Consular Processes and Visa Applications

+ What is a visa?

Arizona Visa Attorney

A visa is an entry document. It is issued by the Department of State (“DOS”) at a U.S. consulate or embassy. The visa contains the class symbol which indicates the type of visa that the applicant has (e.g. B1/B2, F1, H1B, L1, J1, etc.). A visa can be issued for a single, two, or multiple entries. The number of entry determines how many times the visa holder can use the visa to enter the U.S. during its validity period. The validity period of the visa is usually determined by the underlying petition (e.g. H1B, L1) or the visa reciprocity between the U.S. and the country of citizenship of the visa holder. See this: http://travel.state.gov/visa/fees/fees_3272.html. A visa officer cannot issue a visa for a period that is longer than the duration indicated in the visa reciprocity table but he/she can issue the visa for less time. The visa reciprocity table also determines whether a visa can be issued for “multiple entries”.

It is important to understand that having a visa does not guarantee entry into the U.S. The possession of a visa does mean that the visa holder has the proper document to enter the U.S. or that an airline will allow the holder to board the plane. The decision of whether to admit the visa holder rests on the shoulder of the immigration officer at the port of entry, which is a part of the CBP (Customs and Border Protection).

+ Where do I apply for a visa?

Typically, the initial application for a specific visa category must be applied for at a U.S. consulate in your home country. Some U.S. consulates may accept nonimmigrant visa applications by third-country nationals (individuals who are not citizens of the country in which the consulate is located referred to as “TCNs”) as a courtesy to visitors to those countries. U.S. Consulates are not required to accept applications by third-country nationals, and visa issuance is at the sole discretion of the consular officers at the post. You should contact the appropriate U.S. consulate or embassy in advance to determine its application process and the current application fee. You may also check the Department of State website at http://travel.state.gov/visa/embassy/embassy_4825.html.

+ Visa Processing for Nonimmigrant Visas (NIV)

Applying for a visa at a U.S. embassy or consulate can be intimidating. First, the applicant is not on U.S. soil. For those who have been in the U.S. on a temporary nonimmigrant status, leaving the U.S. to apply for a visa means putting their ability to return to the U.S. at risk. Simply put, if they do not receive the visa, they do not come back to the U.S. Second, although the stakes are high, the interview process is very short. Most visa interviews last only for a few minutes. Most applicants find out at the end of the interview whether the visa is granted or denied. For many, the failure to obtain a U.S. visa could literally be life-changing – whether to have a chance to receive a U.S. education or an opportunity to work in the U.S. Third, there is sometimes a language barrier. Although most consular officers are trained in the local language of the post, the visa interviews are usually conducted in English. If the applicant’s first language is not English, the intensity of the visa application process, coupled with the noise and often intimating environment of the visa interview room (benches and people, emotions expressed by other applicants, gun-carrying security guards, bullet proof windows, etc.), can affect the applicant’s ability to respond thoughtfully and accurately to questions from the visa officer.

+ Tips for a Successful NIV Interview

Follow the Instructions. By far, visa applications are denied most often because the applicants have failed to follow the process prescribed by the consulate. U.S. embassies and consulates are under the jurisdiction of the Department of State (“DOS”). The DOS has in recently years dramatically improved the websites of the various U.S. embassies and consulates. See: http://www.usembassy.gov/. A dedicated effort was made by the DOS to standardize the appearance of the homepages of all U.S. embassies and consulates so that information can be found easily. Most consulate and embassy websites offer multiple languages as well. Therefore, a visa applicant’s first stop for information should be the website of the U.S. embassy or consulate in which he/she is applying for the visa. Follow the “How to Apply” section carefully. When there are steps that are not clear or when the applicants have questions that are not answered by the consulate’s website, there is often a way to contact the consular section for additional information either by fax, email, or online inquiry form. Due to the heavy workload of visa officers, it may take several days for a visa applicant to receive an answer. This brings up the next point: plan ahead.

Plan Ahead. As you peruse the consulate website, you may come across warning from the consulate that you should plan to apply for your visa at least 60 or even 90 days prior to your intended day of departure for the U.S. Depending on the consulate and the time of the year, the wait time for a visa appointment varies widely. All applicants must have visa appointments, which are usually scheduled online or with a call center contracted with the consulate. It is not uncommon to have to wait over 30 days to obtain an appointment in some high-volume posts during busy months. This means a visa applicant should start the visa application process approximately 90 days before the intended date of departure. Without a proper visa appointment, regardless of how qualified the visa applicant is, he/she will not get a visa. Although most consulates provide processes for emergency or expedited visa appointments, the criteria for getting them is stringent, and the consulate does not generally consider the failure to plan ahead on the visa applicant’s part as an emergency.

+ Be Prepared

Document Preparation. You should have all the necessary documents for the visa application. Most consulate websites provide a document or interview checklist. If a particular item on the checklist applies to you, you should bring both the original and a photocopy with you to the interview. The photocopy can be offered and given to the consulate officer, if requested.

All visa applicants must complete the DS-160 form. Each applicant, including children, must complete a separate form. Take the time to complete the DS-160 form carefully, completely, and accurately. The DS-160 form is a lengthy form with multiple drop-down boxes with questions that often require you to look up current and old documents. It is not uncommon to take at least one hour to complete the form. The online system sometimes “locks up” or “times out” as well, resulting in the need to restart the whole form. Therefore, it is a good practice to save the form often as you complete it. It is critical that the information completed on the DS-160 form is accurate and truthful. Once you submit the DS-160 form online, the information will be sent directly to the U.S. consulate, and the visa officer will pull up your form on the computer during the interview. Incomplete forms tend to reflect poorly on the applicant, and inaccurate information calls into doubt the credibility of the applicant.

Applicants should not overlook other simple documents preparation issues such as having the proper payment receipt to evidence the payment of the visa application fee, the proper photo, and a passport valid for at least six months beyond the day of intended departure from the U.S., with at least one completely empty page.

+ Sample Document Checklist for Visa Applicants

Requirements vary for each consulate but typically include:

• Confirmation of visa appointment. Check with the consulate where you are applying to verify if dependent applicants need their own visa appointments
• Passport. Current and previous passports issued in the past ten years and any previously issued U.S. visas
• Confirmation Page of Form DS-160. We also recommend printing a complete copy for your reference
• Application fee or payment receipt as requested by the consulate
• One visa photo
• For TCNs, evidence that the applicant is in valid status in the country
• Supporting documents per visa category sought
• Court and/or Police Records, if applicable
• If previously in the U.S., evidence of maintaining authorized status during your stay. If there were any violation, be prepared to provide full explanation
• Updated C.V. or resume, including information of current and past employment, education history, and list of publication, if applicable
• For dependents, documents demonstrating qualifying relationship, such as marriage or birth certificate as applicable. Applicants should bring the original and one photocopy to the interview. Each dependent applicant must have his/her own Form DS-160. If your family members are not applying at the same time as you, they should bring a copy of your stamp and form I-94 and other documentation of your valid non-immigrant status in the U.S., such as your most recent paystub.

Interview Preparation. Consular officers rely on the oral interview significantly in determining whether a visa applicant should be granted the visa. While the interview process is so important, the interview itself is short and lasts usually only a few minutes. This means the consular officer’s questions are usually direct but fairly predictable. For example, one of the most commonly asked questions is why the applicant wants to go to the U.S. If the applicant is applying for a work visa, he or she should expect to be asked about the position in the U.S. Therefore, it is very important for the visa applicant to be prepared to answer some basic questions about his/her visit to the U.S. This means the applicant should have practiced giving the answers to these common questions. The applicant should not be giving the answers to these questions for the first time at the interview. However, applicants should not memorize an answer word-for-word either because they would come across to be rehearsed and insincere. There is a fine line between having practiced the answers and memorized an answer.

Sample common questions asked by consular officers

B1/B2 visitor visa applicant:

• Why do you want to visit the U.S.?
• How long will you be staying in the U.S.?
• What do you plan to do in the U.S.?
• Do you have any family in the U.S.?
• What do you do in your home country?

Work visa applicant:

• What do you do for the company?
• Tell me about your company.
• How do you qualify for your position?
• What do you do on a typical day?

Student visa applicant:

• What do you plan to study?
• Why do you choose this school?
• Tell me about the school that you plan to attend
• What do you plan to do with your degree?
• Why do you want to major in XYZ?

+ Visa Processing for Immigrant Visas (IV)

By the time the applicant has been scheduled for an immigrant visa interview, the applicant should have already provided many documents and a lot of personal information to either the Consulate or the National Visa Center (NVC). Most consulates use a standard document checklist, see: http://travel.state.gov/visa/immigrants/info/info_3190.html. These documents have been supplied to the NVC by the IV applicant, and they should have been provided to the consulate prior to the interview. When preparing for these documents, where applicable and feasible, we recommend the applicant to obtain two sets of the original to avoid any delay due to document lost in transit or missing documents in the file at the consulate.

As with the NIV interview, applicants with IV interview must be thoroughly prepared as well. If the IV is based on marriage, the applicant should fully expect that the visa officer to ask direct and probing questions about the truthfulness of the marriage, such as when the couple met, how they met, when they decided to get married, who were at the wedding, etc. If the IV is based on employment, the visa officer will ask questions about the position and the company.

The IV interview should last longer than the NIV interviews. It is also common in some posts for some “local” employees to ask questions of the applicant prior to the actual interview by the visa officer.

The IV applicant usually finds out about the outcome of the interview at the end of the interview. However, it is fairly common for the consular officer to need additional time to run security check or review the case as well.

A successful IV applicant is usually issued an “immigrant visa” valid for six months. The applicant must enter the U.S. with the immigrant visa within the six-month period and the “processed” at the port of entry. The initial processing at the airport can take several hours. After the processing, the holder of the immigrant visa will be admitted to the U.S. as a permanent resident (i.e. “green card” holder). Their “green cards” will be mailed to them usually within four weeks.

+ Parole

Some people cannot obtain a visa and must seek a parole document to enter the U.S. The parole document becomes the entry document for the individual. A common kind of parole document is the “humanitarian parole”. USCIS offices overseas may issue a “humanitarian parole” to an individual so that he/she can enter the U.S. for medical or urgent family reasons.

Another common parole document is the “advance parole”. Individuals who are going through adjustment of status application may obtain an “advance parole” to facilitate entry to the U.S. after foreign travel. A person in possession of a valid visa and advance parole can usually choose to use either document to apply for admission into the U.S.

It should be noted, however, that individuals using the advance parole to enter the U.S. may sometimes be sent to “secondary inspection”. This means they will not be processed at the main immigration inspection counter when they arrive in the U.S. Instead, they will be sent to a different area for inspection, because CBP needs some additional time to verify the status of the individual and complete “paperwork” for parolees and does not want to hold up the main inspection line. Therefore, individuals seeking entry into the U.S. on advance parole should plan extra time at the port of entry, especially if they have a transfer flight to catch.

+ Other Entry and Visa Issues

Waiver

Some individuals are inadmissible because of a number of reasons, such as prior criminal conviction, health related reasons, prior U.S. immigration violation, or other grounds as prescribed in the law. A person who is inadmissible to the U.S. will not be able to obtain a visa to enter the U.S. The person’s inability to obtain a visa may last for a number of years depending on the reason for the inadmissibility. When a person seeks to obtain a visa when he/she is statutorily inadmissible, he/she will need to apply for a waiver. The kind of waiver and its criteria for qualifying for it depends on the reason why the person is inadmissible.

Further, each consulate often has its own rules on how waiver applications are handled. Usually, a waiver applicant must make a visa application and submit the waiver application at the same time. If a consulate officer is persuaded that the person qualifies for the waiver and the underlying visa, the officer will make a favorable recommendation for the waiver to the Department of State in Washington, DC. The DOS HQ will have the final say on whether the waiver is granted. The process would usually take at least 8 weeks. Needless to say, if the consulate officer does not feel that the waiver should be given, or that the applicant does not qualify for the underlying visa, he/she will deny the both the visa and waiver application.

If I have a valid non-immigrant visa in my passport, what do I need in order to reenter the U.S. after traveling internationally?

Your valid visa stamp in your passport should be sufficient, but you should also carry your original USCIS Notice of Action (Form I-797). The visa stamp shows that the U.S. Department of State has determined that you may be admitted to the U.S. in a particular visa status, and the USCIS approval notice (Form I-797) is evidence of the maximum period for which you may be admitted.

All foreign nationals’ reentry to the U.S. are recorded in the I-94 online system (with the exception of entries after visits to Canada or Mexico for periods of less than 30 days or for Canadian nationals entering the U.S. who are in possession of a “multiple entry” I-94 card. The USCIS officer who admits you to the U.S. will record entry and departure in the I-94 system Please always check your electronic I-94 record to ensure that you have been admitted in the proper status and for the proper duration, as errors do occur, and they can affect your status and/or cut short of your authorized stay in the U.S. The expiration date on the I-94 will govern your valid period of stay and may also govern your period of employment authorization.

What if my visa has expired, but my I-94 is still valid?

Your visa is an entry document which must be valid when you enter the U.S. However, after you have entered the U.S., the expiration of your visa does not typically have any adverse effect on the validity of your stay in the U.S. The validity date indicated on your I-94 admission record is the critical date which determines how long you can remain in the U.S.

What happens if my nonimmigrant status expires (as evidenced by my I-94 admission record)?

Unless a request for extension or change of your status is pending, you will be out of status and should leave the U.S.

If you are not eligible for further extensions of your current nonimmigrant visa status, are not eligible for a different nonimmigrant classification, and have not yet reached the final stage (Form I-485) of the green card process, then you will no longer be authorized to remain in the U.S.

If you overstay the period noted on your I-94 admission record by even one day, you will be subject to a requirement to return to your home country to obtain all future nonimmigrant visas (i.e., you may not obtain any future nonimmigrant visa in any U.S. consulate other than the one in your home country.) In addition, if you overstay your I-94 admission date by 180 days or more, then leave the U.S., you will be subject to a three-year bar to reentering the U.S.; an overstay of more than one year will subject you to a ten-year bar to reentry.

It is absolutely critical that you monitor the expiration date of the I-94 admission record for yourself and your family members.