United States Consulates and Embassies are located in virtually every country of the world. The consulates and embassies are the foreign service posts of the U.S. Department of State (State Department). The U.S. Consulates and Embassies engage in a myriad of important functions including serving as the political, economic and cultural liaison with the host country and providing an array of legal, financial and ministerial services to U.S. citizens residing within the post's jurisdiction. With respect to everyday U.S. immigration matters, the Consulates and Embassies handle and process the applications of foreign nationals seeking to obtain visas for entry into the U.S. A "visa" is a document issued by the State Department that permits a foreign national to physically enter or reenter the U.S. The visa is a machine-readable document that contains the picture of the foreign national and appears in the foreign national's passport. A visa can be temporary (i.e. H-1B) or permanent (i.e. lawful permanent resident status). The Embassies and major posts issue both temporary and permanent visas. However, in most of the countries where there are two or more posts, many of the Consulates do not issue permanent visas. The term "visa" should not be confused with the term "status." A "status" is an authorized stay in the U.S. issued by the Immigration & Naturalization Service (INS). A nonimmigrant's (e.g. foreign national with H-1B, B-2, L-1) temporary "status" is documented on his or her "arrival/departure card", which is often referred to as an "I-94 card." A permanent U.S. resident's "status" is documented by either a photo identification Resident Alien card (also know as a "green card") or a "permanent resident (I-551) stamp" issued in the alien's passport. Arrival/Departure cards come in different forms and colors, depending upon the alien's temporary status. Depending upon the facts of a particular case, foreign nationals can obtain nonimmigrant (temporary) visas and immigrant (permanent) visas inside the U.S. or at consular post outside the U.S. When the alien chooses (or is required under the circumstances) to obtain his or her nonimmigrant or immigrant visa at a consular post, the method for obtaining the visa is commonly referred to as "consular processing."
A "status" is an authorized period of stay in the U.S. as granted by the Immigration & Naturalization Service (INS). It is not to be confused with a "visa" which is a document for entering the U.S. as issued by the U.S. State Department. The terms "change of status" or "extension of status" apply only to nonimmigrant (temporary) status categories (i.e. H-1B, L-1, TN). Permanent status, properly referred to as "Lawful Permanent Resident" status, has an indefinite duration contingent upon the alien's conduct. Lawful Permanent Resident status can neither be "extended" nor "changed", although a qualifying alien may elect to apply for naturalization to become a U.S. citizen. An alien or the alien's current /potential employer is said to be seeking a "change of status" when a petition is filed with the INS to reclassify the alien's temporary status. An example of a "change of status" would be an employer petitioning the INS to change an alien's F-1 student status to an H-1B professional status so the alien can be authorized for employment. An alien in an unexpired B-2 tourist status filing a self-petition to be reclassified as an L-2 dependent spouse of an L-1A multinational manager or executive would be another example of a "change of status." An "extension of status" is being sought whenever the alien or the alien's current employer is seeking to extend the authorized period of stay in the same status classification. An employer petitioning the INS to extend an alien employee's soon-to be expiring H-1B status for another period of authorized stay is seeking an "extension of status." This distinction is particularly important in the H-1B context, as "extension" cases are not subject to the annual cap. Although there are many exceptions (see below), a qualifying alien currently in the U.S. in a valid and unexpired nonimmigrant status may generally obtain a change of status or an extension of status. In corporate immigration practice, an alien's eligibility for a change of status or extension of status is often a primary hiring consideration. Aliens who are eligible for a change of status or extension of status receive the new classification of status or the extension of status inside the U.S. Thus, an alien employee may be authorized to begin/continue employment without a break in time. Aliens who are not eligible for a change of status or extension of status suffer the inconvenience of traveling to the U.S. Consulate in their home countries, thus resulting in either a break in the alien's employment or a delay in placing the alien on the employer's payroll as a new hire. Pursuant to the Immigration & Nationality Act, some aliens are not eligible for a change of status, even if the alien's current status is valid and unexpired. Aliens entering the U.S. on Visa Waiver Pilot Program (VWPP) status (documented by the dark green I-94 card) are not eligible for a change or extension of status. J-1 nonimmigrants such as foreign medical graduates and certain exchange visitors subject to the "two-year foreign residence" requirement cannot change from J-1 status to any other nonimmigrant status without first obtaining a waiver of the two year home residence requirement. D-1 ship crewman and C-1 airline crewman are also not eligible for a change of status. Aliens who are eligible for a change of status or extension of status receive INS-issued nonimmigrant status inside the U.S. in the form of a new I-94 arrival/departure card. The new I-94 card documents the alien's new status classification and/or new authorized period of stay. Thus, when the INS grants the alien a change of status or extension of status, he or she does not have to make the trip to a U.S. Consulate or Embassy to apply for the status. In fact, he or she already has the status that authorizes his or her stay (and in many instances, employment) in the U.S. However, at some point the alien may wish to travel to a U.S. Consulate or Embassy and obtain the State Department's visa stamp in his or her passport. An alien (other than a Canadian) who obtains a change of status or extension of status cannot freely travel outside the U.S. (except to Canada, Mexico and Bahamas) and reenter solely upon presentation of his or her I-94 arrival departure card. The alien will need to obtain a visa stamp at the U.S. Consulate or Embassy in their home country or at a "stateside" U.S. Consulate in Mexico or Canada. In the instance of "stateside" consular processing, the alien does not have to travel to a consular post abroad to be able to temporarily reside (and work, depending on the classification) in the U.S. However, during the validity of the new status, should the alien decide to seek future reentries into the U.S. from countries other than Canada or Mexico, he or she must first obtain a new visa from U.S. consulate abroad.
When an alien has successfully obtained a change of temporary status (i.e. F-1 to H-1B) inside the U.S., he or she may wish to obtain a visa stamp in his or her passport to facilitate future reentries into the U.S. In such a case, the alien may usually apply for the machine-readable visa stamp at a U.S. Embassy or Consulate in the alien's home country or at a "stateside" U.S. consular post in Canada or Mexico. Non-Canadians and non-Mexicans, more commonly referred to as "Third Country Nationals (TCNs)", may apply for visa stamps at a U.S. Consulate in Canada or Mexico if the INS has approved their applications for change of status. Aliens who overstay their nonimmigrant status (and do not timely file for a change of status or extension of status with the INS) are not eligible for stateside consular processing. Such aliens may only apply for their visas at the U.S. Consulate or Embassy in their home countries (country of nationality or last residence). H-1B and L-1 aliens are afforded dual intent protection and barring any other issues such as previous overstays in the U.S., such aliens can routinely obtain their visa stamps in their home countries without incident. Understandably, many aliens are apprehensive about returning to their home counties to obtain a visa stamp. For one, airline travel to the home country is often expensive and the trip itself can be a cumbersome diversion from the responsibilities of employment. Moreover, most aliens have "home country fears" fueled by personal (or a friend's) prior difficulty in obtaining purely nonimmigrant intent visas (B-2 tourist, F-1 student and H-2B laborer) that are often denied because of the alien's failure to demonstrate strong ties (and the likelihood of returning) to the home country. Most of the H-1B and L-1 alien professionals of our corporate clients elect to obtain their nonimmigrant visa stamps at a "stateside" consulate in Canada or Mexico. For certain foreign nationals, stateside consular processing is often a low-risk and low-cost alternative to processing at the home country. In general, most foreign nationals with unexpired nonimmigrant status can travel to "contiguous" countries of the U.S. (Canada, Mexico and Bahamas) and reenter on their I-94 cards. However under the new rules effective April 1, 2002, if the alien is unsuccessful in obtaining the visa stamp at the U.S. consulate in Canada or Mexico, he or she cannot reenter the U.S. on the I-94 card. In short, the foreign national should not use stateside consular processing if he or she has a marginal case (on the merits) or has not otherwise maintained continuous lawful status in the U.S. Although the U.S. State Department does not usually “re-adjudicate” a case (e.g. second-guess the INS approval), the Consular officer is not bound by an INS approval and may deny a case on its merits. This is certainly true for E-1 and E-2 Treaty Trader/Investor cases. While the U.S. posts in Canada will often entertain visa applications for TCNs, in recent years the Consulate General of the United States at Ciudad Juarez, Mexico across the border from El Paso, Texas, has been the primary "consulate of convenience" for nonimmigrant aliens in the U.S. In the aftermath of the September 11 tragedy, the U.S. posts in Canada (Vancouver, Montreal and Toronto) have not been receptive to TCN applicants.
Certain
foreign nationals are “visa-waived” and do not require passport visas from
U.S. consulates or embassies to enter the United States.
The list of “visa-waived foreign nationals include the following:
The
Visa Waiver Program (VWP) enables citizens of participating countries to travel
to the U.S. for tourism or business for 90 days or less without obtaining a U.S.
visa. Currently there are 29 participating countries in the VWP: Andorra,
Argentina, Austria, Australia, Belgium, Brunei, Denmark, Finland, France,
Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The
Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia,
Spain, Sweden, Switzerland, the United Kingdom and Uruguay. How
can travelers enter the U.S. on VWP? To
enter the U.S. on VWP, travelers from participating countries must:
Entry
at a land border crossing point from Canada or Mexico is permitted under the VWP.
Travelers who apply for entry at a land border crossing point are not required
to present round-trip transportation tickets or arrive at the border entry point
aboard a carrier who has signed an agreement with the U.S. to participate in the
VWP. All other VWP requirements apply to such travelers. How
long may travelers stay in the U.S. on VWP? Visitors
applying for entry under this program are allowed to remain 90 days. No
extensions of stay can be granted, and VWP travelers cannot change their status.
Consistent with regulations pertaining to B1/B2 temporary visitor visas,
travelers coming under the VWP cannot work or study.
“Consular
Processing” or the process of applying for a temporary visa at a U.S.
consulate or embassy abroad requires the foreign national to submit a Form
DS-156 application to the U.S. Consulate or Embassy together with the required
filing fee ($45 plus any reciprocity fees) and proof that he or she qualifies
for the visa.
In
the wake of the September 11 tragedy, all male temporary visa applicants between
the ages of 16 and 45, regardless of nationality and regardless of where they
apply, must now complete and submit the new DS-157 application in addition to
the regular DS-156 Nonimmigrant Visa Application. The
only exceptions are for foreign government officials (e.g. ambassadors and NATO
workers).
Our firm handles many nonimmigrant visa consular processing cases. We supply the alien applicant with the requisite documents including the application itself (Form DS-156) and information for processing at the U.S. consulate and reentering the U.S. In some instances, the alien's processing case may require advocacy to prevent potential problems that may arise in the course of the visit to the consulate or during reentry into the United States. In some instances, we will accompany the foreign national to the Embassy or Consulate.
Applying For Permanent Visas An alien with an INS-approved immigrant visa petition has proven his or her eligibility for the particular immigrant visa category. The alien's next and final step, obtaining the "permanent" visa (more properly referred to as "lawful permanent resident status" or "immigrant visa") can be achieved through one of two procedural methods: Consular Processing or Adjustment of Status. "Consular processing" is a method for obtaining a permanent visa whereby the alien applies for the immigrant visa in person at a U.S. Consulate abroad. Consular processing is available to all aliens with approved immigrant visa petitions. STEPS
The Adjustment of Status Option An alien who is presently in the U.S. and who has maintained continuous lawful nonimmigrant status or who has not been unlawfully present for more than 180 days may file for adjustment of status in lieu of consular processing. Once upon a time, all immigrant visa cases concluded with a consular interview. For strategic reasons , some aliens eligible for immigrant visas may wish to use the adjustment of status method. Aliens who are near the end of their allotted 6 years of maximum H stay should consider adjustment of status rather than consular processing to avoid any possible breaks in authorized employment. Once the adjustment of status application is properly filed, the alien is no longer required to maintain nonimmigrant status. By contrast, an alien who elects to consular process for his or her immigrant visa must maintain continuous lawful nonimmigrant status until the U.S. Embassy or Consulate schedules the immigrant visa interview. For these reasons, many Indian and PRC professionals adjust status if they have current "priority dates." In other instances, consular processing may be prohibitive because the
alien has prior unlawful presence issues which subject him or her to 3
and 10-year admissibility bars. Since consular processing requires
the alien to travel to his or her home country for the required interview,
it may not be an attractive alternative when foreign travel costs are high
or the responsibilities of employment do not permit absence. Until recently, the consular processing of an employment-based immigrant visa was an anomaly, reserved only for immigrant visa cases where the alien beneficiary could not qualify for a temporary work visa or employment-authorized entry. Remarkably, consular processing has become the preferred method for many aliens. In most instances, immigrant visa processing at the U.S. Embassy or Consulate is the quickest pathway to obtaining the immigrant visa. Today, the INS Service Centers are taking 15 months to 3 years to process most employment-based adjustment of status applications. By stark contrast, most U.S. consular posts are able to schedule immigrant visa interviews within 9 months of the INS' approval of the immigrant visa petition.
Role of the National Visa Center Once the INS approves the immigrant visa petition, it forwards the file to the National Visa Center ("NVC") to initiate "consular processing". The NVC is clearinghouse and serves as the liaison between the INS (U.S. Department of Justice) and the designated consular post (U.S. Department of State). The NVC notifies the employer and alien when the immigrant visa file has been forwarded to the Embassy or Consulate. In addition, the NVC sends the alien (or alien's counsel) a set of Department of State forms referred to as "Packet 3". The forms which comprise "Packet 3" are discussed below. Once the "Packet 3" forms have been issued, the NVC's role is complete except in instances where the NVC also handles the initial processing of "Packet 3" and "Packet 4". For example, the NVC handles the initial processing of all immigrant visa applications for the U.S. immigrant visa post in Canada (U.S. Embassy-Montreal). The Process and Forms The above flowchart provides a visual overview of "consular processing". The overall process can be delineated into 3 basic steps:
“Packet 3” Forms
"Packet 4" Forms
Processing Tips
The consular visa application process may seem simplistic but it should not be taken lightly. Visa denials are essentially non-reviewable. Moreover, a visa denial can create a permanent blemish or "black mark" on the alien's worldwide immigration record. In some cases, a visa denial may preclude the alien from being able to secure a visa interview for up to two years. A seasoned immigration attorney can provide invaluable advice regarding the consular application process. It is always best to consult the attorney prior to submission of the application. Once a visa application is submitted to the consulate, it cannot be withdrawn. The consular officer must either approve or deny the visa. If the interviewing consular officer denies the visa application, he or she is required to prepare denial worksheet for the reviewing (supervisory) officer. If the reviewing officer concurs with the interviewing officer, the denied application, worksheet and other relevant documents are stored in the consulate's files. The consular officer also makes a notation of the refusal in the alien's passport. Moreover, the officer also enters a record of the denial into the Automated Visa Lookout System (AVLOS). The AVLOS system is used by consular and INS officials worldwide. Thus, an alien with a "black mark" will have difficulty with all future visa applications at any post. Most importantly, an alien with prior visa refusal must be sure to disclose the denial on all future visa applications. A consular officer may deny an alien's visa application for a variety of reasons. However, the majority of visa denials are due to the alien's "insufficient evidence of nonimmigrant intent" (e.g. the officer believes the alien's desire is to reside permanently in the U.S.). In other words, consular officers often deny certain nonimmigrant visa applications because the alien cannot produce sufficient evidence that he or she will return to the home country when the nonimmigrant visa expires. Most professional nonimmigrant visas such as H-1B and L-1 visas are afforded "dual intent" protection under the Immigration & Nationality Act and the U.S. Department of State's Foreign Affairs Manual (FAM). H-1B and L-1 visas cannot be denied by consular officers simply because the alien harbors the intent to permanently remain in the U.S. or lacks significant ties to the home country. With respect to many other nonimmigrant classifications such as H-2B laborer status, B-1/B-2 tourist status and F-1 student status, the consular officer can and will deny the alien's visa application if the alien cannot demonstrate that he or she has a strong likelihood of returning to the home country at the end of the authorized U.S. stay. In such cases, the alien must be able to show that he or she is leaving behind immediate family members or has permanent obligations with the home country such as a full-time permanent job or a mortgage for a home. Other notable grounds for visa refusal are "insufficient documentation (in general)" and "inadmissibility". A denial based on "insufficient documentation" is one in which a necessary document (e.g. alien's bachelor's degree or equivalency in an H-1B visa application) was missing in the application. "Inadmissibility" grounds cover all grounds of inadmissibility listed in Section 212(a) of the Immigration & Nationality Act including health-related, criminal, public charge, misrepresentation and unlawful presence. Some of the inadmissibility grounds such as an alien's prior unlawful presence in the U.S. (for more than 180 days after April 1, 1997) or an alien's previous removal from the U.S. (deportation) can preclude admission for several years. Although consular decisions are generally not reviewable by U.S. courts, aliens with visa refusals may have several remedies. The best course of action depends upon the facts of each case including the consular officer's grounds for denying the visa. Perhaps there may be more than one viable option such as requesting reconsideration and/or supervisory review, submitting an application at another consular post, reapplying at the same consular post and seeking an advisory opinion from the State Department. Aliens and employers of aliens faced with visa denials should consult a qualified immigration attorney. |
