Overview of Nonimmigrant Consular Processing
If the alien is not visa-exempt, he or she must obtain a visa from a U.S. consulate located abroad prior to seeking admission at a port of entry. This article will provide a general overview of nonimmigrant visa processing at U.S. consulates.
Place of Application
Normally, the alien's residence is the determining factor for the place of his or her visa application. This is based on the view that a consular officer assigned to the country of the alien's residence is in the best position to resolve questions relating to visa eligibility. 22 CFR §41.101(a) requires that the consular officer accept nonimmigrant applications from visa applicants resident in that district.
Neither 22 CFR nor the FAM define the term "residence". However, "residence" is defined at INA §101(a)(33) as the alien's "place of general abode; the principal, actual dwelling place in fact, without regard to intent." In other words, the alien's residence is the place where the alien in fact lives and under most common circumstances from which the alien conducts his or her life.
This definition does not require the alien to have lawful permanent residence in such a place. Therefore, where an alien has been present in Canada for a significant period of time, perhaps under a work authorization, it may be possible to convince the U.S. consulate that the alien is in fact resident in the jurisdiction, at least within the meaning of INA §101(a)(33).
In addition, the regulatory language does not specifically require an alien with residence in the district to be physically present in that district, nor does it restrict the applicant's presence to any particular location, at the time of application. Some U.S. consulates in districts having relatively low levels of fraud may accept an application by mail from an applicant who is resident in the district but who is not physically present at the time of the application, especially where the applicant has previously been issued a visa by that consulate. If an application by mail is possible, it may be preferable to apply for a visa in this manner.
22 CFR §41.101(a) also permits the consular officer to accept a nonimmigrant visa application in a consular district in which the alien is physically present but not resident. However, the decision to accept or reject such an application is subject to the discretion of the consular officer. The FAM discusses the possibility of an alien applying for a nonimmigrant visa in a third country as follows:
Third Country Processing
The above language suggests that it is relatively easy for third country nationals to apply for visas at U.S. consulates located in Canada or Mexico. However, such consulates are in fact very reluctant to accept third country cases. Posts often reject third country nonimmigrant visa applications, citing limited resources or a lack of familiarity with the conditions in the applicant's home country. An applicant seeking a nonimmigrant visa in a third country should be prepared to explain why he or she did not apply in the home country. It is also important to document legitimate business or personal reasons for applying in that third country.
In a cable (State #061844) sent to all diplomatic and consular posts, the Department of State indicated that, as of April 15, 1996, it would be implementing a centralized system for the processing of third country nonimmigrant visa applicants at border posts (including U.S. consulates located in Canada). The system is now in place. The appointment system has also been extended to all applicants applying at consular posts in Canada, including landed immigrants.
- 22 CFR §41.101(a) permits an alien to apply for nonimmigrant visa issuance outside his or her home district at any consular district when physically present therein. While 22 CFR §41.101(a) gives consular officers discretionary authority to reject applications by persons who are physically present in but not residents of the consular district, the Department expects that such authority will seldom if ever be used.
- For example, the applicant might find it more practical to apply at the nearest consular office if return to the home district would be long and costly; or, because of requirements in many countries that passports remain in the possession of visitors and temporary residents (or of the police or other authorities) until the visitor's departure, the alien might not be able to mail the application and passport to the office in the home country consular district for possible issuance there.
The number within Canada is (900) 451-2778 and in the U.S. is (900) 443-3131. Operators can schedule appointments at any of the border posts for applicants calling from anywhere in the U.S. or Canada. There is also a new booking number in North America, which is (888) 840-0032. The number was added for the convenience of users whose office or hotel phones block "900" numbers.
For those who seek an alternative to the "900" number system, it is now possible to book a visa appointment through the Department of State's web-based Visa Appointment Reservation System. The cost is $30.00CAD, but you can probably expect to pay about that much, or more, using the "900" number system.
Consular Shopping Bar on Visa Overstays -- INA §222(g)
Recent legislative changes now limit the ability of third country nationals to seek visas at posts other than in their country of nationality. The enactment of IIRAIRA on September 30, 1996 resulted in the creation of INA §222(g). This provision prevents aliens who have remained in the United States beyond the period of their authorized stay from applying for a visa at any U.S. consulate other than in their home country unless "extraordinary circumstances" are present.
INA §222(g) applies to visas issued before, on or after the date of enactment (September 30, 1996). It also applies to any alien applying for readmission to the United States after the date of enactment, except where the alien is seeking readmission on the basis of a visa that was issued before the date of enactment. However, once the alien's visa has expired, he or she will have to return to the home country for any subsequent visas.
This provision would have created great hardship for landed immigrants of Canada since they would be forced to travel to their country of nationality if they fell out of status. However, a subsequent cable (State #225321) from the Department of State provided some guidance on the meaning of "extraordinary circumstances". "Extraordinary circumstances" will be found to exist where an alien having residence in a third country applies for a visa in that third country.
Other cables relating to INA 222(g) (State #225321, State #012764 and State #232219) were issued by the Department of State and, on January 7, 1998, the Department of State issued an interim rule on INA 222(g) and the meaning of extraordinary circumstances.
After the interim rule was issued, the Department of State issued a subsequent cable (State 051296 - March 23, 1998) regarding revised guidance on INA §222(g). State 051296 indicated that aliens who filed a timely application for a change of status or extension of stay and who remained in the U.S after the date on their I-94 but whose request was subsequently approved were not subject to INA §222(g). It also stated that an alien who filed a late application for a change or extension of status and whose application was approved retroactively was not subject to INA §222(g).
State 051296 adopted the INS' revised interpretation of unlawful presence for the purposes of INA §222(g). According to this new interpretation, an alien who enters on a noimmigrant visa will be subject to INA §222(g) only if either:
- The alien remained in the U.S. beyond the date stated on the I-94 or any extension (for cases where the alien has been admitted until a specified date rather than for duration of status), or
- INS finds a status violation while adjudicating a reques for an immigration benefit, or an immigration judge finds a status violation in proceedings against the alien (regardless of whether the alien was admitted for a date certain or for duration of status).
The above rules apply only to aliens who have entered under a nonimmigrant visa. Aliens who enter under the visa waiver pilot program, on parole, wihout inspection, or otherwise without a nonimmigrant visa are not subject to INA §222(g)
State 051296 also indicated that aliens who departed after the date on their I-94 but before the INS adjudicated the extension or change of status application were subject to INA §222(g). However, the Department of State reversed this position in State 136916 (July 28, 1998). This cable announced a blanket "extraordinary circumstances" exemption for aliens who filed a timely application for an extension of stay or change of status and who departed after their I-94 expired but before the INS had adjudicated their cases.
Recent correspondence received from H. Edward Odom, Chief of the Advisory Opinions Division of the Department of State's Directorate for Visa Services indicates that illegal employment or other violations of status do not fall within the INA §222(g) bar. In this correspondence, Mr. Odom explains that an alien who is the beneficiary of an H-1B petition filed by employer "A" for several months, and then who begins work for employer "B" prior to filing a new H-1B petition, is not caught by INA §222(g). Although the alien has violated her status, she is not an overstay since the H-1B petition filed by employer "A" has not yet expired.
Visa issuance fees are normally based on reciprocity with the country of the alien's nationality . The FAM will indicate what fee is applicable to a particular client's case. The reciprocity fee listings are available online. These listings appear on the web links page of this web site.
In addition to the reciprocal visa issuance fee, there is a surcharge of $65.00USD per visa application which represents cost recovery for the processing of machine readable visas. The fee increased to $100USD as of November 1, 2002.
The U.S. Consulate in Toronto has implemented a prepayment requirement for the machine readable visa (MRV) fee. Visa applicants must now prepay the MRV fee at a Bank of Nova Scotia and provide a payment receipt at the time of the visa interview. The only exception to this policy is for E visa applications, which are submitted by mail.
If the visa application is approved, the consulate will normally place a stamp in the passport of the applicant to evidence visa issuance . Visas may be valid for an unlimited number of entries . However, not all nationalities are entitled to multiple entry visas. The FAM will indicate whether or not a multiple entry visa is permitted for a particular country. The FAM will also indicate the maximum period of validity permitted for a particular country. However, a consular officer may issue a visa that is valid for less than the maximum period of validity permitted .
Grounds of Exclusion and Waivers
The INA contains numerous grounds of exclusion which, if found to be applicable, will prevent an alien from being granted admission to the United States. These grounds of exclusion appear at INA §212(a). An alien who is excludable will not be issued a visa. However, even if an alien is excludable, it is often possible to obtain a waiver to enter the United States for nonimmigrant purposes. Pursuant to INA §212(d)(3), an alien who is inadmissible under most grounds of exclusion may be admitted temporarily as a nonimmigrant despite his or her inadmissibility.
Visa exempt persons may apply for an INA §212(d)(3) waiver directly to the INS District Office having jurisdiction over the place of intended entry. However, aliens requiring visas must first apply for their visa at the U.S. consulate and then request a waiver after the interview has been completed.
The U.S. consulate will forward the waiver application to the INS for adjudication. In addition, the consular officer may make a recommendation directly to the INS that the waiver be granted . Such consular recommendations are given great weight by the INS. Consular officers are permitted to recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc. In cases of ineligibility for other than security reasons, the consular officer must weigh such additional considerations as the period of time that has elapsed, the seriousness of the crime or offense, type of disability, reasons for the proposed travel to the United States and the probable consequences, if any, to the public interests of the United States .
Nonimmigrant visa refusals must be based on legal grounds, that is, one or more provisions of INA 212(a) or (e), INA 214(b), or INA 221(g) . When a visa application has been properly completed and executed in accordance with the provisions of the INA and the implementing regulations, the consular officer must either issue or refuse the visa .
If a consular officer knows or has reason to believe that an alien is ineligible to receive a visa on grounds of ineligibility which cannot be overcome by the presentation of additional evidence, the officer will refuse the visa . Where a visa application is refused, the consulate will stamp the alien's passport "Application Received" along with the date of the refusal. An alien with such a stamp in his or her passport will almost certainly have to apply for a visa in the his or her home country. U.S. consulates located in third countries will usually exercise their discretion and refuse to re-adjudicate such cases.
Review of Visa Denials
Consular officers have absolute authority to grant or deny visas. This authority is codified in INA §104(a) which states:
The Secretary of State shall be charged with the administration and enforcement of the provisions of this Act relating to the powers, duties and functions of diplomatic and consular officers of the United States except those powers, duties and functions conferred upon the consular officers relating to the granting and refusal of visas.
Accordingly, there is no formal right of appeal from the denial of a nonimmigrant visa. While a consular officer may only refuse a visa application on legal grounds, his or her findings of fact are generally not subject to review.
The Department of State regulations do provide for an automatic internal review procedure. According to the FAM, a refusal is to be reviewed without delay, that is, on the day of the refusal or as soon as is administratively possible . If the reviewing officer (usually the chief of the section that refused the visa) does not concur in the refusal, that officer may either refer the case to the Department of State for an advisory opinion, or assume personal responsibility for the case .
Such internal review rarely results in a reversal. Nevertheless, it is advisable for the attorney to contact the section chief (or the lawyer liaison officer if applicable) to discuss the case. It is at least possible that the refusal may be reversed with the submission of additional documentation.
If the post is unwilling to reverse its decision, an advisory opinion may also be obtained from the Visa Office of the Department of State at the request of the alien's attorney. However, only advisory opinions concerning questions of law are binding upon consular officers. The Department of State will not overturn the findings of fact made by the consular officer. For this reason, an advisory opinion seldom overturns a visa refusal.