 Getting
a Visa
Nonimmigrant visas
People 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, not the Department of Homeland Security (DHS - formerly the INS). A visa is not the same as a
petition, which is filed with a DHS office in the United States. A
visa is not the same as an I-94, which is a small white or green
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 thirty days. 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. (As of March 13, 2003, there are no longer any special benefits for Canadian permanent residents.) Tourists
and business visitors from twenty-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.
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 constantly changing. Advance appointments
are required and can be booked a through an
on-line
reservations system. This should be done cautiously, however. If
you apply for a visa in Canada or Mexico, and the visa is refused,
you will not be able to return to the U.S. with just an I-94, as you
could in the past.
All visa applicants must fill out a form called a DS-156. Because of security concerns following September 11, a new form must be filled out by all males age 16-45. This is DS-157. As of July 25, 2002, all applicants for F, M and J
visas must also fill out form DS-158. These and other
visa forms may be found in fillable form by
clicking here. There is also an application
fee of $100.00 U.S. 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, evidenced by an
original form I-797. To obtain an E visa, you must fill out the
special E supplement to DS-156 and 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, L, O 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 nonimmigrant
waivers available for almost all grounds of inadmissibility other
than terrorism.
As of July 16, 2004, you will no longer be able to revalidate
your visa by mail in the United States. This program has been
cancelled because of the new fingerprint requirement. After this
date, you will only be able to apply for a new visa abroad. For the
same reason, consulates now require personal interviews of
nearly all applicants.
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. People who are in the U.S. should avoid
unnecessary travel abroad, if a new visa is required for reentry.
Every U.S. consulate has its own rules and practices. Check the
consular
web site to find out more about the post you will apply to.
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 the INS. This can take as long as two years. A person who is outside the United States, or a
person who is in the United States but wants to speed up the process, will apply for an immigrant visa at a U.S. consulate in her home country. Usually, the National Visa Center will send you or your representative a "Packet 3" once your immigrant petition is approved. This
includes an application for an immigrant visa and other documents and instructions. In some cases the application is returned to the National Visa Center with the necessary fees, and in other cases it is sent to the consulate abroad.
An appointment will be scheduled in about four to six months. You
receive notice of the appointment through a letter from the
consulate or a "Packet 4." You will then go with your
family to the city where the U.S. consulate is located. You will
have to get medical exams, vaccinations if needed, and photos. If
yours is a family based case, you will need a completed Affidavit of
Support (I-864) from your sponsor. You may need additional I-864s
from co-sponsors if your sponsor lacks the necessary income or
assets. You will need passports, birth certificates, and marriage
certificates. You may need other documents depending on the nature
of your case. You will then attend an interview at the consulate. If
all goes well, you will be issued your immigrant visas. You will
then travel to the United States 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. You may need to obtain a waiver.
Are you trying to decide whether to adjust or consular process? Click here to learn more about the pros and cons.
We can help guide you through the minefields of your visa
application.
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