While the majority of international travel occurs without problem, there is always some risk involved when a foreign national departs the United States. Delays in returning to the U.S. are increasingly common, and can be costly, for both foreign nationals and employers.
It is important to make sure immigration paperwork is in good order PRIOR to departing the US. If you intend to travel in the coming months, and have concerns about your trip, please do not hesitate to contact the attorneys at Ryvin Wallace Group for advice.
What documents are necessary to return to the U.S. after an international trip?
Foreign nationals traveling abroad should bring with them documentation that encourages a Consular Officer (CO) or U.S. Customs and Border Protection (CBP) Officer grant the visa, or entry to the U.S., respectively. When planning your trip, double-check that your immigration documents are in order.
Generally, foreign nationals who already hold nonimmigrant visa stamps such as an H-1B or L-1, should carry the following documents prior to departure from the United
1. Valid passport with valid visa stamp inside – take care to confirm not only the visa stamp expiry date, but number of entries permitted;
2. Two (2) most recent pay stubs and employment verification letter, confirming employment, in good standing, as per the terms and conditions of the visa; and
3. Original I-797 approval notice.
Further, foreign nationals should be prepared to answer questions about their proposed entry. A CBP Officer will generally prefer to obtain all the information they need by asking questions, as opposed to reviewing paperwork. So, be prepared to address:
1.) The purpose of your visit, in no more than a short sentence, ie, “to work for Company X”, or “to visit my friend in San Francisco, California”;
2.) Who your application states you are, ie, a Software Architect working for Company Y in City, State;
3.) How you are qualified to perform the proposed work in the US, ie, how your educational background and/or experience qualifies you for your work in the U.S. (be brief);
4.) Your U.S. immigration status (and status of family members), ie, “an H-1B with a pending I-140 petition based on approved labor certification”;
5.) Any prior violations of immigration or criminal law – note these issues may be complex depending on the nature of the violation, so it may serve you well to travel with a letter from an immigration attorney, supported with documents that confirms admissibility despite the violation(s).
What if I do not have a valid visa to return to the U.S. stamped in my passport?
If you do not have a valid visa stamp in your passport, you can apply for a visa at a U.S. embassy or consulate abroad. It is generally NOT possible to apply for a visa while physically inside of the U.S. Most U.S. consulates require personal interviews before the visa will be processed.
You should be sure to contact the U.S. consulate well in advance of travel to schedule an appointment and check on processing times and procedures. Please note that different U.S. consulates sometimes have particular procedures specific to their location, and that processing times for issuing the actual visa can vary from a few days to several weeks.
In order to apply for a visa, you may need the following documents:
1. Form I-797 (original approval notice);
2. A certified copy of your underlying nonimmigrant (usually H-1B or L-1) visa petition;
3. A passport valid for 6 months beyond the expiration of the validity date you are requesting;
4. Passport size color photograph;
5. Completed nonimmigrant visa application;
6. Copies of your diplomas (usually included in the underlying petition);
7. Employment verification letter;
8. Copies of recent pay stubs; and
9. Copies of all U.S. tax returns filed in connection with any U.S. employment.
Contacting the U.S. embassy or consulate at which you plan to apply for a visa to schedule an appointment for a personal interview and obtaining information on the consulate’s particular processing times and procedures, is critical. Please note the following links which should help find the appropriate Consulate web page, as well as visa wait times:
Foreign nationals who do not currently hold valid visa stamps in their passports and require assistance in applying for a visa should contact an immigration attorney.
For any international travel, especially including visa stamping – planning ahead will be crucial to avoiding delays or other problems. Planning ahead includes:
1. Checking with your immigration support network including immigration attorney to confirm the level risk associated with traveling;
2. Confirming the level of risk with your Manager, and establishing a Plan B in the event of lengthy delays, such as working remotely while visa matters are sorted out;
3. Checking the procedures, standard wait times, and requirements at the U.S. embassy or consulate where you will be applying.
May I apply for a visa to enter the U.S. at any U.S. embassy or consulate?
The State Department recommends that visa applicants apply for their visas at a U.S. embassy or consulate located in the visa applicant’s home country. However, it is possible to apply for a visa in a country that is not your home country or country of citizenship. U.S. embassies and consulates have the discretion to accept visa applications from so called “third country nationals” – individuals who are not citizens or residents of the country in which the U.S. consulate is located.
If you wish to apply for a visa as a third country national, you should contact the U.S. embassy or consulate that you plan to visit to confirm their policy on third country applications. You should also confirm this plan with your immigration attorney and employer, as third country national applications are more likely to result in delays.
Please note that if the U.S. embassy or consulate refuses to process the visa application or denies the application, you must travel to your home country and apply for a visa at a U.S. embassy or consulate there.
Preparing the Visa Application Forms
The nonimmigrant visa application most commonly used today, Form DS-160, must be completed by everyone applying for a U.S. visa. This form is completed online and is relatively new, replacing the DS-156 and DS-157 at most consulates and embassies.
AILA (American Immigration Lawyers Association) recently provided comments to the U.S. Department of State focused on common problems with the DS-160 and suggestions for making it better. We encourage you to read these comments and be prepared to spend about 2 to 3 hours completing the form.
Particular attention should be paid to providing complete and accurate responses to all the questions on the visa forms, particularly those related to prior immigration violations. If questions arise, you may contact the attorneys at Ryvin Wallace Group.
A visa applicant’s spouse and children (under 21) are eligible for dependent visas, such as H-4 and L-2. Each individual applying for a visa will need to complete separate visa forms as described above.
Requests for Additional Information
U.S. consulates and embassies also have the discretion to request additional supporting documentation in addition to the above information. Common requests for other documents include individual or corporate tax returns, original educational documents, and letters confirming prior employment. The propensity for extensive documentation requirements can vary between Consulates, and we encourage your efforts to determine the local requirements.
For third country national visa applicants applying under categories which require temporary intent (such as a B-1/2 or E-1/2/3) – note the embassy or consulate might have difficulty identifying sufficient ties to the home country, so we encourage this type of visa applicant to bring sufficient evidence of ties, ready to provided upon request.
Possible Causes of Delay
Although relatively uncommon, substantial delays in visa processing due to security clearances, name checks, or fingerprint checks performed in the interest of the U.S. national security, do occur. Such delays can add anywhere from a few weeks to six months or more to the visa issuance process.
Parties planning to travel abroad to secure a visa must be willing to accept this risk. As delays in visa issuance may have a negative impact on a foreign national’s job, you might want to discuss the risks of traveling with your employer, in an effort to prepare for prolonged delay in visa issuance, before deciding to leave the U.S.
Please note the following security related checks that are initiated by US Consular Officers in connection with nonimmigrant visa interview:
“Visas Condor” – The criteria for Condor security check are classified, but “hits” appear to be triggered by a.) information disclosed in the visa application form (DS-160/DS-157) including travel to predominately Muslim countries in the last ten years, prior employment, military service for certain nations, specialized skills or training; and b.) Country of birth, citizenship or residence, and persons born in countries the Department of State designates as State Sponsors of Terrorism (T-4) including Iran, Cuba, Syria and Sudan, or male applicants from a classified “List of 26” predominantly Muslim countries. Most Condor Security Advisory Opinions (SAOs) take 1-2 weeks to process.
“Visas Donkey” – Triggered by a name hit based on non-criminal issues and is not nationality specific. Donkey hits most often occur to those applicants with common names. This type of check could take months for the U.S. Department of State to complete its review and issue a Security Advisory Opinion (SAO). Clearance time is anywhere up to 9 months, sometimes longer, for the process to come full circle and Security Advisory Opinion to be issued.
“Visas Mantis” – Know as the “sensitive technology clearance”, based on whether the applicant is working in an area included in the “critical fields list” of the Department of States’ Technology Alert List (TAL). Commonly, research scientists, physicians, academics and engineers working in areas that raise technology transfer concerns, including those subject to export controls, may be subject to additional visa application delays or denials at U.S. embassies/consulates. If a Consular or DOS officer believes that a visa applicant is working in a critical TAL field, the officer must request an advisory opinion from the Visa Office, a process which may take several months to complete. According to prior DOS guidance, a Mantis clearance is generally not warranted if the technology falls within the public domain, ie, widely available to the public. Mantis clearances are now valid for 2 years for H, L, or O visas, 4 years for F/J visas and 1 year for B visas.
NCIC Criminal Hits – The FBI’s National Crime Information Center (NCIC) records feed into the Consular Lookout and Support System (CLASS) name check database. Combined these databases reportedly hold 18 million records. The records contain information about terrorists and foreign warrants and extensive records about the occurrence of criminal convictions or arrests including relatively minor offenses. Applicant’s may present certified final court dispositions, arrest records, and legal briefs at the time of the interview, but the Post cannot issue the visa until it has received results from a fingerprint check run by the FBI.
Course of Actions Against Delays
Unfortunately, if a visa application becomes “stuck” there is very little which can be done to move the process forward; and generally, both the foreign national and employer are left with having to let the process run its course. Of course, cases are evaluated on a case by case basis to determine if any action can be taken to assist with issuance of the visa.
The Department of State may expedite security clearances only of there is a significant U.S. government interest or a humanitarian concern. The expedite request must be approved by the Chief of Deputy Chief of the Coordination Division in the Visa Office (VO). If a security check has been pending for over 60 days, you may call the Visa Office (VO) Public Inquires line at 1(202)663-1255.
Is there anything I need to do after I return from an international trip?
Upon your return to the United States, you will receive an I-94 card. The I-94 card is marked by a U.S. Customs and Border Protection (CBP) officer and will indicate your current nonimmigrant status and expiration date to note how long you may stay in the U.S. in valid status.
When the officer marks your card, please check the I-94 card to ensure that all information is correct. If the officer has made a mistake in noting your immigration status or lists an expiration date that does not match the end validity date on your approval notice, please ask the officer to correct the card at that time – BEFORE you step away from the counter. If the officer refuses to make the correction, please enter the United States and contact an immigration attorney to discuss correcting the error on the I-94 card, possibly at a CBP deferred inspection site.
We recommend that you keep a record of all of your entry and exit dates in and out of the United States. After returning from an international trip, you should send to your immigration attorney a copy of the I-94 card so they may database and monitor your immigration status, to follow-up with you in a timely manner about extending, etc.
May I Apply for a New Visa Inside the United States?
In the past, it has been possible to obtain a visa to travel to the U.S. by either applying at a U.S. Embassy or Consulate abroad or if the foreign national was present in the U.S., by applying for Visa Revalidation through the U.S. State Department. The visa revalidation program allowed certain foreign nationals to renew their visas by mail rather than by applying through a U.S. Consulate abroad.
Unfortunately, due to new biometric identifier requirements that went into effect in October 2004, the State Department has announced that they will no longer revalidate visas due to inability to gather biometric data on applicants. The closure of the visa revalidation program means that foreign nationals who were formerly eligible for visa revalidation will now need to apply for new visas abroad.
We are aware of certain consulates which have resumed a similar procedure, often including a third party (i.e. a local bank); however, it is not common, and so we strongly urge any foreign national considering obtaining a visa stamp in this way to check with their immigration attorney.
Do Canadian Citizens and Landed Immigrants Need to Apply for a Visa to Enter the United States?
Citizens of Canada do not require a visa, unless they are traveling to the United States as foreign government officials or officials and employees of international organizations; NATO officials, representatives and employees if they are being assigned to the U.S. (as opposed to an official trip); treaty traders; treaty investors; fiancés and children of fiancés; U.S. citizen’s foreign citizen spouse, who is traveling to the U.S. to complete the process of immigration; children of a foreign citizen spouse described above; spouses of lawful permanent residents traveling to the U.S. to reside in the U.S. while they wait for the final completion of their immigration process; and children of spouses of lawful permanent residents described above.
Formerly, landed immigrants or permanent residents of Canada, like Canadian citizens, were not required to obtain visas in order to enter the U.S. However, as of March 17, 2003, all Canadian landed immigrants must present a valid visa and passport to enter the U.S. unless the landed immigrant is a national of a country that participates in the visa waiver program (VWP), meets the VWP requirements, and is seeking to enter the U.S. for 90 days or less under that program.
Ryvin Wallace Group is committed to helping you navigate the sometimes murky waters of international travel. Planning ahead will be critical so you can work towards minimizing risks, and be prepared to deal with issues before they arise.