Travel Tips and Recent Developments for Foreign Nationals During the Holiday Travel Season
If you plan to travel outside the United States during the holidays in December, you should ensure that you have all documents necessary to re-enter the U.S. after your trip abroad. The key items to check are:
- Do you have a passport valid for at least six months beyond the date of intended U.S. re-entry? If not, you must apply for either a renewal of your current passport or a new passport. If you obtain a new passport and your current passport contains your valid U.S. visa, you will present to U.S. immigration both your new passport and your “old” passport containing the unexpired visa. Otherwise, U.S. immigration may shorten your authorized stay or refuse to allow you to enter altogether.
- Do you have a valid visa in your passport? If not, you will need to schedule an advance appointment with a U.S. Consulate abroad to apply for a new visa. You can find information about applying for a new visa at our website – please click here. Our team also can assist you with planning and implementing this;
- Has your job title or any other important component of your U.S. employment -- such as work location -- changed since you were approved for your current work visa status? If so, it is possible that either an amended petition might need to be filed or that a letter explaining why an amended petition is not necessary might need to be prepared before you leave the U.S.;
- Do you have additional documents with you to present to U.S. immigration, if needed? Even if you have a valid passport and visa, you also should be able to show the U.S. immigration officer your latest earnings statement if you are asked for proof that you still work for the authorized employer. If you need to apply for a U.S. visa while you are abroad, you will need a number of documents, which can vary from U.S. consulate to U.S. consulate.
If you do need to apply for a new visa during your trip, in addition to scheduling an appointment now if you have not already done so, you should connect with our team about where you can apply. There have been some rule changes about where an applicant can apply for a new U.S. visa. Some applicants choose to apply at a U.S. consulate in Canada or Mexico rather than at the U.S. consulate in their home country. The U.S. consulates in Mexico have implemented new policies that limit who can apply for visas at U.S. visa posts in Mexico.
When you leave the U.S., you should surrender to U.S. Department of Homeland Security (DHS) or the airline your white I-94 card and any machine-produced, tear-off I-94 cards . When you return to the U.S. you should present to U.S. immigration your passport plus the new white I-94 card given to you in-flight. If you have a Form I-797 Approval Notice that expires on a date than the visa in your passport (for example, your visa expires on July 1, 2009 but the I-797 Approval Notice expires on January 1, 2010), you should affirmatively present to U.S. immigration your I-797 Approval Notice to ensure your I-94 Departure Record card bears an expiration date of January 1, 2010. Taking this step will help avoid your being improperly admitted.
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Changes for Third Country National Visa Applicants at U.S. Consulates in Mexico
The United States has revised the rules under which third country nationals (TCNs) who wish to renew their U.S. visas are able to do so at a U.S. consulate in Mexico. TCN applicants seeking to renew a visa in any category, except the B-1 or B-2 visitor categories, may apply only if the initial visa was issued in the applicant's home country.
The following TCNs may NOT apply for a visa at a U.S. consulate in Mexico:
- Applicants for B-1 or B-2 visas, including renewals, who are not residing in Mexico;
- Applicants who entered the U.S. with a visa issued in their home country, changed status in the U.S., and now seek a new visa in the new visa category (for example, entering the U.S. as an F-1 student and now seeking an H-1B visa after a change of status from F-1 to H-1B in the U.S.);
- Applicants who entered the U.S. in one visa category and seek to re-enter the U.S. in a different visa category;
- Applicants who entered the U.S. under the Visa Waiver Program;
- Applicants who obtained their current visa in a country other than the country of their legal residence;
- Applicants who have been out of status in the U.S. having violated the terms of their visa status or having overstayed the validity indicated on their I-94s;
- Applicants who are subject to the National Security Entry Exit Registration (NSEER) program or who are a national of North Korea, Cuba, Syria, Sudan, or Iran.
Please note that to travel to Mexico a TCN might need to obtain a visa from Mexico before applying for entry into Mexico. For additional information on who needs a visa and how to apply for a visa to Mexico
click here.
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Nonimmigrant Visa Applicants Must Use New Form DS-160 at U.S. Consulates in Vancouver and Montreal
Earlier this year the U.S. Department of State (DOS) introduced a new Nonimmigrant Visa Application, the DS-160, that combines and replaces the multiple nonimmigrant visa application forms currently filed by foreign national applicants seeking U.S. visas at U.S. consulates. DOS chose to limit the implementation of the new DS-160 to two U.S. consulates in Mexico -- Monterrey and Nuevo Laredo -- on a pilot basis. Recently the use of the DS-160 was expanded to visa applications filed with the U.S. consulates in Montreal and Vancouver, Canada.
The current DS-156 nonimmigrant visa application is used at all but the above four U.S. consulates. The DS-156 is completed online but printed and submitted in hard-copy form to the U.S. consulate at the time of visa appointment. By contrast, the DS-160 is completed and submitted entirely online. The form may be filled out by a third party but ultimately the actual visa applicant must submit the form on line. After submitting the application, the applicant receives a confirmation page that the applicant must print and take to the visa appointment. The information submitted electronically is stored in the DOS database and is retrieved by the consular officer at the interview via the confirmation page. The U.S. consulate in Vancouver warns that the online application must be completed "fully and properly" or else the visa application may have to be rescheduled.
At the U.S. consulates in Monterrey and Nuevo Laredo, applicants are required to make a separate appointment for biometric data collection (photograph, signature specimen, and fingerprints) at the time they schedule their U.S. consular visa interview appointment. The data collection appointment occurs at least a day before the consular visa interview. The U.S. consulates in Montreal and Vancouver collect the biometric data at the time of the scheduled visa interview appointment; therefore, an additional appointment prior to the visa interview is not required.
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Update on PIMS Delays and Need for Original Approval Notices at Visa Interviews
PIMS (Petition Information Management Service) is an electronic system that provides U.S. consular posts with notification of nonimmigrant visa petition approvals. It is the only source of petition approval evidence used in the issuance of visas in H, L, O, P and Q nonimmigrant visa classifications. A visa applicant may not be issued a visa until the consular post is able to verify the petition approval in PIMS.
In order for the petition approval to exist in the PIMS system, U.S. Citizenship and Immigration Services (USCIS) sends to the U.S. State Department’s Kentucky Consular Center (KCC) a duplicate original of the nonimmigrant visa petition filed by the petitioner with USCIS. The KCC then records the petition approval in the PIMS system. If the petition approval has not been recorded in PIMS, the consular posts must communicate with KCC and often visa application process is delayed.
In March 2008, after many applicants experienced delays at consular posts, USCIS and the State Department (DOS) realizes that changes of status petitions, extension of stay petitions, and amended petitions were not being entered into the PIMS system. DOS was under the mistaken assumption that USCIS forwarded all petitions to the KCC when the reality was that USCIS forwarded only those petitions that specifically requested "consular notification." To resolve this issue, USCIS started to ask petitioners to submit duplicate, originally signed petitions with their petitions for extensions, changes of status or amendments. Upon approving a petition, USCIS now forwards this duplicate original to the KCC for entry into PIMS.
While this new process has for the most part solved the problems for the petitions submitted to USCIS after March 2008, there is still the matter of the petitions filed prior to this March guidance. According to the American Immigration Lawyers Association, DOS has instructed all consular posts to implement procedures by which PIMS is checked before the visa interview in an effort to decrease delays. For example, many posts require the petition receipt number in order to schedule an interview. Thus, these posts should be able to check PIMS and query the KCC, if necessary, before the applicant even arrives at the consular post for his or her interview. While this is a step in the right direction, we would still caution visa applicants (particularly those whose extension, change of status or amended petitions were approved before late March 2008 or if the petitioner did not file a duplicate original with USCIS) that visa issuance could be delayed.
Finally, DOS has updated its website to confirm that "the I-797 is no longer needed for the visa applicant's interview, since petition approval is now verified in the Department of State's system called Petition Information Management Service (PIMS)." Please note that while DOS has adopted this procedure, U.S. Customs and Border Protection (USCBP) has not. Applicants applying for admission at a port-of-entry may still be required to have an original (Form I-797) approval notice issued by USCIS.
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Reminder About Travel Risk While Adjustment of Status is Pending
A recent U.S. federal court case serves as a reminder that travel abroad while an adjustment of status (to permanent resident) application is pending with U.S. Citizenship and Immigration Services (USCIS) can be risky.
Mr. Hassan, a Pakistani citizen, traveled abroad while his adjustment of status application was pending and planned to returned to the United States based upon a valid and unexpired "advance parole" travel authorization issued by USCIS. While Mr. Hassan was abroad, USCIS denied his adjustment of status application and revoked the advance parole document. When Mr. Hassan attempted to re-enter the U.S., he was denied admission, placed in expedited removal proceedings, and removed (deported). He filed a lawsuit challenging his removal. The court decided that advance parole is granted by USCIS solely to allow a foreign national to return to the United States while one's adjustment of status application is pending. The court decided that once an adjustment application is denied, continued usage of the advance parole document is not permissible.
We recommend that employers keep their employees' underlying H-1B, L-1 or other temporary visa classification alive at least until USCIS approves the Immigrant Petition that is the basis for the adjustment application and perhaps even throughout the pendency of the adjustment of status stage. If USCIS denies the adjustment of status application, USCIS will not remove (deport) the adjustment applicant if he or she holds a valid and unexpired underlying nonimmigrant visa status, nor will the government normally refuse to re-admit to the United States someone holding a valid H-1B or L-1 visa. In situations where there are additional issues beyond the uncertainty about whether USCIS will approve the Immigrant Petition (such as a status issue or other eligibility issue), keeping the nonimmigrant work visa classification alive through the point of the final decision (and not just through the point of Immigrant Petition approval) on the permanent residence application may be advisable.