Processing for Consular Nonimmigrant Visas
Most aliens wishing to come to the US for business, study or pleasure on a temporary basis can obtain a nonimmigrant visa at a US consulate. Exceptions exist to nonimmigrant visa requirements for entry into the US, such as the no visa requirement for 90-day visits for aliens with electronic passports from specific countries in the Visa Waiver Program, parolees, and Canadians seeking entry in categories other than the E visa. Residents of Mexico or Canada can enter for limited time and distance with a border-crossing card, or “laser visa”, which is considered a B1/B2 visa. Otherwise, the vast majority of the remaining people who enter the US each year require a visa.
How do I apply via a consulate?
The process for obtaining a visa can vary from consulate to consulate, but there are some basic, common elements to the process. Applicants for nonimmigrants visas are generally required to submit a form DS-156 with a photograph meeting current Department of State specifications (currently a passport photo), males (and females from certain countries) are required to complete a Form DS-157, and DS-158 is required of certain F, J and M visa applicants. Nonimmigrant visa applicants must also proof of eligibility for the type of visa sought (including an approval notice from USCIS in certain categories) and proof of payment of the machine readable visa application (“MRV”). The individual consulate may also require special forms. Other documents required depend on the type of visa sought. Also, the applicant must have a valid, unexpired passport.
What restrictions are there for applying via a consulate?
Post 9-11 procedures restrict many of the options available to
aliens for processing. For example, visa-exempt status is no
longer available to aliens landed in Canada from former
commonwealth countries. Furthermore, the DOS established lengthy
security clearance procedures after the visa interview for males
and females over the age of 16 from “State 6” nations* and males
over the age of 16 from the “List if 26 Countries.” The delays
for these individuals can be from a few days to several months,
but most are completed in 30 days or less. Applicants from the
People’s Republic of China can also expect processing delays
arising from consular determination that the Technology Alert
List is not involved in the visa application. The Technology
Alert List involves a wide-range list of technology and skills.
All male applicants between 16 and 45 must complete a DS-157 form
that collects additional security-related information.
Most consulates require fee payment in advance of the visa application submission or consular appointment at a designated local bank. Many consulates, including Canada, require an appointment for the interview. For more information on appointments by consulate, visit travel.state.gov. Since 9/11, applications by mail are seldom allowed. The US Department of State decreed a small number of applicants who are eligible for the personal interview waiver. Individual consulate websites list the classes of those persons eligible for personal interview waiver.
How do I prove that I do not intend to immigrate to the US?
The essential element in obtaining most nonimmigrant visas is that the applicant must prove nonimmigrant intent. This means that the applicant must demonstrate, to the consular officer’s satisfaction, intent to leave the US after the authorized period of admission is over. This involves showing ties to one’s home, such as family, employment, etc. A consular will presume intent to immigrate until the applicant establishes that the applicant qualifies as a nonimmigrant. The presumption of immigrant intent does not apply to H-1, H-4, L-1 and L-2 visa applicants. Applicants for visa types E, O-1 and O-3 are also exempt from the proof of foreign residence requirement.
Where is the application accepted?
The visa application is most often accepted at the consulate in the applicant’s home country. An applicant who does not have residence in the country where an application is made for a nonimmigrant visa, or is a third country national, may encounter problems with acceptance by the consulate. However, the Department of State recommends consulates accept applications from those applicants physically present even if they are out of their jurisdictions** unless the consular officer has a valid reason for rejection. Most consulates require treaty trader or treaty investors to apply in the applicant’s country of origin. Also, if the applicant has overstayed a previously issued visa, they are required to return to the consulate in their home country to obtain a new visa. Applicants from countries where the US lacks a consulate (such as Iran) are normally permitted to apply at designated consulates.
US Consulates in Mexico and Canada frequently accept applications from nationals of third countries. You can book appointments in Canada by going to www.nvars.com. In Mexico, go to http://www.visa-usa.com.mx/.
Can I appeal the decision if my application is denied?
If the visa application is denied, there is no possibility to review that decision. Re-application is normally permitted, but the denial rate is usually high in such cases. Some consulates limit the number of re-applications as well as how much time must pass before a re-application is permitted.
What happens if the visa is granted?
If it is granted, a machine-readable visa is placed in the applicant’s passport. The visa will state what class of visa it is, for how long it is valid, and how many entries for which it is valid.
The visa stamp will have a validity date that will determine how long an applicant has to enter the country. The period of authorized time in the US will be determined by a port of entry officer and may go past the expiration date of the visa.
*State 6 countries are those deemed by the US government to be sponsors of terror and include: Iran, North Korea, Cuba, Syria Libya, and Sudan. Iraq, formerly included, was removed from the list in October 2004, but Iraqis may undergo security checks regardless.
** Jurisdiction is established by various factors including, citizenship, residence, and discretionary jurisdiction.
Gregory Siskind, Esq. is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.