Consular processing for B, F and J nonimmigrant visa applicants
Section 214(b) of the Immigration and Nationality Act (INA) is the basis for a substantial number of denials of nonimmigrant visa applications at the consular level. It reads;“Every alien shall be presumed to be an immigrant until he/she establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to reside in America. It is the burden of each visa applicant to demonstrate that this is not the case – that they only intend to visit America for a short duration. In qualifying for a B (Visitor) F (Student) or J (Exchange Visitor) visa, an applicant must demonstrate compliance with this section of the law. (Note that these requirement do not apply to H or L Visa holders who can maintain ‘dual-intent’).
Consular officers have the last word in deciding who may enter the US. They begin by evaluating each applicant for a non-dual-intent visa (B, F, J among others) to determine whether the applicant has strong ties abroad. Some examples of ties can be a job, a house, a family, and a bank account. These ties bind an applicant to their home country and demonstrate that they will return after the trip to America. Despite the fact that consular officers attempt to provide a case-specific evaluation, they have limited time allotted to each client. It is imperative that the applicant have a well documented and organized petition which demonstrates the strength of the case by providing evidence of strong ties. Unfortunately, as you can imagine, these requirements are somewhat harder to prove for younger applicants, or for those applicants who have a Green Card pending (which manifests a future intent to abandon the home country and reside in the US).
The applicant should also document how they will support themselves financially for the visit and why they are visiting the United States. Temporary trips of a short duration, for a specified period of time – with clearly defined start and end dates (such as a marriage, education, graduation or a religious event) are more likely to be approved. Remember that an invitation letter and evidence of funds of the American ‘sponsor’ are of limited benefit to the applicant – the consular officer is mainly concerned with the qualifications of the applicant themselves.
An applicant who has been refused can attempt to enter the US again since a denial under section 214(b) is not permanent, however, the more times an individual is turned down the harder it becomes to become eligible for subsequent approvals. The consular officer will only reconsider a case if an applicant can show additional evidence of ties outside the United States. The applicant’s situation must have substantially changed since the last application. Demonstration of strong ties is still key.
USCIS REACHES H-2B CAP FOR FIRST HALF OF FISCAL YEAR 2006 – Press Release
Washington, D.C.– U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first six months of Fiscal Year 2006 (FY 2006). USCIS is hereby notifying the public that December 15, 2005 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to April 1, 2006. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY 2006. USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on December 15, 2005. This process will select the number of petitions needed to meet the cap. USCIS will reject all cap-subject petitions not randomly selected. USCIS will also reject petitions for new H-2B workers seeking employment start dates prior to April 1st that arrive after December 15, 2005. USCIS will continue to accept petitions for new H-2B workers seeking employment start dates on or after April 1, 2006 that arrive after the “final receipt date” only if such petitions are supported by a valid temporary labor certification. Petitions for both current and returning H-2B workers do not count towards the congressionally mandated bi-annual H-2B cap. “Returning workers” are exempt from H-2B cap limitations. In order to qualify, the worker must have counted against the H-2B numerical cap between October 1, 2002 and September 30, 2005. Any worker not certified as a “returning worker” is subject to the numerical limitations for the relevant fiscal year. Petitions received after the “final receipt date” which contain a combination of “returning workers” and workers subject to the H-2B cap will not be rejected, and petitioning employers will receive partial approvals for those aliens who qualify as “returning workers” if otherwise approvable. USCIS will continue to process petitions filed to: • Extend the stay of a current H-2B worker in the United States; • Change the terms of employment for current H-2B workers and extend their stay; • Allow current H-2B workers to change or add employers and extend their stay; or • Request eligible H-2B “returning workers.” More information about the H-2B work program is available at http://www.uscis.gov or by calling the National Customer Service Center at 1-800-375-5283.
USCIS ISSUES CITIZENSHIP AND NATURALIZATION FACTS – FACT SHEET
• According to a recent Pew Hispanic Center report, 11.3 million naturalized citizens live in the United States.
• Nearly eight million immigrants living in the United States are eligible for naturalization.
• During FY2004, USCIS welcomed more than 537,000 new citizens.
• Nearly 70% of all new citizens naturalized during FY2004 call California, New York, Florida, Texas, Illinois, or New Jersey home.
• 54% of all new citizens naturalized during FY2004 were women.
• Asia is the leading continent of birth among persons naturalizing. 42% percent of new citizens naturalized during FY2004 were born in Asia.
• Mexico was the leading country of birth among persons who naturalized in FY2004. More than 63,000 Mexicans became U.S. citizens in FY2004.
• Since September 11, 2001, USCIS has naturalized 24,745 military service members.
• There are approximately 40,000 immigrant military service members serving around the world. During FY2005, USCIS naturalized 8,504 military service members. A total of 7,498 service members were naturalized stateside and a total of 1,006 service members were naturalized overseas. USCIS is currently processing an additional 3,472 military naturalization applications for FY2006.
• Since September 11, 2001, USCIS has granted posthumous citizenship to 69 military service members. 65 served in operations in Iraq and Afghanistan, four served during previous conflicts in Vietnam and World War II.
• USCIS’ Office of Citizenship recently introduced a New Immigrant Orientation Guide, Civics Flash Cards and other free tools to help applicants prepare for citizenship. These materials are available at http://uscis.gov/graphics/citizenship
ARRIVING AT A U.S. PORT OF ENTRY … WHAT A STUDENT CAN EXPECT – FACT SHEET
Via ICE – U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) is committed to facilitating your stay in the United States while you take advantage of our nation’s academic, educational, and cultural offerings. To enhance security without slowing legitimate travel, the Department of Homeland Security (DHS) has instituted some changes in U.S. entry and exit procedures. Careful planning and preparation by international students can ensure that any delay based on these procedures is minimal.
PLAN YOUR ARRIVAL
You may be refused entry into the United States if you attempt to arrive more than 30 days before the program start date listed on your SEVIS I-20 form.
ALWAYS HAND-CARRY YOUR DOCUMENTS
Do not check the following documents in your baggage. If your baggage is lost or delayed, you will be unable to present the documents at your port of entry. As a result, you may not be able to enter the United State
- Your passport, valid for at least six months beyond the date of your expected stay;
- SEVIS Form I-20.
In addition, it is strongly recommended that you also hand carry the following documentation:
- Evidence of financial resources;
- Evidence of student status, such as recent tuition receipts and transcripts;
- Paper receipt for the SEVIS fee, Form I-797, and
- Name and contact information for your “Designated School Official”, including a 24-hour emergency contact number at the school.
For comprehensive information on procedures for traveling and arriving in the United States, visit: http://educationusa.state.gov/predeparture/travel/customs.htm
COMPLETE YOUR ENTRY PAPERWORK
If Arriving By Air: Flight attendants will distribute Customs Declaration Forms (CF-6059) and Arrival Departure Record Forms (I-94). These must be completed prior to landing.
If Arriving By Land or Sea: The CBP Officer at the port of entry will provide the necessary Customs Declaration Forms (CF-6059) and Arrival-Departure Record Forms (I-94) to be filled out upon your arrival.
AS YOU ARRIVE AT THE PORT OF ENTRY
Proceed to the terminal area for arriving passengers. Have the following documents available for presentation: your passport; SEVIS Form (I-20); Arrival-Departure Record Form (I-94); and Customs Declaration Form (CF-6059). The Form I-94 should reflect the address where you will reside, not the address of the school or program.
All visitors entering the United States must state their reason for wishing to enter the country. You will also be asked to provide information about your final destination. It is important that you tell the CBP Officer that you will be a student. Be prepared to include the name and address of the school program where you will enroll/participate.
Once your inspection is successfully completed, the inspecting officer will:
- Stamp your SEVIS Form for duration of status (“D/S”) for F visa holders
- Stamp your SEVIS Form for 30 days beyond program end date for M visa holders
- Stamp the Arrival-Departure Record Form (I-94) and staple it in the passport
FOLLOWING ADMISSION INTO THE UNITED STATES
Students should report to their school within 30 days of the date that appears on the SEVIS I-20 form to register for courses or to validate their intended participation. Failure to do so may result in serious consequences.
ADDITIONAL INFORMATION
SECONDARY INSPECTION REQUIREMENTS
If the CBP officer at the port of entry cannot initially verify your information or you do not have all of the required documentation, you may be directed to an interview area known as “secondary inspection.” Secondary inspection allows inspectors to conduct additional research in order to verify information without causing delays for other arriving passengers.
The inspector will first attempt to verify your status by using the Student and Exchange and Visitor Information System (SEVIS). In the event that the CBP Officer needs to verify information with your school or program, we strongly recommend that you have the name and telephone number of the foreign student advisor at your school. In the event you arrive during non-business hours (evening, weekends, holidays), you should also have an emergency or non-business hour phone number available for this official.
Failure to comply with U.S. government entry-exit procedures may result in your being denied entry to the United States. Under certain circumstances, the CBP officer may issue a “Notice to Student or Exchange Visitor” Form (I-515A), which authorizes temporary admission into the United States. Work with your school to submit the proper documentation without delay.
US-VISIT
All nonimmigrant visitors holding visas — regardless of race, national origin, or religion — participate in the US-VISIT program, a comprehensive registration system tracking entries to and exits from the United States. For more information: www.dhs.gov/dhspublic/interapp/editorial/editorial_0440.xml
NATIONAL SECURITY ENTRY-EXIT REGISTRATION SYSTEM (NSEERS)
Some individuals may be asked to provide additional information under the National Security Entry-Exit Registration System (NSEERS). A packet of information will be available at the port of entry explaining the registration procedure. For more information: www.dhs.gov/dhspublic/interapp/editorial/editorial_0440.xml
H-1B & H-4 Consular Processing Document Checklist
The following is a checklist utilized by the Chennai Consulate, however, you should strive to obtain as much of this information as possible even if your appointment is not in Chennai. This is not an exhaustive list, and you may take other documents with you if you have them, but the following are absolute essentials. Remember to answer the Consular Officer’s questions honestly, confidently and succinctly.
For H-1B Visas
1. Original notice of approval (I-797), the H-1B petition along with an attorney-authenticated copy of the petition, the LCA and other supporting documents, DS-156/157 w/2 passport style pictures;
2. The originals of the applicant’s university degree certificate and mark sheets;
3. Letter from petitioning employer confirming employer’s intent to hire the applicant;
4. Originals of the applicant’s work experience letters;
5. Pay slips from current or most recent place of employment;
6. Current telephone numbers of the personnel managers at the applicant’s present and past jobs;
7. Provide written directions, utilizing common names and landmarks to the applicant’s present and past jobs;
8. Photographs of the inside and outside of the applicant’s current or most recent place of work;
9. Names and contact information of two co-workers from past jobs;
10. A complete resume (bio-data) and cover letter describing current job duties in detail;
11. Personal bank records for the last six months;
12. U.S. company information: photographs of the inside and outside of the company’s offices, prospectus, brochures, and annual report;
13. If the applicant is current working in the United States on an H-1B visa, also submit pay slips for the current calendar year and federal tax returns (IRS Form 1040 and W-2) for all years in which the applicant was employed in the United States;
14. A complete set of photocopies of the above listed documents. The application will not be accepted without the originals and photocopies.
For H-4 Visas
1. Birth records of children;
2. Marriage registration certificate;
3. Original I-797 Notice of Approval;
4. Copy of principal’s H-1B petition, LCA and supporting documents;
5. Wedding invitation and wedding photos;
6. All 36 pages of the principal applicant’s passport (if not applying with principal applicant). If a copy of the passport is submitted, it should be a GOOD copy and the photo must be clearly identifiable;
7. A letter from the H-1B company confirming the continued employment of the applicant’s spouse;
8. Copy of the principal applicant’s work experience letters;
9. Copy of the principal applicant’s offer of employment with the U.S. company; and
10. If the principal applicant is currently working in the United States on a H-1B visa, then submit pay slips for the current calendar year and federal tax returns (IRS Form 1040 and W-2s) for all the years in which he or she has been employed in the United States on the H-1B visa.
The U.S. Immigration Law Blog by Ashwin Sharma 