The purpose of this post is to help an employee, with an approved Form I-129 Petition for Nonimmigrant Worker, apply for a nonimmigrant (temporary) visa, also known as a “foil,” pictured above. This process requires the employee, and accompanying family members, to prepare and submit Form DS-160 nonimmigrant visa application(s) and in most cases, appear in-person at a U.S. Embassy or Consulate, outside of the United States.
To assist with the process of securing a post I-129 petition approval visa/foil, below please find:
1) GENERAL INFORMATION
2) FEE INFORMATION
3) SECURITY CLEARANCE WARNINGS
4) THIRD-COUNTRY PROCESSING INFORMATION
5) INSTRUCTIONS FOR DRAFTING/SUBMITTING THE DS-160
6) INSTRUCTIONS FOR SCHEDULING THE INTERVIEW
7) DOCUMENTS TO CARRY
1) GENERAL INFORMATION
U.S. Embassies and Consulates around the world fall under the authority of the U.S. Department of State. This is a different U.S. federal agency from the one which reviews and approves an I-129 Petition for Nonimmigrant Worker (the U.S. Citizenship and Immigration Service, aka USCIS, run by the U.S. Department of Homeland Security).
It follows that the U.S. Embassy or Consulate is NOT obligated to grant the visa/foil based on the I-129 approval. It is a matter of discretion. However, in the large majority of applications, the visa/foil is granted. Denials tend to be fraud-related, or in some cases, the U.S. Consular Officer determines that USCIS missed a mistake, in which case they do have the power to not grant the visa/foil, and send the petition to USCIS with a recommendation to review and/or revoke the approval.
It can also help to understand that while all U.S. Embassies and Consulates around the world fall under the authority of the U.S. Department of State, different “Posts” tend to have different procedures, processing times, and even requirements, for visa issuance.
You can investigate the process for the Post where you intend to apply in advance of the application, online. Links to all U.S. Consular Posts worldwide are found here: http://usembassy.gov/. We also encourage you to review questions and strategy as needed with immigration counsel.
In most cases, following the in-person visa interview (note that children under 14 usually do not have to appear in-person) the U.S. Embassy will return an applicant’s passport, with the new visa, within several days of the interview. But just like they are not required to approve the application, they are also under no obligation to return the passport in any certain time.
Further, and this is explained below in greater detail, visa processing may be delayed for a number of reasons, including administrative processing, aka 221(g). So it makes sense to create a plan with your current employer to work remotely, if possible, in the event of a lengthy delay.
2) FEE INFORMATION
Nonimmigrant visa processing abroad involves a number of fees, generally paid by the visa applicant, directly to the U.S. government agency, or authorized representatives, such as local post offices, or banks. Each nonimmigrant visa applicant (for example, principal H-1B, and dependent H-4 family members) will be required to pay a nonimmigrant visa application fee, which is also called a Machine Readable Visa, or “MRV” fee. You can look up the fee by visa category here: https://travel.state.gov/content/visas/en/fees/fees-visa-services.html
Note that citizens of certain countries are required to pay an additional “visa issuance” and “reciprocity” fees. This can be confirmed here: https://travel.state.gov/content/visas/en/fees/reciprocity-by-country.html
Legal fees, payable to immigration counsel, may or may not be included, as determined on a case-by-case basis. Please contact immigration counsel and/or your employer to confirm, as needed.
3) SECURITY CLEARANCE WARNINGS
Individuals applying for nonimmigrant visas overseas should be prepared for the possibility of substantial delays in visa issuance. All foreign nationals applying for nonimmigrant visas to enter the United States are required to comply with additional security screening measures imposed by the U.S. Department of State (“DOS”) that might delay visa issuance from a few days to a few weeks, or in some cases, months.
In addition, male nationals between the ages of 16 and 45 from at least 25 countries can anticipate significant delays in normal visa issuance times. Delays may range from 20 days to several months, or more, due to the special processing requirement for this group of applicants. The list of nationalities subject to the special processing requirement is classified, however, we understand the list includes nationals of Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Yemen and the United Arab Emirates.
Individual U.S. Consular Posts also have the discretion to require special processing clearances for females, older or younger males, dual nationals, and for any other nationality in their own discretion. If a clearance is ordered, there is generally no way of checking the status of the clearance with the U.S. Consulate or any other U.S. government agency, and the applicant will need to remain overseas pending final adjudication of the nonimmigrant visa application.
4) THIRD-COUNTRY NATIONAL VISA PROCESSING
You may apply for a visa in a “third country,” other than your “home” country, in certain circumstances. For example, an Australian national might submit an application at the U.S. Embassy in Vancouver, Canada. This is not unusual, but still only advisable in certain cases. If you would like to explore the option of “third-country processing,” please contact immigration counsel to review further.
5) DRAFTING/SUBMITTING THE DS-160 VISA APPLICATION FORM ONLINE
Every application for a nonimmigrant (temporary) visa requires a DS-160 nonimmigrant visa application to be submitted to the U.S. Department of State. (Principals and each Dependent need their own DS-160.) Here are the steps to draft the DS-160 and have immigration counsel review BEFORE submission to the U.S. Department of State:
- Please start drafting your DS-160 application, here: https://ceac.state.gov/genniv/
- Please do not submit without giving immigration counsel a chance to review it
- Once you have drafted it, please send immigration counsel your 1) application ID number; 2) your year of birth; and 3) the answer to the security question
- Once you have feedback from immigration counsel, and are satisfied with your answers, submit the Form DS-160
- Once you have submitted the DS-160 online, a PDF format, DS-160 Confirmation Page with a barcode will be generated – please save, print, and email the PDF to immigration counsel.
6) SCHEDULING A VISA INTERVIEW APPOINTMENT
Once the DS-160 is submitted, the next step is to schedule the visa interview. The website for the specific Consular Post where you intend to make your application should have instructions for scheduling a visa interview appointment. You can also visit http://www.ustraveldocs.com/
This is also the stage where you are likely to be required to pay the applicable visa application fees. Make sure to save proof of payment.
Once the visa interview is scheduled, you should be able to print a visa interview confirmation, which may be sent to you via email. You will be asked to provide the visa interview confirmation page by Security at the Consular Post on the day of your interview.
Please share the email/visa interview date information with immigration counsel.
7) DOCUMENTS TO CARRY TO THE U.S. EMBASSY OR CONSULATE THE DAY OF THE INTERVIEW
The following is a general list, which may or not include everything required for visa issuance. Please contact immigration counsel with questions, as needed.
- Your passport. Your passport must have a remaining validity of at least 6 months and be machine-readable with a digital photo to re-enter the US.
- Proof of payment of visa application fees and applicable visa reciprocity and issuance fees. The website for the Consulate/Embassy where you intend to make your application should confirm the specific proof required.
- You will be asked to upload a photo with the DS-160. It must be taken as a two-inch by two-inch (5cm x 5cm) face-front, passport-style photograph. Be very careful that you follow the instructions on getting the photograph’s computer file saved correctly or it will not upload. More detailed specifications can be found here: https://travel.state.gov/content/visas/en/general/photos.html
- DS-160 Confirmation Page. You are not required to bring a printout of every page of the DS-160. Just the confirmation page with the bar code and the picture of you.
- Form I-797 Approval Notice. S. Embassies and Consulates will verify your USCIS Form I-129 approval internally, via a system known as “PIMS.” Most Posts are no longer require originals, but it may still be helpful to have the notice from USCIS.
- Copy of underlying I-129 Petition (Forms and Supporting Documents). This is usually something to bring with you to the interview, to provide if necessary. The underlying Petition should have documents demonstrating your immigration history, qualifications for the position offered, and company documents. Sensitive company information may be redacted – which should not be a problem. Please make sure to READ through the materials, in particular the company support letter, which describes your job duties and qualifications- things you might need to discuss at the interview.
- Latest pay slip. If you are presently employed by the petitioning company in a work authorized status.
- For dependent accompanying family members. Form I-797 Approval Notices (if applicable) and proof of the relationship, ie, marriage certificates, children’s birth certificates.