Immigration Law Insights

Foreign nationals often plan international travel during the holidays.  As a result, it is one of the busiest times of year for visa processing at U.S. Consulates and Embassies. Here are a few helpful considerations to make foreign national holiday travel a little less stressful for both employment-based visa sponsors and beneficiaries.

Do I have a valid visa?
The time to check visa validity is before travel. Discovering an expired visa upon attempting return to the U.S. can cause both unnecessary stress for the foreign national and negative impacts to employer operations. The validity period of nonimmigrant visas varies depending on the visa type and nationality of the foreign national. Validity can vary from one to ten years. A valid visa does not guarantee admission and does not determine how long the individual can remain in the U.S. A valid visa only provides the foreign national the opportunity to “knock on the door” and attempt entry. As long as a visa is valid on the date of entry, the foreign national will typically receive a term of stay consistent with the validity of their employment-based approval expiration. Foreign nationals should also be aware that a visa alone may not be sufficient for entry. Those seeking to enter the United States on an employment-based visa should always travel with a copy of their I-797 Approval Notice (if applicable), a letter from their U.S. employer confirming continued employment, and recent pay stubs.

My visa is expiring or I need a different kind of visa. Now what?
In the past, nearly all visa applications required foreign nationals to attend an interview at a U.S. Consulate. Due to COVID-19 shut-downs and subsequent visa application backlogs, more and more Consulates are utilizing interview waivers for certain visa applicants. Depending on visa type, country and other criteria, Consulates may direct the foreign national to provide their application documents by mail or at a drop-off location once they are physically present in their country of application instead of appearing in person at the Consulate.

It is always preferable to apply for a visa in one’s country of nationality, but it is possible to apply as a Third-Country National in some instances. If scheduling a visa appointment at the last minute, an applicant can check all available Consulates to determine the shortest wait time. Global visa wait times are updated periodically at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/global-visa-wait-times.html

Even with an interview waiver, every nonimmigrant foreign national requiring a visa to enter the U.S. must complete a DS-160 Application on the Department of State’s website and pay the applicable visa fees. Importantly, DS-160s and visa fees can be submitted up to a year in advance of travel as long as the underlying nonimmigrant authorization will still be valid at the time of application. If possible, travelers should be sure to confirm appointment details and gather required documentation detailed on the visa services provider’s website.

Each U.S. Consulate uses a third-party visa services provider, and supporting documents and procedures regularly vary by Consulate. Foreign nationals should check the requirements and process instructions for the particular country in which they will apply and set up an online account.  Whether attending an interview or using the drop-off method for the visa application, it is always preferable to handle visa application issues at the beginning of a trip to mitigate the chances of delayed return travel due to administrative processing. Administrative processing is a period of additional review to determine visa eligibility. During administrative processing, the Consulate may conduct additional background checks or request additional supporting documentation. Administrative processing can delay travel for weeks after the visa interview and there is no guaranteed timeline for administrative processing to be completed.

Do all travelers have a valid passport?
While seemingly obvious, an immediately expiring passport can cause a multitude of issues for foreign national travelers. Foreign national employees should check their children’s passports carefully as many countries issue minors passports with shorter validity periods. Customs and Border Protection (“CBP”) may issue a shortened I-94 upon entry to coincide with a passport expiration, despite the foreign national having status approval for a longer period. Those planning to travel should check the validity of their passport before exiting the United States and, if necessary, obtain a new passport before departure. 

After entering the U.S.
Nonimmigrants should always check their visa entry stamp and I-94 expiration upon entering the U.S. Upon entry, a new I-94 record should be available on the CBP’s website, which is accessible here.

The I-94 expiration is the controlling date by which a foreign national must leave the U.S. or file to extend an immigration status with USCS. Expiring passports or dependent children turning 21 (also known as “aging out”) will cause CBP to issue shortened I-94 expirations. Errors do happen, but it is easier to correct an error while still at the point of entry.

Burr & Forman’s immigration team advises clients on all aspects of the nonimmigrant work visa process. If your business has questions regarding employment-based visas, contact Melissa Azallion Kenny (makenny@burr.com), Anna Scully (ascully@burr.com), or Jon Eggert (jeggert@burr.com) on the Burr & Forman immigration team.