Nonimmigrant Visa Processing

NONIMMIGRANT VISA PROCESSING

There are two ways to apply for a nonimmigrant visa. An individual can apply at a U.S. consulate abroad. Depending on the type of nonimmigrant visa, a previously approved nonimmigrant petition filed with the USCIS may be required. If the individual is already in the United States and maintaining a valid nonimmigrant status, he or she may apply to USCIS for extension or change of status without need of departing from the United States during the pendency and beyond the expiration of his or her current status up until the extension or change of status application is adjudicated. Application through a U.S. embassy or consulate abroad is called “consular processing” while application made while in the United States is called “extension of stay” or “change of status,” as the case may be.

This section discussed applications for nonimmigrant visas through consular processing.

Visa Exemptions

Before a foreign national can enter the United States in a nonimmigrant status, he or she must obtain a visa from a U.S. consulate abroad. There are a certain exceptions to this rule, including the following:

• In general, citizens of Canada traveling to the United States for a temporary purpose need only present to the immigration officer at a port of entry documentation showing they are eligible for admission to the United States. This exception does not apply to certain travel purposes, including those falling under A, G, NATO, E, K, and S categories.

• Citizens of Canada seeking admission as a NAFTA Professional (TN) may enter the United States to work in a pre-arranged business activity for a U.S. or foreign employer without need of a visa. However, a Canadian residing in another country with a non-Canadian spouse and child will need a visa to enable the spouse and child to apply for a visa to accompany or join the NAFTA Professional.

• Nationals of foreign countries participating in the Visa Waiver Program (VWP) may enter the United States without a visa, provided they meet the requirements of VWP.

The Visa Waiver Program permits the arrival of aliens into the United States without a visa if they are citizens of certain designated countries visiting the United States in the B category.  The program is available to nationals of countries with good “track records” of tourists and business persons who abide by the terms of their admission to the United States and do not work or overstay their visits. Currently, there are 36 countries participating in the Visa Waiver Program, as follows:

Andorra Hungary New Zealand
Australia Iceland Norway
Austria Ireland Portugal
Belgium Italy San Marino
Brunei Japan Singapore
Czech Republic Latvia Slovakia
Denmark Liechtenstein Slovenia
Estonia Lithuania South Korea
Finland Luxembourg Spain
France Malta Sweden
Germany Monaco Switzerland
Greece The Netherlands United Kingdom

Nationals of the above enumerated 36 countries may use the Visa Waiver Program under the following conditions:

• They have received an authorization to travel under the VWP through the Electronic System for Travel Authorization (ESTA).
• They present passport valid for at least 6 months past their expected stay in the United States.
• The purpose of their stay is for B visa category, i.e., business or tourism.
• Their visit to the United States is for 90 days or less.
• If traveling by air or sea, they are traveling on an approved carrier and have a return trip ticket to any foreign destination.
• They can demonstrate sufficient funds to support themselves while in the United States.

Aliens coming under this program are allowed to stay for a maximum period of 90 days only and they cannot extend or change nonimmigrant status. Hence, aliens who are planning to change their status or request for extension of stay should not seek to enter the United States through the Visa Waiver Program but should seek the appropriate visa at a U.S. consulate abroad.

The Visa Waiver Program also makes an alien coming to the United States through this program ineligible to apply for adjustment of status, unless he or she is an immediate relative of a U.S. citizen or is eligible for adjustment under Section 245(i) of the INA.

• Citizens of Bermuda traveling to the United States for up to 180 days do not require a nonimmigrant visa, except for certain travel purposes, including those falling under A, G, K, and S categories.

• Citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) by birth and those citizens of the former Trust Territory of the Pacific Islands (TTPI) who acquired citizenship in 1986 are entitled to travel and apply for admission to the United States as nonimmigrants without visas. Immediate relatives of FMS/RMI birth citizens and former TTPI citizens may also benefit from this visa exemption provided they meet certain requirements.

General Procedure

The first step to apply for a nonimmigrant visa is to fill out the DS-160, a web-based form that consolidates all the information previously collected on the DS-156, DS-157, and DS-158 for appropriate applicants, and the DS-3052. This electronic form is available on the Department of State website. Currently, this form applies to all nonimmigrant applicants, except K visa applicants who must use DS-156, Nonimmigrant Visa Application. The information entered on the DS-160 combined with the personal interview and supporting documentation form the basis for determining an applicant’s eligibility for a nonimmigrant visa.

After completing the DS-160 application online, the applicant must pay the required visa application fee. The applicant must also schedule an interview with the U.S. embassy or consulate at which he or she wishes to be interviewed. At the interview, the applicant must be prepared to present supporting documentation depending on the type of visa applied for.

Different consular posts may have different rules on how to schedule an interview and pay the visa fee. Applicants for nonimmigrant visas must visit the website of the U.S. embassy or consulate where they intend to apply for additional country-specific instructions.

Each family member, even infants, accompanying a visa applicant must submit a separate nonimmigrant visa application, with supporting documentation.

Categories Requiring Approved Petitions

For H, L, O and P nonimmigrant visa categories, a prior petition approved by USCIS is required. Petitions for classification under these categories are filed with USCIS on Form I-129, Petition for Nonimmigrant Worker. The petition must indicate whether the beneficiary is applying for a visa at a U.S. embassy or consulate abroad or requesting for an extension or change of status. If a petition indicates that the beneficiary will apply through consular processing, the petition and supporting documentation must be submitted in two copies. Once approved, the USCIS will forward the duplicate copy of the approved petition to the designated U.S. embassy or consulate.

The transmittal of the approved petition to the U.S. embassy or consulate may take considerable time. To avoid delay, the beneficiary may apply for a visa as soon as he or she receives a copy of the Form I-797, Approval Notice. An attorney-certified copy of the petition may be presented by the applicant if required. However, the consulate may require the actual approved petition from USCIS and defer processing the application until such arrives.

If the applicant changes his or her choice of consulate after the petition has been approved and forwarded by USCIS to the designated consulate, the petitioner may request that the new consulate or port of entry be notified of the previous approval of a petition. Such a request must be made on Form I-824, Application for Action on an Approved Application or Petition and filed by the petitioner with the USCIS service center that approved the petition. The Form I-824 application could take several months to process which could result in significant delay in obtaining a visa. .

Nonimmigrant Intent

In most cases, refusal of nonimmigrant visa applications at the consular post is based on Section 214(b) of the INA. This section provides that foreign nationals seeking entry on nonimmigrant status, with a few exceptions, are presumed to be intending immigrants. If visa is refused under this section, this means that the applicant has not been able to overcome the presumption that he is an intending immigrant by demonstrating strong ties to his home country and that he has a residence in his home country that he has no intention of abandoning.
There are no hard-and-fast rules on what type of evidence will satisfy the requirement for demonstrating strong ties to the home country. Ties are the aspects of one’s life that bind him or her to his or her place of residence. Ties include family relationships, employment, and property ownership or possessions. Other factors may also be relevant, such as the applicant’s educational background, status in the society, and prospects of employment in the place of residence. The following is a list of documents typically required to be presented at the interview to establish strong ties to the home country:

• Bank statements for the last three (3) months and both current and former bank account passbooks
• Employment certification including salary, tenure and position
• Form W-2
• Income tax returns
• Audited financial statements
• Paycheck stubs for the last three (3) months
• Credit card statements for the last three (3) months
• Vehicle registration
• Real property titles or other proof of ownership
• Pictures of family, home or business
• Wedding photos
• Marriage certificate (original or certified true copy)
• Birth certificate(s) of child(ren) (original or certified true copy)
• For students, certificate of school registration
• Certification of membership to legitimate organization(s)
The presumption of Section 214(b) does not apply to the following visa categories: H-1B, H-1C, H-4, L-1, L-2, and V. These are the so-called “dual intent visas.” The regulations provide that the approval of a permanent labor certification or the filing of an immigrant petition for an individual shall not be a basis for denying an H-1C or H-1B petition or a request to extend such a petition, or the individual’s admission, change of status, or extension of stay.

Visa Issuance or Denial

The consular officer who conducted the interview will inform the applicant at the conclusion of the interview whether he or she qualifies for a U.S. visa. If the applicant qualifies for the visa, the applicant will be required to submit his or her passport for visa stamping. The passport with the U.S. visa stamp will be delivered to the applicant in accordance with the procedure of the particular consulate issuing the visa.

If a visa cannot be issued to the applicant, the consular officer will inform the applicant of the legal and factual bases for the denying the application, unless the facts cannot be disclosed because they are classified. As the case may be, the consular officer may provide the applicant an opportunity to submit additional evidence to establish his or her eligibility for a visa before denying the application.