Immigration & Green Card Law Firm, Lawyers, Attorneys: San Franscisco Bay Area to San Jose: Visa Story: Consular Processing

Saturday, June 16, 2007

Visa Story: Consular Processing

Do you wish to apply for a visitor, student, or other visa to enter the U.S. but feel worried that the U.S. Consulate in your home country will not issue you a visa? Have you changed your status in the U.S. and need to travel overseas but do not have the visa to return to the U.S.? Do your friends tell you that nearly all visa applications are denied after change of status or that it is impossible to obtain a visa at your specific consulate? Do you wonder how you might strengthen your visa application? As a practitioner, we see two extreme attitudes in people when it comes to consular processing. Some people are unnecessarily afraid of applying for visa at a U.S. Consulate and try to avoid applying for visa at all cost, including being and feeling trapped in their own country and/or lying on the visa application forms, if they choose to apply. In contrast, there are visa applicants that are too casual about the process and as a result apply for a visa without taking the due care in preparing the application or reading it carefully. Too often, these individuals carelessly omit important information and don’t realize that this can cause problems for them later on. In this article, I hope to dispel some of the worries described above and help visa applicants to get prepared better for better and more successful consular processing.

1. When do I need to apply for a non-immigrant visa?
Visa stamps are for travel to the U.S. According to the purpose of the travel, one must have the appropriate visa. For example, if one is coming to the U.S. for short-term travel, a visitor’s visa or a visa waiver will do (in countries where such a short term visa is unnecessary); if one is coming to study in the U.S., one must use a student’s visa; if one is coming to engage in a gainful employment, then one must receive a suitably work-authorized visa; etc.

2. Applying for Visa after Change of Status
Many people who have changed their status with the INS after a previous entry (e.g., from B-2 to F-1, F-1 to H-1B, etc.) show great concern about getting a visa for their new status and next U.S. entry (after leaving the country for the first time). Is it true that Consulate Officers do not issue a visa to people who have changed their status while in the U.S.? It depends.
What did you say when you first applied for that visa under which you came to the U.S.? The consulate official will look up that record and read the file. And there will be notes! If you said you were going to visit a family member and, during your first trip, found an employer and changed status, the Consulate Officer would probably wonder if you had an intent to work in the U.S. when you applied for a visitor’s visa. However, if you had been using the visitor’s visa for years, coming and going many times and during one’s last trips an employer approached you, or an unforeseen opportunity arose, the Consulate Officer might be less suspicious.
Also, even on an ‘old’ visa, it is important to remember that when you present your visa to the Inspector at the border, you are again promising you will stay within the boundaries of the visa’s conditions. If you enter using the visitor’s visa and applied for a work-authorized visa within a few weeks, Consulate Officers as well as the BCIS will assume that you were dishonest with the Inspector. However, if you happen to change your mind during a rather long trip, and later in the trip, it is less likely that you had it planned a scheme to change status all along.
Did the succession of events take a natural course? When someone enters the U.S. under F-1, completes over several years the planned course of study, and then after graduation finds a job to gain more experience, there is no doubt that the visa applicant had an intent to be a full-time student when he/she entered on the F-1, and such change to H-1B later becomes much more acceptable, both to INS and later to the U.S. Consulate.
For these reasons, any experienced and qualified immigration lawyer will fully explore and question you about your visa/U.S. entry history and, only then, advise you accordingly. Before deciding to change status, have a thorough discussion with your attorney to see if it might be more preferable to return to one’s home country and return to the U.S. with a visa instead of changing status and then feeling that it is too risky to leave. That is no way to live, feeling like a prisoner even if in the U.S.

3. Be Prepared, Be Truthful!
When applying for a visa at the U.S. Consulate, first try to get the most updated information by visiting the Consulate’s website. Then, fill out the application forms carefully and thoroughly. Uncompleted or partially completed forms will raise a red flag to the visa officer immediately. They are trained to presume the applicants are lying and omissions look to them like an attempt not to tell the truth. You are hiding something! Make sure to attach all the required documents and know your case. When we prepare our clients, we demand that they fully understand what has been stated in their visa petitions (already approved by BCIS) and in their change of status applications as well. If we are presenting their E-2 (Investor) case, they are given a complete copy of their package and we want them to read it as if studying for a test. If an interview is required, one must listen to the question and answer truthfully. Do not make the common mistake of “not answering the question” or repeating rehearsed answers. Do not lie on the application. Visa fraud, or the making of a material misrepresentation at the U.S. Consulate or at entry is a ground for deportation/inadmissibility and more often than not has no waivers.

4. S.214 (b) Denial
Commonly s.214(b) is used as a ground for NIV denial because the applicant fails to establish strong ties to the home country and therefore it is unlikely in the mind of the official that one will return. What applicants do not understand, however, is s.214(b) is more often invoked because the applicant does not meet the standards of the visa category. For example, an applicant for a F-1 visa that has very low grades in his/her transcript will not be taken seriously for his/her intent to pursue further education in the U.S. Likewise, if an applicant for a religious worker visa does not have the membership, experience, and personal history to carry out the proposed duties in the U.S., his/her intent is more likely to be challenged.

5. How do I use a visa?
Finally, now that you have a visa in your passport, how do you use it properly? Although most people understand that a valid passport and a visa stamp in it are required for travel to the U.S., few people know when they need a visa or what its terms and limitations are. Nationals from certain visa-waiver countries such as Canada, Japan, Australia, most European countries, etc., are often used to traveling to the U.S. without having to obtain a visitor’s visa. These individuals in many ways are just as likely to be naive about the necessity and conditions of their entry.
When a foreign national enters the U.S. and presents a ‘visa’ to the inspector, he/she is making a certain presentation. In particular, the entrant is promising to behave within the boundaries of the visa and not to abuse it. In the case of a national from a visa-waive country, if he/she enters the U.S. without another visa, he/she is coming in only for a temporary visitor’s purpose and not to work or reside in the U.S.

What if you have several visas in your passport? You must use the visa that is most appropriate for the purpose of your entry. For example, a foreigner may have a visitor’s visa as well as an H-1B visa, and both visas are valid for the next few more years. When the foreigner is entering the U.S. for his/her H-1B employment, he/she must use the H-1B visa so that the inspector at the border will assign an appropriate status to the entrant. If his/her H-1B employment has been completed, and the entrant is only entering for a short visit, the entrant must use his/her B-1/B-2 visa.

Once in a while, a permanent resident, who has been abroad for an extended period of time, might contemplate re-entering the U.S. as a visitor. This is an act that practically renounces his/her permanent residence. A permanent resident should always be able to show his/her intent to make the U.S. his/her permanent home.
In conclusion, keep a clean history, make certain you apply for the appropriate visa category, and if you have a long-term goal, consult a qualified immigration attorney. Remember that proper visa usage is extremely important for any future changes of plans – whether it is to continue education, to gain work experience, to later marry someone you love in the U.S.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

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