May 30, 2013

With the busy summer travel approaching, some travellers on U.S. work visas have a fear of visiting their home country if the travel involves a visa application at the US consulate abroad. In fact some people postpone their travel until they receive their green cards just to avoid a visit to the U.S. Consulate. It is not uncommon that everybody has a friend who experiences difficulties in obtaining visas overseas.

It is important to note that different visa types require different criteria to be met before a visa can be issued. Student (F and M visas) and tourist visa (B visa) applicants as well as many trainee and work visa applicants are expected to prove that they have a foreign residence they do not intend to abondon after time spent in the US. To overcome the immigrant presumption, applicants can provide documentation demonstrating their assets, cash, deeds, and so on.

The standard is a little different for E-1 treaty trader and E-2 treaty investor visas. It is expected for the E-1 and E-2 applicants to state their intent to depart the U.S. and not permanently remain. It is generally sufficient for an E visa applicant to indicate that s/he will leave the U.S. upon completition of E visa activitites. It is important to note that, the E-1 and E-2 visa holders whom obtained their E-2 status within the U.S. (as opposed to obtainign the E visa at the U.S. Consulate abroad) are required to apply to the US consulate for a visa in their first trip out of the U.S. since they cannot return to U.S. without a valid visa in their passport.

Some visa applicants (H-1B professional worker, L-1 Intrecompany Transferee, O and P visa holders) are not required to show any ties with their home country. According to the regulations, the Consulate Officer cannot deny a visa just because the H-1B or the L-1 applicant has a long term plan to stay in the US. These visas are therefore called “dual intent visas”. Therefore H-1B or L-1 visa holders should not fear even if they do not have established ties with their home countries.

Neverhteless, even H-1B and L-1 visa holders may experience difficulties during the visa interview at the US consulate abroad. For example, an F-1 student or a B-2 tourist who came to the US and filed for a change of status to another category may face security about their intention to travel to the US in the first place. Therefore timing is really important for these kind of applications.

Some delays in visa processing may also be caused bt security checks at eh U.S. Consualtes. Sometimes, security clearance maybe triggered by a simple name hit. It is important to note that security clearance can not be expedited.

We would like to remind our readers about the Canada option.  The applicants who cannot go to their home country due to busy work schedules or time constraints may consider for applying for a visa at US consulates in Canada. It would be prudent to visit the consulate websites to as certain which consulates accept H-1B applicants form 3rd countries. Keep in mind that if the visa application is denied by a US consulate in Canada, the applicant needs to go back to his/her home country to apply for the visa from the US consulate in home country.

Finally, U.S. work visa holders need to make sure that their passports are valid at least until the validity of their underlying approval notice while entering the U.S. to get the full period of approval validity on their I-94. If the passport’s expiration date is earlier than the approval validity, the CBP officer will limit entry to the passport validity date and would issue an Form I-94 with an expiration date identical to the passport expiration date as opposed to the approval expiration date.

Remzi Guvenc Kulen, Esq.