NONIMMIGRANT VISA APPLICATION –EMPLOYMENT-BASED TEMPORARY WORKER VISAS at an U.S. Consulate abroad. (Temporary workers in H-1B, L-1, H-2, H-3, O, P and Q status)
By STEPHEN R. KAIN, ESQ.
The general procedure to secure a temporary worker visa is for an Employer/Sponsor in the USA to file the appropriate TEMPORARY WORKER NONIMMIGRANT PETITION with the Immigration Service in the USA. Once this PETITION is approved, it is generally forwarded to the U.S. Consulate indicated on the PETITION. The employer is known as the PETITIONER and the foreign temporary worker is known as the BENEFICIARY.
Once the PETITION is approved and forwarded to the U.S. Consulate, the beneficiary of such approved petition will generally apply for the issuance of the appropriate VISA which will be imprinted in his/her passport. When the PETITION is approved, INS generally issues a Form I-797 NOTICE OF APPROVAL. While it is possible in some cases for some foreign temporary workers present in the USA to apply for a “change of status” from one nonimmigrant status (such a tourist) to that of the requested temporary worker status (such as H-1B or L-1) and thus avoid appearing at the consulate for an indefinite period of time, this articles is not concerned with that procedure but, instead, the mechanics of applying for a VISA outside the USA.
It should be noted that the fact that INS has approved a temporary worker PETITION, it does not guarantee that the beneficiary will be issued a VISA. The adjudication of a PETITION does not involve issues that will later be considered when the beneficiary applies for the issuance a VISA. For example, the adjudication of an H-1B (professional) PETITION requires INS to ascertain that the job offered is “professional” (requires some specialized university degree) and that the beneficiary is the holder of such a degree. At the time of the application of the VISA, the beneficiary must establish his/her good moral character and other eligibility requirements that are personal in nature and have little to do with his/her professional qualifications.
The application for the issuance of a VISA is generally made at the U.S. consulate in the beneficiary’s home country and, in limited circumstances, at a U.S. consulate in a third country. In this article, we discuss obtaining the visa stamp at the beneficiary’s home consulate. Please note that a CANADIAN national generally does not require a VISA to enter the USA in temporary worker status and he/she is able to enter the USA in temporary worker status by merely presenting the I-797 approval notice to CUSTOMS/INS.
Typically the steps to secure a visa include: –paying a visa processing fee of $100.00 (as of November 1, 2002) either directly to the consulate or in some other cases to Consulate-designated local bank with an account for the U.S. Embassy, –completing a Nonimmigrant Visa application Form DS-156 and determining whether the applicant will need to complete any other supplemental Forms such as DS-157 or DS-158 to accompany the basic application, –and submitting the DS-157 application and passport to the consulate by one of three possible methods.
These forms can be downloaded from the following site: http://travel.state.gov/visaforms/
The visa applicant will submit his/her application and passport to the Consulate by one three possible methods: –mail, –drop-box (usually a designated box outside of the Consulate) or — in person.
The basic application should contain: –the appropriate Form or Forms with a photo, –receipt for proof of payment of the visa processing fee, –the ORIGINAL Immigration approval notice, form I-797, –passport.
The first step in this process, before paying for the application fee, is to visit the website for the U.S. Consulate in the home country. A list of consular websites can be found by visiting to http://usembassy.state.gov/, and selecting the appropriate country and consulate. Once in the Consulate website, the visa applicant should look for links to Visa Services or Nonimmigrant Visa Services. Some websites have more information than others. At the very least the site will provide a telephone number to call for information on how to apply for your visa. Comparing the U.S. Embassy in Paris website to the one in Jamaica will show you the significant difference in available information to assist you in the process.
Once it is determined whether the visa fee must be paid in advance or at the Consulate, then one must determine whether the application can be submitted by mail or drop-box or if an interview is required.
Mail or drop box submission.
If the selected Consulate requires or permits applications by mail, then the visa applicant must forward to the consulate:
– his/her passport (and passports for family members, if any, with documents establishing the relationship to the principal visa applicant.)
– the Form I-797 approval notice,
– receipt for payment of the processing fee,
– Form DS-156 (and supplements) with photo and
– a prepaid, return overnight delivery envelope for the return of the passport and papers.
If the Consulate allows dropping off the application, the same documentation should be submitted, even the return envelope.
When applying for visas for family members as well, a separate package should be prepared for each person and placed together into ONE envelope so that it is clear that it is a multiple family member’s visa application. Most Consulates return passports within a week to 10 days. This information will also be available from the website or a telephone call to the Consulate.
In person interview.
If the Consulate requires a personal interview, hopefully it will have established an appointment system. It is very important to determine whether an appointment is required or walk-ins are allowed. If an appointment is required, the visa applicant should not make any travel arrangements until he/she finds out how long the wait is to be scheduled to meet with a Consular officer. In some countries, it can take several weeks to obtain an appointment for a visa interview, in others only a few days.
When preparing for a personal appearance at the Consulate, the visa applicant should ascertain the he/she is bringing proof of payment of the filing fee (unless fees are payable at the Consulate). A visa applicant should find out if additional reciprocity fees must be paid for the visa issuance. Consulate will require this additional visa fee form nationals of only a few countries, but in some cases it can be a significant additional expense per person. Generally, the basic fee for any visa for nationals of all countries is $100.00 but nationals of some countries must pay an ADDITIONAL visa issuance fee know as “reciprocity fees” which equals the amount of money that those countries charge U.S. citizens for comparable visas.
On the day of the interview the visa applicant should review all papers one more time. The visa applicant should have the following:
–a valid passport for each family member;
–completed DS-156 forms for each family member with photograph attached,
–completed DS-157 forms for any males in the family between the ages of 16 and 45 (check if the Consulate requires women to complete this form as well);
– evidence of the family members’ relationship to the visa application (marriage certificate for spouse and birth certificates for children);
–the INS-issued PETITION approval notice, Form I-797;
–a photocopy of the actual PETITION submitted to INS by the Employer/Sponsor with all supporting documents; this may or not be requested by the Consulate;
–three recent payroll statements (if the visa applicant applied for change of status in the USA and began to work for the Employer/Sponsor prior to the trip to the Consulate);
–any additional information required by the Consulate as required on the website or explained on the telephone.
Many Consulates state that it is not necessary for the visa applicant to bring his/her young children. Usually, it is required that spouses appear. Please check on the Consulate’s policy in this regard.
In the course of the interview, the Consular officer may inquire what kind of services the visa applicant will be performing for the sponsor, what level of compensation he/she will receive and how the visa applicant learned about the position.
Visa Issuance
If the passport was mailed to the Consulate, it will be returned in the envelope provided. In most cases the passport is received within 7 to 10 days. If dropped off at the Consulate, the Consulate will advise whether the passport will be sent by mail or courier to the applicant (required in London, UK) or whether the applicant may be able to return to the consulate to personally collect the passport (Paris, France). Once the passport is in the applicant’s possession, the visa stamp should be carefully reviewed for errors in the spelling of the name, birth date, name of the sponsoring company, and validity dates of the visa. If corrections must be made, the visa applicant should immediately contact the Consulate and determine what procedure to follow to have the corrections made. It is always more difficult to make corrections after the visa applicant has left the country and is standing in line at the U.S. port of entry waiting to be inspected by a Customs/INS official.
Arrival in the US.
Once a the temporary worker arrives at the U.S., Customs/INS will most often request to inspect the I-797 petition approval notice as well as the visa in the passport. The Inspector will most likely ask the name of employer the temporary worker will be working for and what kind of work he/she will be engaged in. A temporary worker should be prepared for these questions even if it is in the middle of the night. INS/Customs officials are supposed to ask these questions and make sure everything is correct. The Inspector will then stamp the I-94 card (arrival/departure record) with the date of entry, the visa category used to enter, and the expiration date of the authorized stay. The expiration date on Form I-94 should match the expiration date on your Form I-797 even if the visa expires sooner than your approval notice. Once finished with Immigration the temporary worker has completed the process of securing a work-authorized status in the USA.