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Allen and Hodgman | Getting a Visa at a Consulate
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Getting a Visa at a Consulate

   

Visa Application Approved Stamp Shows Entry Admission AuthorizedPeople are often confused by the word “visa.” A nonimmigrant visa is a stamp or transparent foil that is placed in a passport. All visas are issued by a United States consulate outside the United States. Visas are issued by the Department of State. A visa is not the same as a petition, which is filed with a USCIS office in the United States. A visa is not the same as an I-94, which is a small white card issued by the DHS at a port of entry.

A nonimmigrant visa permits a person to apply for admission to the United States at a port of entry. All visas have an issue date and an expiration date. You must apply for admission during the validity period of the visa. However, the validity period of the visa does not determine how long you may stay in the United States. You may be admitted for a longer period or a shorter period. For instance, you may have a B visa which is valid for ten years, but you may only be admitted to the United States for six months. On the other hand, you may have an H-1B visa which is valid for just ninety days, but you may be admitted for three years. The visa controls when you may apply to enter the United States. The I-94 controls how long you can stay in the United States.

The general rule is that every foreign person seeking to enter the United States must have a valid visa. However, there are exceptions. Canadian citizens don’t need visas, except for E visas and K visas. Tourists and business visitors from thirty-eight countries may be admitted for a maximum of ninety days without a visa under the visa waiver program. Click here for a list of these countries. Before using the visa waiver program, you must first get online clearance through the ESTA program.

Generally, you must apply for a visa in the foreign country where you live. However, it is sometimes possible to obtain visas from the U.S. consulates in Canada or Mexico. The rules and practices relating to issuance of visas to third country nationals at these posts are complicated and change frequently.

The U.S. has now implemented an online application form for nonimmigrant visas called the DS-160. This is a long and complex form which must be filled out carefully. The form can be found here.  Application fees now vary. Click here for a list of the current visa application fees. There may be additional fees called reciprocity fees, depending on your visa category and your nationality. In addition, you may need other supporting documents, depending on the visa category. To obtain an H, L, O, or P visa, you must first have an approved petition from an INS Service Center. To obtain an E visa, you must submit extensive documentation of your business plans. To obtain an F visa, you must have an I-20 issued by the school you plan to attend. A J visa requires an DS-2019.

Many visa categories, including B, F, M, and J, require that you intend to return to your home country after your visit to the United States is completed. The most common reason for refusing these visas is that the consular officer believes the applicant intends to remain in the U.S. permanently. This is called a 214(b) refusal. You must present evidence of strong social, economic, and family ties to your home country to prove you do not intend to immigrate to the U.S. By contrast, the H-1B, L, O-1 and E categories do not have this requirement.

You may also be refused a visa if you fall under one of the categories of inadmissible people in section 212(a) of the Immigration and Nationality Act. This includes people who have been convicted of certain crimes, people who may be security threats, people who have overstayed previous visits by six months or more, people who have been deported, and many other categories. There are waivers available for most grounds of inadmissibility.

As a result of security concerns after September 11, there are many new procedures for checking the identity and prior history of all visa applicants. This can result in very long delays, especially if your name is similar to a person in a government security database. People who need visas should apply well in advance of their need to travel to the U.S.

Immigrant Visas

Immigrant visas are part of the Green Card process. All family-based and employment-based Green Card cases require an approved petition – usually an I-130 or I-140 – from the INS. You may also qualify as a lottery winner. Once the petition is approved, the beneficiary must wait until her priority date is current, if it is not current already. At that point, a person lawfully in the United States in nonimmigrant status may choose to adjust status in the United States, and get her Green Card from USCIS A person who is outside the United States, or in some cases a person who is in the United States will apply for an immigrant visa at a U.S. consulate in her home country. If you indicate on your immigrant petition that you intend to consular process, the National Visa Center will send you or your representative information about the application process once your immigrant petition is approved and your priority date is current or close to becoming current.

Once all the documentation is received by the National Visa Center, an appointment will be scheduled in several months. You will then go to the city where the U.S. consulate is located. You will have to get medical exams, vaccinations if needed, and photos. You will then attend an interview at the consulate. If all goes well, you will be issued your immigrant visa, which is valid for six months. You will then travel to the United States within that time and present your visa to the INS at a port of entry. Your passport will be stamped with a temporary I-551 stamp. In a few weeks your actual Green Card will arrive in the mail.

As with nonimmigrant visas, you can be refused an immigrant visa if you are inadmissible. In some cases a waiver will be available.

We can help guide you through the minefields of your visa application.