5 updates to sort out visa processing confusion
There is a lot of confusion out there regarding the inter-relationship between petition based “visa” processing and consular processing, what having a “visa” really means, and the significance of the I-94 (Arrival/Departure ) document issued by passport control. Let us sort this out.
1. What is a visa?
A “visa” is basically an entry document. It allows the visa holder to be admitted to the U.S.. It is issued by the U.S. Department of State through one of its consular offices, of which there are hundreds all over the world. While there are certain types of visas that allow the visa holder to work in the U.S., like the E- treaty trader/investor visa, which is wholly processed by a consular office, most visas are just entry documents: while they authorize a person to enter the U.S., they do not authorize that person to work in the U.S..
The most well-known example of this type of visa is the tourist visa (B-2).
2. Petition Based Visas
To obtain most work visas entails a two-step process: Step 1 requires there to be a petitioner, usually an employer, who files a petition with U.S. Citizenship and Immigration Services (“USCIS”)–a bureau of the U.S. Department of Homeland Security (“DHS”)– which is based in the U.S.. A petition approval means that once the prospective employee is admitted to the U.S., she would be authorized to live and work here.
To be able to enter the U.S., however, the prospective employee would need to complete Step 2–obtain a visa. This is done by way of the employee’s filing an application with the relevant State Department Consular Office, located in the applicant’s nation of residence. It is important to note that being the beneficiary of an approved petition is no guaranty that a consul will approve a visa application.
DHS and the U.S. Department of State are wholly separate agencies and consider different factors.
3. How is it Possible to be the Beneficiary of an Approved Petition and still be Denied a Visa
Since 9/11, consuls have taken much more seriously the task of evaluating the qualifications of a visa applicant.
For example, while an employer petition may focus on the proposed employment opportunity and the visa applicant’s qualifications to be employed in the proposed position, the consular officer may yet find the applicant inadmissible, among other things, because the applicant overstayed the terms of a visa previously issued to her, or committed a crime.
Next- #4 Overstays and #5 Take Away