Applying for a U.S. Visa

"How do I apply for a U.S. visa?"  This is one of the most common questions that I get as an immigration lawyer.  It is a simple enough question.  And yet the answer is anything but simple.  Folks who ask this question assume that there is a standard set of steps one can take to get a visa.  The reality is far more complex than a simple recipe for success.  

The current U.S. immigration laws are the product of a convoluted web of statutes, regulations, case laws, agency memos and policies, etc., all brewed together over many decades, fueled by political and economical influences.  The rules are highly complex and confusing.  This article is intended to only provide some basic information about the U.S. visa system.  To evaluate an applicant's eligibility for a U.S. visa, a comprehensive analysis of the applicant's personal information and background is needed. 

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Identify the Right Visa to Apply

The first step is to identify the type of visa to apply. There are two main types of U.S. visas, non-immigrant and immigrant.  Non-immigrant visas are for temporary stays or short-term visits in the U.S. For examples, B1 visa is for business travel; B2 visa is for pleasure; F1 is for academic studies; K1 is for fiances of U.S. citizens; H1B is for professional workers; L-1 is for international company transferees; R1 is for religious workers; etc. Non-immigrant visas generally require proof that the stay in the U.S. is temporary. Each visa category has its specific legal requirements. Immigrant visas are issued to foreigners who intend to live in America as permanent residents. The majority of immigrant visas are based on either family relationship or employment opportunities.

Non-immigrant Visas

Generally speaking, non-immigrant visas are processed by an overseas American Consulate.  Processing times depend on the type of visas and volume of cases at a particular U.S. Consulate.  One must fill out the DS160 form and provide the proper supporting documentation. For example, F1 visa requires the student to provide evidence of academic qualifications, financial support and strong ties to the home country.  Visa refusal rates vary, depending on the type of visas,  applicant's background, and location of the consulate office.  After receiving a denial, an applicant may reapply again if s/he can overcome the reason for denial.

Immigrant Visas

Applying for an immigrant visa is a much longer and complicated process. Obtaining an immigrant visa allows the holder to obtain a green card upon entering the U.S.  As mentioned,  a foreigner can generally apply for an immigrant visa based on a recognized family relationship or an offer of employment in America.

Under the current policy (which may change under the Trump Administration), an American citizen may petition for her spouse, children, parents and siblings to immigrate to the U.S.  A U.S. green card holder may petition for his spouse, minor children and unmarried adult children to come to the U.S.  Processing times vary for different countries and visa categories.

Alternatively, a U.S. employer may also sponsor a foreigner to work in the U.S. permanently.  The legal requirements are quite complicated, emphasizing protection of the rights of American workers.  One may also petition for a green card based on his/her exceptional or outstanding abilities, knowledge, education, talents and other background.  A thorough analysis of the applicant's qualifications by an experienced immigration attorney is required if one wishes to pursue this route.  For most immigrant visa categories, the processing times are determined by the monthly Visa Bulletin published by the U.S. State Department.

Applying From Within the U.S.

If a foreign national is already legally present in the U.S., it is possible for the person to apply to change to another status or even for a green card without leaving the U.S.  For example, one may apply for adjustment of status to become a lawful permanent resident within the U.S.  However, one must first meet all legal requirements.  Generally speaking, one must maintain his/her immigration status in the U.S. by all means.  Actions taken by a foreigner in violation of his/her visa status - such as overstaying without authorization or working illegally - will have serious consequences including cancellation of visa status,  deportation and bar from returning to the U.S.

Conclusion

Applying for a U.S. visa is like navigating a maze of rules and regulations, and U.S. immigration laws and policies change constantly.  For example, the Trump Administration just proposed a merit-based immigration system that emphasizes immigrants' qualifications and skills.  At the same time, the Administration intends to cancel the Diversity Visa Program (visa lottery) and greatly reduce the number of immigrant visas based on family relationship.  Although it is unlikely that this plan will be adopted by Congress in its entirety, it illustrates the importance of having the most updated information.

In conclusion, to increase the chance of obtaining a U.S. visa, one must be equipped with the most updated information, sufficient evidence and proper legal advice.