration. Also, as you may have heard, this past weekend, many nationals of Syria, Sudan, Somalia, Iran, Iraq, Libya, and Yemen were pulled into secondary inspection even though they may have been Green Card holders or even US citizens, because of President Trump's latest executive order. We have addressed the executive order and the turmoil that ensued in separate posts but here we will address other scenarios where secondary inspection may be warranted and even helpful.

Let’s first clarify the difference between secondary inspection and deferred inspection—two very different processes that sound similar. In general, secondary inspection is an additional level of review that CBP performs on a foreign national’s admissibility or status before admitting the foreign national to the US. With deferred inspection, the foreign national is temporarily allowed to enter the US, and must appear with additional documentation or proof of status at a later date at a Deferred Inspection Site.

So what happens when travelers get put into secondary inspection? First off, over ten million secondary inspections occur each year, so it does happen very frequently. Foreign nationals can be referred to secondary inspection for serious issues that reflect negatively on their admissibility. For example, foreign nationals may be placed into secondary inspection because they previously overstayed their period of admission under the Visa Waiver Program, or if the foreign national has a criminal history, or if they are on a No Fly List, or if they do not have the correct documentation to support their admission. Citizens of the seven countries included in the January 27 Executive Order will also likely be put into secondary inspection to undergo additional screening. In these situations, the foreign nationals are subjected to secondary inspection to determine whether or not they should be admitted to the US after a further look into the red flags that the CBP officer discovered.

There are also several scenarios discussed below in which secondary inspection is a standard part of the admission procedure—not a bad sign at all, just a routine part of the process.

Advance Parole as part of Adjustment of Status to Permanent Resident

An advance parole document may be issued to individuals who legally reside in the US who need to leave temporarily and return without a visa. The most common situation in which someone is issued advance parole is when their application to adjust status to permanent resident is pending and they must leave the US for an emergency abroad (for example, a sudden death in the family). When these foreign nationals reenter the US on advance parole, they are required to go through secondary inspection to confirm that their adjustment of status is still under review.

Green Card Processed Abroad

Certain individuals seeking legal permanent residence in the US do not adjust their status while in the US. Instead, they process their Green Card application at a US Embassy/Consulate abroad. After approval, when they enter the US for the first time, these foreign nationals should expect to visit secondary inspection for final processing, to ensure that their Green Card has been ordered and to receive their I-551 stamp (which they can use in lieu of the Green Card until they receive it).

Abandonment of Green Card

When a legal permanent resident of the US decides that they no longer wish to maintain their status, they can formally abandon it by surrendering their Green Card and completing Form I-407.  This often happens when foreign nationals have been living abroad for some time (thinking that they have abandoned their LPR status by simply living abroad) and they decide to visit the US on a tourist (B-1/B-2) visa or under the Visa Waiver Program/ESTA. Once they enter the US, they will likely be placed into secondary inspection so that they can formally abandon their Green Card.

Mistake in the System

Sometimes there is a mistake in the Department of Homeland Security (DHS) computer system which causes problems for certain individuals. These errors in the system include mistaken ESTA overstays (where the Service erred in entering the foreign national’s departure date), mistaken No Fly List entries, and others. We call those foreign nationals who must deal with these mistakes the “serial secondary inspection visitors” since they have to undergo secondary inspection every time they enter the US. These individuals know that they will be cleared but still have to go through the extra processing each time they visit the US. Therefore, they should try to book flights that arrive in the US during less busy times, to minimize their wait. Additionally, these foreign nationals should attempt to have the mistake in the system corrected by submitting a request for redress through the DHS Traveler Redress Inquiry Program.

For those travelers whose name is on the “No Fly List,” this is a serious issue that will likely result in them not being allowed to fly to the US in the first place; or, if they do make it to the US, they will most likely be detained in secondary inspection and denied entry to the US. Those individuals whose name is similar to a name on the list but who are clearly not the same individual may be detained in secondary inspection while CBP officers investigate. The additional check should clarify which individual is on the No Fly List and resolve any confusion.

Review of Additional Documents

Certain foreign nationals must provide extra documentation—typically reviewed in secondary inspection—before being allowed entry into the US. For example, individuals who have a “communicable disease of public health significance” are generally deemed inadmissible to the US. These health-related grounds of inadmissibility may be overcome following an evaluation by a US-approved panel physician located overseas; however, even if foreign nationals can confirm that they were cleared by the panel physician, they are likely to be placed into secondary inspection so that CBP can confirm.

Foreign nationals on F, J, and M visas are another group that must present additional documentation before being allowed entry to the US. During secondary inspection, CBP looks up these individuals in the Student and Exchange Visitor Information System (SEVIS) to confirm that their visas are still valid (i.e., that their SEVIS record has not been terminated).

Checking Luggage/Bags for Customs Issues

CBP officers may also send foreign nationals to secondary inspection to check their baggage for any issues that they see on their Customs Declaration Form. For example, officers may want to ensure that the foreign national is not bringing any prohibited items or currency over $10,000 into the US. 

While CBP officers are not known for their warmth, being referred to secondary inspection, however frustrating, doesn’t always result in foreign nationals being refused entry to the US and therefore does not have to be scary! For those travelers who find themselves in secondary inspection, think for a moment before panicking. Do you fall into one of the aforementioned scenarios? If so, take a deep breath, relax, and do what SRK did: he “caught some really nice Pokemons.”

Thank you, SRK! We sincerely hope that next time you come to the US you breeze right through. C’mon CBP, it’s the King of Bollywood!

Carolyn Szaiff Alvarez
Daryanani Law Group