What 'continuous vetting' means for Kiwis in the US

Explainer - If you're thinking about going over to the United States as more than a tourist, be ready to navigate the ever-changing reality of visa applications.

Last week the US announced it would review all foreign visa holders, including ones who've had them for some time - an estimated 55 million people - for possible violations, including "anti-American" beliefs.

It comes as there have been a wide variety of immigration crackdowns in President Donald Trump's second term.

Here's what you need to know.

What's changing with immigration to the US?

The US government said last week that any foreigner who holds a visa for the United States is subject to "continuous vetting."

"The department's continuous vetting includes all of the more than 55 million foreigners who currently hold valid US visas," a State Department official told AFP.

There are multiple kinds of visas for extended temporary visitors to the US, including work and student visas and green cards for those who want to become permanent residents.

Trump's administration has raised requirements for visa applicants, including requiring them to submit to in-person interviews. It's also now mandatory for the person to turn off the privacy settings on their mobile phone and other electronic devices or apps when they appear for a visa interview.

Taufiq Choudhury is an immigration lawyer with Amerinz Legal in Auckland.

"I'm cautioning people not to travel to the US unless it's absolutely necessary," he said.

Ada Echetebu is a founding and managing partner with Auckland firm Norris Echetebu Law, a US business, commercial and business immigration law firm. Her firm's immigration clients are primarily US employment, investment or trade-based visas.

She said there was a lot of general concern among her clients over recent immigration moves.

"Some people have kids on student visas and of course they're worried. We also had a period where we received a lot of calls from students on F-1 visas who were impacted by the visa pause on those visas a little while back.

"We've had quite a few people stopped at the border but our clients are well prepped and advised about their rights at their US Port of Entry and have been all right."

Do I actually need a visa to go to the US?

If you're a New Zealand citizen and you're just going to visit the US for less than 90 days for tourism or business purposes, you won't need a visa under the Visa Waiver Programme, which applies to many countries.

However you'll still need to get a US Electronic Travel Authorisation or ESTA sorted before entering the country for any purpose. The ESTA doesn't guarantee entry, as US Customs will ultimately determine if you can enter at the border.

US Customs have a wide remit to conduct inspections and queries, including searching travellers' laptops, phones and tablets.

Read more:

• Can US customs search my phone? Here's what you need to know

How many New Zealand citizen American visa holders are there? RNZ asked the US Embassy & Consulate for that data, but did not receive a response.

What does continuous vetting mean?

"Continuous vetting" means that people will have their background screened both during initial visa approval and afterwards as well.

"Vetting" is when the government examines and assesses visa holders for their possible criminal history or attempts to overstay their visa, but under Trump, the remit appears to be spreading broadly to include things like people's political stances and social media posts.

Echetebu said there's a lot of "shock and awe" in the administration's announcements, and a lot of it is aimed to draw attention to immigration policies that were already in place, and to allow enforcement for those visa holders who may have not been honest and slipped through the vetting policies.

"It's back to reminding people that they're guests in the US and it's a privilege to be here ... you should not be acting contrary to the US national interest or breaking our laws when in the US."

People are vetted during the initial visa approval process, but the new policy indicates the process will now continue long after that, with possible check-ups on visa holders' eligibility.

It means that people who already hold visas could be scrutinised again - and subjected to stricter new guidelines about "anti-American ideologies" being promoted, including on social media posts.

Choudhury said it is important people consider their backgrounds before going to the US at the moment.

"People should seriously reconsider their plans if they have a history of frequent travels in the past, overstay for even a single day, criminal history whether or not subject to the Clean Slate Act, etc."

If a visa is revoked, and the holder is in the United States, they will no longer be able to re-enter the country if they leave and they could be deported.

Trump issued an executive order earlier this year calling to "vet and screen to the maximum degree possible all aliens who intend to be admitted, enter, or are already inside the United States".

An estimated 55 million foreigners hold valid US visas, the State Department has said, although not all of those would currently be in the US. They would most likely not all be under active review, but could be vetted again at any time, under the Trump administration's indications.

The government's Safe Travel Website warns that the US is under guidance for travellers to "exercise increased caution" due to the threat of terrorism and incidents of civil unrest. The Foreign Affairs Ministry also updated its travel advice to New Zealanders in May, including warnings of increased risk of being detained at the border.

US Secretary of State Marco Rubio has argued that the Trump administration has the right to issue and revoke visas without judicial review and that non-US citizens do not enjoy the US constitutional right to free speech.

What are the Americans looking for, anyway?

"Anti-American activity will be an overwhelmingly negative factor in any discretionary analysis," US Citizenship and Immigration Services said in a press release.

"America's benefits should not be given to those who despise the country and promote anti-American ideologies,"

USCIS spokesman Matthew Tragesser said. "US Citizenship and Immigration Services is committed to implementing policies and procedures that root out anti-Americanism and supporting the enforcement of rigourous screening and vetting measures to the fullest extent possible."

The UCSIS said this would include those "who support or promote anti-American ideologies or activities, antisemitic terrorism and antisemitic terrorist organisations, or who promote antisemitic ideologies."

"A lot of this has been targeted primarily at students and also green card holders and seasonal workers," Echetebu said. "There was a period where it was alleged that they were targeting green card holders from certain countries."

"But now they're moving to this thing where we do have the right now to check if we have any suspicion. It's kind of a broad discretion they're giving themselves."

The UCSIS policy manual was updated to clarify discretionary factors that may be taken into account for immigration benefits.

Echetebu said that there was a need to define some of the discretionary powers.

"As a lawyer we go back to, 'Well then, define,' which is one of my problems in general when I see legislation or policies put out, we'll need that defined. This is one of those things that will end up in the courts."

There have been multiple reports of people detained, deported or refused visas over their posts on the Israel-Gaza conflict.

"Again it boils down to what we've seen in the actions of this administration," Echetebu said. "We've had students who were arrested and deported for protesting and saying that they support Palestine. Not necessarily anti-Israel, but pro-Palestine."

Officials told the Associated Press that the reviews will include all visa holders' social media accounts, law enforcement and immigration records in their home countries, along with any actionable violations of US law committed while they were in the United States.

"A US visa is a privilege, not a right," the US Department of State proclaims on its website.

The State Department has said it has revoked more than 6000 student visas this year.

There have been multiple instances of New Zealand citizens running into problems at the US border, including Sarah Shaw and her 6-year-old son who were detained in Texas for three weeks after issues with her visa at the US-Canada border.

She said she tried to re-enter the US without both parts of her visa renewed.

"I'd spoke to my attorney about it, and she'd said, 'You'll be fine, your paperwork's all valid'. She was kind of like, (being detained) would be worst-case-scenario. But I really didn't think that was going to happen."

Several Kiwi musicians have also been detained, deported or denied entry, including reggae artist Lotima Nicholas Pome'e, also known as General Fayah, and Auckland DJ duo the Katayanagi Twins.

So should visa applicants just not criticise the US online?

"We do tell all our clients be careful and to be smart," Echetebu said. "Even LinkedIn, just be careful what you're posting on there."

"This administration is known for doubling down," she said. "They don't back off."

Choudhury said past actions could come back to bite immigrants and tourists to the US.

"In my opinion, speeches or acts critical of the US or the current administration increase the chances of unpleasant experiences at the airport."

Will this affect the number of New Zealanders who decide to spend time in America?

Geoffrey Miller, a geopolitical analyst with the Democracy Project, said it well might.

"It would hardly be surprising if regular reports of New Zealanders being refused entry to the United States or put through tougher vetting procedures, combined with other factors such as a lower New Zealand dollar and more welcoming policies from others, lead to new destinations being favoured for short-term holiday travel and even longer-term plans for study or migration."

Trump has also banned travel from multiple countries to the US, citing security concerns.

Miller said recent data shows New Zealanders are travelling more to destinations such as China, Japan and Indonesia.

"Of course, the enduring lure and attraction of the United States is not going away. Much of the negative sentiment is closely linked with Donald Trump, who is in his second and final term as president."

Echetebu said there was a certain amount of "fear mongering" in the announcements aimed to keep people alert.

"What's happening in America is real with ICE raids and all that and it's awful," but most Kiwis coming in at the border would get through fine, she said.

"The truth is most people are fine if they are following the law and entering under the appropriate visas. This is setting up a situation where they can act if they need to and putting the fear in you to keep the bad guys, the bad actors out.

"They're saying if you have committed crimes or are a danger to the US national interests and security, you should not come to America because you're not welcome."

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