Applying for Visas

A visa is a sticker placed in one’s passport by the State Department, usually through a U.S. Consulate outside the U.S., reflecting that the alien is authorized to appear at a border or port for inspection. It is not automatic approval for entry. Once the visa is used for entry, its expiration does not affect the validity of that stay, which is instead governed by the I-94 card issued by the port inspector. Once a visa has been used up, expired, or cancelled, a new visa must be obtained to seek a new admission to the U.S.

The most important practical questions about visas are whether to apply for one, where to apply, and how to avoid inadmissibility.

Whether to Apply for a Visa

Certain tourists and business visitors are exempt from the visa requirement for short visits under one of several visa waiver programs.

Most temporary visitors in any nonimmigrant status may return from travel to Mexico or Canada (and nowhere else) for up to 30 days on an expired visa, which is deemed “automatically revalidated” for re-entry in the new status, even if the new classification is different from the visas. Automatic revalidation is not available if the person applies for a new U.S. visa while in Canada or Mexico, or if the person is from a country deemed a “state sponsor of terrorism.”

In addition, Canadian citizens have special exemption from the visa requirement for any classification except E investors and traders and K fiances; they need only appear at the border, port or airport with the types of evidence other people would use to apply for a visa, and they are allowed entry. Canadian visitors are not even provided an entry card but are effectively admitted for six months.

Where to Apply

Most visa applications are made at the U.S. Consulate in the applicant’s home country, but not always. The one U.S. consulate that must accept your application is the one having jurisdiction over the place of your residence. For persons in countries where there is no U.S. consulate (i.e., Iran and certain “hot spots”), known as “homeless” aliens for consular purposes, the State Department has designated another country for application. An applicant who is or will be physically present in another country may apply there, but the consulate has discretion to refuse the application on the grounds that it should be reviewed in the country where the consulate has more familiarity with the applicant’s circumstances.

The U.S. consulates in Canada and Mexico are popular places for applicants who are already in the U.S. but somehow ineligible to extend stay or change status within the U.S. or who just want to obtain a visa stamp for sudden travel elsewhere later. Consulates in Mexico will not even schedule a third country national for an interview unless the person is renewing a visa in the same classification as before. Applicants making a trip to Canada or Mexico purely for a new visa should realize that the consulate may choose to refuse the visa for discretionary reasons, such as unfamiliarity of that consulate with document characteristics or schools in the applicant’s home country. If the applicant does not have time left on a prior visa (and if the consulate in Canada or Mexico does not cancel that), the applicant will have to travel to the home country and arrange a visa interview there in order to get back into the U.S.

With some important exceptions, the visa of a person who has overstayed on that visa is automatically cancelled, and the person must obtain all future visas in his country of nationality. Determining whether the prohibition against “third country” visa applications has taken place, or whether an exemption may apply, can be quite complex.

It was previously the case when someone physically present in the U.S. sought to renew an existing visa in E, H, I, L, O, or P status (for purposes of future re-entries from abroad), she would be able to make the application to an office of the State Department within the U.S. in a process commonly called “visa revalidation.” However, as of June 23, 2004 the visa revalidation service was discontinued by the State Department.

How to Apply

Visa applications to a consulate are made electronically, but an interview may be scheduled through methods that can vary based on each consulate’s local procedures and the applicant’s situation. Most U.S. consulates provide reasonable explanations of their local procedures on their respective web sites, which can be accessed through a State Department embassy and consulate listing.

Variations among consulates include: how to schedule the appointment (phone, online), how far in advance appointments are available, whether the visa application form must be completed online before an interview can be scheduled, where to pay the visa fee, and how and when the passport with visa will be returned. For applicants’ planning purposes, the State Department publishes “Visa Wait Times” reflecting the period of time applicants in certain classifications typically must wait to obtain an appointment and the time after interview most applicants must wait to receive the passport and visa.

Based on congressional requirements, almost all applicants must be personally interviewed. Consulates are allowed (but not required) to waive interviews for applicants who are under age 17, over age 59, eligible for an official or diplomatic visa, or renewing a visa in the same classification at the same consulate within one year of the previous visa’s expiration. Other interview waivers can only be made in “unusual circumstances.” But consulates can choose to require an interview of any applicant. Even if the interview is waived, the applicant normally must appear for fingerprinting at the consulate unless he or she has been “ten printed” in a previous application (since 2007). Children often need not appear with their parents, but they must be physically present in the consular district when their parents apply. Even adults with interview and fingerprint waivers are supposed to be physically in the country of application while the application is pending.

Consulates are conducting more rigorous screening of applicants against security lookout lists and technology protection lists, and questions about an applicant’s identity and purposes occasionally take weeks or months to resolve, while the applicant is stranded outside the U.S. For these reasons, visa applications should be made as early as possible. In most cases visas can be issued as much as 90 days before actual travel. People already in the U.S. should make careful arrangements before traveling abroad and should consider avoiding international travel.

The primary visa application form for all temporary visas is DS-160. It must be completed online on the State Department’s web site in order to print a bar code that a consulate can scan to avoid retyping the data. The answers to the form’s extensive and seemingly mundane questions can have complex and unanticipated consequences in some cases.

All visas in all countries require a $140 machine readable visa application fee. H, L, O, P, Q, and R visas require $150 instead. E visas require $390 instead. An additional “reciprocity” fee can be required, depending on the country of the applicant’s nationality and the visa classification requested, according to a “reciprocity schedule” available on the State Department’s Reciprocity Tables. All applicants require a digital passport photo conforming to specifications that are increasingly enforced, particularly concerning a light background and no head covering except in special circumstances.

The supporting documents required, in addition to evidence of nonimmigrant intent (where applicable), depend on the classification involved. At least three layers of rules concern who is eligible for a particular visa classification and the documents needed to prove eligibility: the Immigration and Nationality Act, State Department regulations, and an internal (but publicly available) State Department instruction book for the consulates called the Foreign Affairs Manual (Volume 9 for visa matters). The State Department also occasionally sends “Visa Policy Updates” to consulates to disseminate new procedures and to emphasize certain points. Some of these updates are made publicly available on the State Department web site.

When a visa is issued, a machine-readable sticker is placed in the applicant’s passport. The visa sticker contains the applicant’s photo, type (normally “R” for “regular,” as opposed to diplomatic), classification (i.e., “B-2,” “H-1B,” etc.), the number of times it can be used (“M”; for multiple, or a specific number), and expiration date (the period of time during which it can be used to seek admission to the U.S.). Some visas include “annotations” about any underlying USCIS petition, the principal applicant being accompanied, or waivers.

Sometimes the consulate uses the annotation to send non-binding signals to U.S. immigration inspectors and adjudicators, who may have access to the consular notes in the State Department’s “Consular Consolidated Database” (CCD). For instance, an annotation “no EOS/COS” suggests special concerns about nonimmigrant intent in a borderline case, in effect asking that no extension of stay or change of status be granted. Someone with such an annotation should seek legal counsel before applying for extension or change. On the other hand, an annotation such as “prospective student” alerts the USCIS that the application has disclosed an intent to change from visa to student after entry, increasing the chances that an application to USCIS for such a change will be granted. Visa holders unclear about the import of a visa annotation should seek legal counsel.

If the visa is to be denied, the consular officer is supposed to obtain supervisory review first, but this review is sometimes quite cursory and automatic particularly in visitor visa cases. The consulate is supposed to give written reasons for denial, but often the notice states only “214(b),” “221(g),” or “212(a)(6)” without any clarification. An applicant receiving denial should ask for written particulars about the reasons. While there is technically no legal “appeal” from a visa denial, often legal counsel can take meaningful steps to obtain further review of the application based on clarified or additional evidence and legal argument, using complex procedures including seeking “advisory opinions” from the State Department in Washington, D.C.

Avoiding or Overcoming Inadmissibility

The consulate can deny a visa not only if the applicant is not eligible for the classification sought but also if the application is subject to one of a long list of inadmissibility grounds set out in the law. The DS-160 form asks about many such grounds, but sometimes inadmissibility is determined through a State Department investigation or database, through interview, or through other information in the application.

Consulates increasingly have access to a wide range of data about past overstays, encounters with immigration officers, criminal arrests, and student or exchange visitor irregularities. Any concerns about inadmissibility should be brought to the attention of legal counsel. An applicant who is tempted to lie on an application should know that a misrepresentation, later discovered by the government (even years later) can result in permanent inadmissibility with only a limited waiver available (and could even unravel permanent residence subsequently obtained).

If the applicant has had an arrest within the past two years or any conviction ever for driving under the influence of alcohol, the consular officer MUST refer the applicant to a locally designated medical clinic for examination about whether the applicant poses a danger. Applicants referred for medical exam should seek legal counsel.

Legal counsel may be able to assist an applicant in preventing or overturning a finding of inadmissibility at several levels. When faced with some grounds of inadmissibility, particularly a past misrepresentation in an immigration matter, a consular officer is required to take the initiative to request an “advisory opinion” from the State Department’s “Visa Office” in Washington, D.C., even if through a simple email. In those or other situations, the applicant’s counsel may request such a review and make arguments in it. Often part of the effort is to present new evidence to allow a full, fresh review.

After a finding of inadmissibility, the consulate is to notify the applicant if a waiver might be available and provide forms for waiver application, which the consulate forwards, with an important consular recommendation and explanation, to the applicable overseas U.S. immigration office for review and decision. This process often takes only a few days but can take 6 weeks or more while the applicant waits, stuck outside the U.S. Legal representation in a waiver application is highly advisable.

Inadmissibility grounds can also present a problem in the U.S. immigration inspection, even after a visa is issued.

How We Can Help

We assist clients in evaluating and comparing the seemingly innumerable visa classifications for which they might be qualified, whether a visa will be required (and if not required whether it should be obtained anyway), where and how to apply, and how best to accomplish entry. We advise clients about inadmissibility grounds that may apply and assist in waiver applications and appeals from denials of them. We assist clients in seeking review of visa denials. We represent clients in removal proceedings, where available if they are found inadmissible. We help clients seek remedies even when they have been removed at the border without a hearing. We help clients maintain their status and extend and change it to meet new goals. We also plan and take appropriate steps toward permanent residence, coordinating such plans and steps with the temporary status.

Consult with us for assistance with a case.

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