Personal Interviews at Consulates as of Aug 1, 2003
Posted Aug 08, 2003
We take this opportunity to remind MurthyDotCom and MurthyBulletin readers that, as of August 1, 2003, most individuals seeking nonimmigrant visas at a consulate will have an in-person interview. Readers were advised of this change in our May 30, 2003 article, Nonimmigrant Visa Interviews Required for Most Applicants, available on MurthyDotCom. In short, interviews will be required for all nonimmigrant (temporary) visa applicants, subject to very limited exceptions. There are four exceptions to the interview requirement. The one most relevant to our readers is for persons seeking re-issuance of a visa within twelve months of having obtained a visa in the same category. The other potentially relevant exception, which may apply to many of our readers' family members, is for applicants 16 years and younger or 60 and older.
It is important to note that even cases that fit within the exceptions could be interviewed. The exceptions are merely circumstances under which the consulate potentially could waive the interview. The consulate is always allowed to require an interview for any person at any time. They will be likely to do so if there are additional security or fraud concerns at the particular consulate.
What this means for our readers is that they must plan ahead. Significant delays are expected. In some instances, travel abroad may no longer be practical. It will be necessary to check the website of the particular consulate to determine the procedure for setting an interview. The consulate in Chennai, India has an online appointment system, while other consulates do not have this feature available at this time.
In addressing these changes, our readers should ask the following questions:
Do I really need a new visa?
A visa is a document required for entry to the U.S. from abroad. If there is no foreign travel, a visa is not needed. An individual's status is determined by the I-94 card given at the time of entry to the U.S. at the airport or other port of entry. Of course, the individual is required to comply with the terms of his or her stay in order to be considered in status. The visa does not confer status and is not necessary to maintain status. Therefore, if no travel is anticipated, a current visa in the correct category is not legally necessary. The person only needs an I-94 card, generally attached to an approved petition, to stay and/or work legally in the U.S., depending upon the classification approved by the BCIS.
Individuals in H1B status often ask whether they need to obtain a new visa when they change companies. The general answer is, "No." Such individuals need to file for and obtain a new H1B petition and a new I-94 card authorizing employment with each employer. They do not necessarily need a new visa stamp in the passport. If they receive a new petition approval with an I-94 attached, they are not required to get a new visa to maintain status while in the U.S. Additionally, if the individual previously obtained an H-1 visa, that visa will list the name of the initial sponsor. However, that visa is not limited to use while only working for the initial sponsor. It can be used as long as the individual is seeking entry to the U.S. in the same visa category and is eligible for admission in that category. The same is true for H-4 derivative family members.
Can I Use Visa Revalidation?
Some people are eligible for revalidation of their visas through the U.S. Department of State (DOS). It generally is advisable to revalidate, if eligible. This avoids the need to apply at the consulate. Revalidation is a time-sensitive and lengthy process. Therefore, delaying revalidation can eliminate it as an option. Thinking ahead can be invaluable should the need for unanticipated or emergency travel arise. Given the current 10- to 12-week processing times for revalidation cases, the procedure will not be possible if there is an urgent need to travel.
Information on revalidation is available on MurthyDotCom in our article H1B: Reissue-Revalidate from the U.S. Applicants should check the U.S. State Department WebSite, Bureau of Consular Affairs section for updated instructions on visa revalidation or reissuance. Essentially, revalidation is available for individuals who were previously issued the H, L, E, I, O, and P visas and who are seeking visa reissuance (extensions) in the same category. The filing can be made two months prior to visa expiration or up to a year after visa expiration.
Can I Get Advance Parole?
Individuals with Adjustment of Status (I-485) cases pending may be eligible for advance parole. Advance parole is prior permission to return to the U.S. to continue pursuing the I-485. Individuals with advance parole do not need visas to reenter. They reenter as parolees, rather than on their nonimmigrant statuses. This allows eligible individuals to travel without having to make visa applications at consulates abroad. Many persons with H or L status have green card cases pending. Since the I-140 and I-485 can now be filed concurrently, the advance parole option occurs at a significantly earlier part of the case. Thus, this may be a viable option for some.
Do I Have to Go Home?
If a visa is necessary, the next question is where to apply. It is not always necessary to apply in the home country. For many, processing through Canada or Mexico remains a practical alternative. This option is not available to persons who have overstayed their U.S. visas, even by a single day. Persons with other immigration violations may find that they cannot obtain the appropriate documentation to enter Canada or Mexico. Individuals from the seven countries listed as "state sponsors of terrorism" (Iran, Iraq, Syria, Libya, Cuba, North Korea, and Sudan) cannot process their visas through Canada or Mexico. A key consideration is that, if the visa is not issued, it will no longer be possible to return to the U.S. on the valid I-94 alone. In that event, it would be necessary to depart Canada or Mexico without delay and return to one's home country to make a visa application. Obviously, this can be disruptive and expensive. For more on this topic, see our March 15, 2002 article, Overhaul of the Contiguous Territory Rule: Eliminated for Many, available on MurthyDotCom.
Personal Interviews Cause Delays
It is impossible to predict the impact of the interview requirement at this early stage. Given the many security-related delays already slowing the process, these are likely to increase. We at The Law Office of Sheela Murthy frequently encounter situations in which one has lost his/her job because the visa issuance process is simply taking too long. Since the job forms the basis of the ability to obtain the visa, the result leaves the would-be employee stranded abroad. This can be devastating for an individual. The same delays wreak havoc for students, who are not able to enter the U.S. in time for the start of the academic term. At the very least, this sets their scholastic careers back for a school term or longer. We respect the need to secure U.S. borders. We also welcome the opportunity for individuals to meet with the consular officer to clarify their cases. There is a need, however, for adequate funding and an increase in personnel to allow for timely visa processing. This will enable U.S. businesses and academic institutions to continue to obtain needed workers, to attract tourists, and admit desirable students, all vital to the continued recovery of our economy.© The Law Office of Sheela Murthy, P.C.
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