New Regulation Creates Cash Bond Requirement for Some Would-Be U.S. Visitors

In a new temporary final rule to be effective from December 24, 2020 to June 24, 2021, the Trump administration has rolled out a pilot program requiring some who wish to visit the United States for business or pleasure to pay bonds of $5,000, $10,000 or $15,000 as a condition of visa issuance.

The regulation doesn’t affect countries that participate in the visa waiver program, whose citizens or nationals visiting the U.S. for fewer than 90 days are exempted from the need for U.S. visitor’s visas.  The 39 participating visa waiver countries are largely European, and also include Australia, Brunei, Chile, New Zealand, South Korea and Taiwan.

Instead, the pilot program applies to Afghanistan, Angola, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Chad, Democratic Republic of the Congo, Djibouti, Eritrea, the Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua New Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen, which the rule notes have high rates of their citizens or nationals overstaying their visas when they come to the U.S.

The majority of these countries have long suffered from civil or political conflicts, and the rate of overstays may reflect those fleeing persecution staying in the U.S. to apply for asylum.

The rule declares that the pilot isn’t designed to assess whether charging high bonds to visitor visa applicants will reduce the rate of overstays, but instead, is intended as a foreign policy tool to pressure  governments to reduce the rate of overstays by their citizens.   That language is clearly intended to scuttle future lawsuits challenging the rule, since federal courts generally defer to the executive branch on matters of foreign policy.

However, the bonds of course could reduce the rate of overstays by preventing citizens of the named countries from being able to get a visa to come to the U.S. in the first place, which may well be the unstated intention of the rule.

As a practical matter, because many U.S. consulates remain closed or at reduced visa processing capacity due to the pandemic, the pilot program may expire without having significant impact beyond sending a message of disparate treatment to citizens of the named countries, who may have legitimate business or other reasons to request a visa to travel to the U.S.

Because the rule is temporary, there is no public comment period.