GETTING A U.S. VISA
The United States
has been called "A Nation of Immigrants". Today, however,
for certain applicants, it takes some effort to obtain a visa,
even to visit, not to speak of immigrating. The need to guarantee
the freedom and protect the interests of its citizens and
"immigrants" from all over the world who are already in the
United States, induced this nation to guard against an uncontrolled
entry of people from abroad. Some of the control procedures
may seem harsh to an applicant who does not know the reasons
for them. The following interview with a U.S. consular officer
who has served in India is designed to explain certain of
those procedures and the reasons for them. This pamphlet also
contains helpful hints for prospective visa applicants to
speed the processing of their applications and help them be
successful. Though it is oriented to conditions in India,
other readers will find it of interest. The material has been
updated, since it was originally written and published, to
take into account the most recent changes in the U.S. immigration
laws. Any person who desires more detailed information should
contact me. - Allen E. Kaye
GETTING
A U.S. VISA
THE MOST FREQUENTLY ASKED QUESTIONS
Q. Suppose I want to
go to the United States,
how do I get a visa?
A. It depends on your purpose
for wanting to go to the United States. If you would like
to live in the United States permanently, you need a permanent
or immigrant visa; to go there temporarily, a nonimmigrant
visa is required.
Q. First tell me about
the temporary one,
the nonimmigrant visa.
A. Nonimmigrant visas are for
tourists, students, temporary workers, academicians, trainees,
entertainers, businessmen, religious workers and many others
who wish to enter the United States and who do not have the
intention of living there permanently. If you apply for most
types of nonimmigrant visas, you must show that you do not
intend to stay in the U.S. permanently and that you have a
place of residence somewhere outside the United States, to
which you will return after your temporary stay in the United
States. Another important requirement is proof of sufficient
available funds to cover your expenses while you are in the
United States (on a non-work nonimmigrant visa, such as a
tourist or a student visa). The consular officer will also
look for certain evidence: for instance, in the case of students,
academic qualifications, and adequate grasp of the English
language. In the case of businessmen, evidence of appointments,
and contacts, information about the purpose of the trip, and
an itinerary.
Q. It sounds fairly simple,
but I hear that actually many people have difficulties in
obtaining a visa to come to the U.S. Why is this so?
A. Hundreds of visas are being
issued all the time at American consular posts around the
world, especially temporary visas. The problem is that immigrant
visas have strict requirements, and not everyone who wants
to live in the United States permanently can get an immigrant
visa. So, sometimes people apply for a temporary nonimmigrant
visa in order to enter the United States, intending to try
to change their status there, and become immigrants. But U.S.
law presupposes that almost anyone applying for a temporary,
nonimmigrant visa is an intending immigrant, and the burden
of proving that this is not so is on the applicant. This is
the U.S. immigration law. Very often this presumption presents
a problem, especially for young people who are not well settled
in a job or who do not have an active business, or property
and family ties in their own country which would compel them
to return after a brief visit to the United States.
Q. That's rather unfair,
isn't it? Why should it be necessary for the person to prove
that he or she does not wish to settle down in the United
States?
A. It's not a matter of being
unfair. An analogy might be made between a loan officer in
a bank who seeks to establish the amount of risk before approving
a loan application. Unlike many countries around the world,
the United States has an immigration policy based on an honor
system. Once a person is in the United States, he or she is
relatively free. The country has no simple way of knowing
who is a citizen and who is not, or who has a non-work temporary
visa but has taken a job and become an illegal alien or undocumented
worker.
Q. You have no identity
card system?
A. That's correct. The American
people have historically voiced a strong opposition to proposals
which they perceive as infringements upon their constitutional
rights. The United States has no internal controls at all.
Aliens are screened only two times to see if they meet the
requirements of our immigration laws - once by a U.S. consular
officer in the country in which they apply for a visa, and
once more by a U.S. immigration inspector at the port of entry
into the United States. People say, "Well, if they overstay,
why don't you throw them out?" It's not so easy. American
courts are very strict about human rights and the freedom
of the individual, and they have often "slapped down" the
Immigration Service for trying to deport people in violation
of U.S. laws. The government is not allowed to go around kicking
down doors and hauling people out in the middle of the night.
In fact, the courts have ruled that the Immigration Service
cannot arrest someone for questioning merely because he looks
like a foreigner.
Q. But is just anybody
allowed to work in the United States?
A. No, only those who have permanent
status and hold a "green card," or who have temporary working
permits may engage in labor for hire. There is federal legislation
against employers who know-ingly hire people who are not authorized
to work and are in the country illegally. However, not all
employers are aware of these laws, and others intentionally
violate them. Most employers do obey the law. While working
without a proper visa is a violation of U.S. immigration law,
it is not a criminal offense.
Q. And that is not a
sufficient deterrent?
A. Well, many employers do comply
with the law and insist upon seeing the green card or other
work authorization before hiring you, but others do not. So,
you see, it is very important that American consular officials
inquire into every aspect of an applicant's case before they
issue a visa to enter the United States. That is why even
when a person wants to go to visit or study there, he has
to prove that he is not going to stay indefinitely.
Q. But how can one prove
an intention to leave the U.S.?
A. There is no single method.
U.S. laws and regulations intentionally do not prescribe what
one has to do to prove his intention to leave the United States
at the end of his lawful stay. Guidance is given to consular
officers to use in making their independent decisions. That
is why in certain countries, like India, almost everyone who
applies for a nonimmigrant visa is interviewed. It is not
merely a question of whether the person has a relative in
the United States, whether his or her English is good, or
whether there is a job waiting in India. It's more a question
of all the circumstances taken together. Where does the money
come from? What are the family circumstances? If the person
is working, the question is in what kind of job? What are
the financial obligations? All these facts are looked at,
including what the applicant says.
Q. But take the case
of a student who has been accepted by an American university.
How does the student prove that there is no intention to stay
forever? In fact, is it possible to prove it?
A. Certainly. The United States
issues many student visas, and those people have evidently
satisfied the consular officer that they intend only to go
for their studies and then come back.
Q. Yes, but what is the
nature of this proof?
A. A consular officer cannot
say, "Bring us documents ABCD and we will give you a nonimmigrant
visa." It does not work that way. We cannot apply the same
requirements to everyone, except in a very general way. In
other words, the person must show that he or she does not
intend to remain permanently in the United States. Everyone's
circumstances, intentions and plans are different. A little
known fact is that, outside of a valid travel document and
application form, consular officers can issue visas without
the applicant providing another piece of paper. The converse
of this is that consular officers can deny a visa to an applicant
who has submitted hundreds of sheets of paper.
Q. Take the case of a
student. Let's say his circumstances are comfortable - the
applicant has the assurance of a job in his own country, is
a good student, has a good command of English and has strong
family ties. Can't you say, "Okay, that's the kind of person
who will get a visa?"
A. Here's the point: if there
were fixed or specific requirements, everyone would have to
fit the same mold. That would be wrong. Just as people come
in different sizes, they also come in different situations
and we must consider each case on an individual basis.
Q. Wouldn't that give
people the impression that your judgments are subjective?
A. In a sense, yes. Any time
you deal with people, there is an element of subjectivity.
We try to be as objective as possible. Even if someone does
not get a visa the first time, if the applicant obtains additional
information or documentation later that would help establish
an intention of a temporary stay, we are willing to reopen
the case.
Q. All this is because
you think anyone who wants a
visa is a potential immigrant?
A. The term "potential immigrant"
is incorrect. Our immigration law bars the "intending immigrant."
We do not refuse a visa because we think that at some vague
point in the future, the person may change his or her mind
and decide to remain permanently in the United States. As
a matter of fact, everyone has a perfect right to make that
decision. The law recognizes that people do change their minds,
and the Immigration Service, in the United States, sees this
situation all the time. There is a procedure for it. You apply
to the Immigration Service for a change of status from temporary
to permanent, and, quite often, it is granted. The term "potential
immigrant" is a misnomer, because what matters is the person's
intention at the time of the visa application and the meeting
with the consular officer.
Q. That's rather a fine
difference, isn't it? You say that in the law the presumption
is that the applicant is a potential immigrant.
A. No, not a potential immigrant.
By barring the "intending immigrant," the law presumes that
the intention at the time that one applies for a visa is to
stay permanently; and so at the time of application, one has
to prove the contrary.
Q. Well, it comes to
the same thing.
A. No, it doesn't. A potential
immigrant is one who may want to become an immigrant in the
future.
Q. So it is the presumption
at the time of application which is relevant?
A. That's exactly right, and
it is a very important distinction. There is a lot of misunderstanding
on this. People who do not qualify for a temporary visa seem
to feel that their visas have been refused because in the
opinion of the consular officer they may in the future become
immigrants. This is not correct, because the consular officer
makes a judgment on the basis of what is understood to be
the applicant's intention at the time that the ap-plicant
stands in front of the consular officer. This is what the
law requires.
Q. Of the various temporary
visa applicants, which type encounters the greatest difficulty?
A. Oh, students, undoubtedly.
They have the highest rate of adjustments in the U.S. from
temporary to permanent status (of all such adjustments - 40
percent). In the five years from 1971 to 1975, 20 percent
of all Indian students who went to the United States stayed
on. (This figure has gone up considerably since then.) They
are the ones who are in the United States for a long time,
and tend to change their minds. It is not surprising. And
India is different from many other countries since most student
applicants want to go to the United States for graduate training.
Q. What about in other
countries?
A. Many go for undergraduate
training, or even secondary school studies. Most of the Indian
student applicants are well qualified and very talented. Of
the people who go on temporary visas, they are the ones who
stay the longest. When you are young and have been away from
home for four or five years, it is more difficult to come
back and adapt. It is natural to want to stay on. This is
a factor that has to be considered, and one that students
are aware of. If you are a student applicant, I must ask:
With the problems of re-entering your society after a long
stay abroad and a graduate degree earned in the United States,
are you actually thinking of staying on or are you coming
back to face all the re-entry problems? These days, students
often have their wives and families with them, making return
even more difficult. They finish their degrees and begin to
feel more at home where they are, where they have been living
and working, than in the country they left. Better employment
opportunities are also a very significant determining factor.
Frequently, the change of plan occurs after four or five years.
It is a legiti-mate change of mind. The question that concerns
the U.S. government is whether the applicant for a visa is
thinking of staying on in the United States at the time the
applicant comes to the consulate.
Q. Do students who go
for certain types of study have a greater tendency to stay
on than others? For instance, does this happen more in medicine
than in engineering or anything like that?
A. Oh yes. In the case of Indian
students, the U.S. did a breakdown in a sample of adjustments
last year. The main field of adjustments was engineering by
a wide margin, then came the sciences in general and then
computer programming and business administration. Everything
else is far behind. Usually, after students have taken an
advanced degree, there is practical training with a company
in their field of specialization, for up to a year. This training
may be authorized by the U.S. Immigration Service and it frequently
be-comes the source of the job offer for permanent employment
that follows.
Q. O.K., so that's all
about students. Now the other temporary visas, are they any
simpler to get?
A. Compared with the visa policies
of most industrialized nations in the West, all U.S. visas
are relatively simple, once the question of temporary status
has been resolved. A visitor's visa, for instance, is relatively
straightforward and usually involves very little documentation.
People go to see relatives or friends or somebody they know
who is going to shelter them and pay their expenses for a
relatively short time. The financial question is usually very
secondary in these cases. Sometimes just a letter is sufficient
evidence that somebody is waiting for them at the other end.
As for the presumption that they wish to stay permanently,
we talk to them, look into their personal circumstances, see
if they are well settled in India or not. Do they have responsibilities
and a job that enables them to meet their obligations? And
so on.
Q. Do all nonimmigrant
visa applicants have to overcome the
presumption that they wish to stay permanently?
A. Prior to the Immigration Act
of 1990, every H-1B applicant had to convince a consular officer
in applying for an H-1B visa and persuade an immigration officer,
in seeking H-1B admission or status, that the applicant possessed
an unabandoned foreign residence to which he or she would
return on the completion of his or her temporary duties in
the United States. The 1990 Act relieves H-1B applicants of
this burden by, in effect, codifying the doctrine of dual
intent (that one could have a present nonimmigrant intent
and future immigrant intent) developed by case law in response
to the harsh presumption imposed by the Immigration and Nationality
Act (INA) Section 214(b). Since October 1, 1991, aliens seeking
H-1B visas are no longer required to possess an unabandoned
permanent residence abroad. As is also the case with L-1 (intracompany
transferees) visa ap-plicants, H-1B applicants must merely
show that they are coming temporarily to the United States.
The 1990 Act also expressly eliminates the INA Section 214(b)
presumption that every alien is an intending immigrant, but
only for H-1A, H-1B, and L-1 applicants. The 1990 Act also
makes it possible for an alien to qualify for H-1B visa classification,
even after he or she has begun the process of seeking permanent
resident status by adding the provision that, "the fact that
an alien is the beneficiary of an application for an immigrant
visa preference status or has otherwise sought permanent residence
in the United States shall not constitute evidence of an intention
to abandon a foreign residence" for purposes of obtaining
or maintaining H-1 (or L-1) visa status. Consular officers
still play an important role in determining an alien's eligibility
for an H-1B visa, despite the deletion of the foreign residence
requirement and the elimination of INA Section 214(b). As
stated by the House Judiciary Committee, "consular officers
may rely on other evidence indicating the possibility of overstaying
a visa, such as records of past visits to the United States."
Q. When you issue a visa
valid for six months, that becomes the length of time one
is authorized to stay in the United States, right?
A. No. A U.S. visa is not an
entry permit; it is more of a travel permit which gets you
as far as the U.S. Immigration officer at the other end. The
actual entry permit is the little 3"x5" slip of paper that
he staples in your passport which states how long you may
stay and in what nonimmigrant visa capacity. If a tourist
visa is valid for six months, that means that you can travel
to the United States only during that period. A multiple entry
visa means you can travel any number of times during the validity
of the visa. Sometimes a tourist visa will be issued to a
person who will be turned back by the U.S. Immigration Service
at the other end because the traveller's intention may not
appear consistent with the visa just issued. For example,
job letters may be found in the baggage, or a letter from
a relation in the United States saying: "Once you get here,
we will find a job for you." U.S. Immigration officers are
authorized to search baggage, and if they find such evidence
of intention to stay or to otherwise violate nonimmigrant
visa status, they must turn the person back. Tourists are
not allowed to work in the United States without special permission.
On the other hand, we get many older people who have children
settled in the United States. They can stay initially for
up to six months visiting their family and may decide to stay
longer if the U.S. Immigration Service extends their stay.
What the U.S. Immigration Service wants to be sure of in such
cases is just that the person will not stay on without permission.
Q. Now, shall we go on
to the immigrant visa? What are the categories of immigrants
that the U.S. Government allows and what happens when somebody
from India applies for a visa in order to stay indefinitely
in the United States?
A. Every country has what is
called a "numerical limitation." It is not called a "quota"
anymore; in the old days there used to be a quota for each
country, based on the percentage of that country's nationals
in the U.S. population at a given time. The law changed in
1965, and now there is a minimum of 25,620 immigrant visas
per country per year (7 percent of the worldwide numerical
limitation, a figure which shifts every year). Immediate relatives
are excluded from this limit - parents (with U.S. citizen
children over 21), husbands, wives and unmarried children
under 21 years (natural or adopted) of U.S. citizens, U.S.
residents returning home, and other special categories. All
others come under the numerical limitation and are divided
into preference categories, four family-sponsored and five
employment-based.
The family-sponsored preferences are all based
on relationships. The two categories commonly dealt with at
consular offices in India are the second and fourth family-based
preferences. The second preference is for the spouse or unmarried
son or daughter of a permanent U.S. resident (a "green card
holder" who is not a U.S. citizen and lives there on an immigrant
visa). We have many of these whenever the "marriage season"
arrives and many green card holders come to India to marry
a girl from their hometown and take her back to the United
States with them. The fourth family-based preference is for
the brothers and sisters of U.S. citizens. Many of them are
U.S. citizens who often send for their brothers and sisters
to join them - brothers and sisters with their wives, husbands,
and children.
In both cases, the sponsoring relative must
file a petition for the brother or sister or for the husband
or wife or child or son or daughter who is usually in India,
but sometimes in the U.S. Petition approval puts the beneficiary,
or the "applicant," in the queue for an immigrant visa.
Q. I have heard that
there is a new, much tougher financial support requirement
for immigrants. Can you tell me how it works?
A. For more than 100 years, immigrants
have had to show that they would be able to support themselves.
In recent years, some in this country have thought that the
requirements were too easy and that many immigrants were going
on welfare soon after arriving. In 1996, Congress made the
re-quire-ments much tougher. The new requirements took effect
in December, 1997.
Since then, all family-sponsored immigrants
have had to present a binding affidavit of support. The sponsor
is bound to support the immigrant until he or she becomes
a U.S. citizen or has worked for a specified period of time;
and the sponsor can be sued for failure to provide the support.
The sponsor must be the relative who has petitioned for the
immigrant and must have a specified level of income. If the
petitioning relative does not have the required level of income,
another relative of the immigrant who does have the required
income level can execute a binding affidavit of support and
become a co-sponsor. Whoever agrees to make an affidavit of
support has the same responsibilities.
While this new requirement applies mainly to
family-sponsored immigrants, it can also apply to some employment-based
immigrants, if the em-ployer is a relative of the worker or
is a company in which a relative has a significant interest.
This new requirement is very serious and anyone
intending to sponsor relatives for immigration should learn
about it in detail.
Q. What about the people
who are offered a job
in the United States?
A. In many such cases the employer
in the United States applies to the U.S. Labor Department
(first to the State Employment Service) and has to convince
the officials there that the job cannot be filled locally.
On the basis of a Labor Certification, the employer or alien
then may apply to the U.S. Immigration Service and ask for
a preference status - the second or the third employment-based
categories, depending on the skills of the job and the employee.
Professionally skilled aliens can be classed as either second
(if the job requires an advanced degree or if they are of
exceptional ability) or third preference - this is for people
like doctors and engineers. Nonprofessional aliens with specialized
skills are placed in the third preference category. The employment-based
categories are as follows: first preference (also known as
priority workers) which includes (a) aliens with extraordinary
ability in the arts, sciences, education, business or athletics,
(b) outstanding professors and re-searchers and (c) multinational
executives and managers; second preference (professionals
holding advanced degrees, or equivalent, or persons of exceptional
ability); third preference (professionals, skilled and unskilled
workers); fourth preference (also known as special immigrants),
which includes ministers of religion and religious workers,
certain employees of the U.S. government, retired employees
of certain international organizations and their families;
and fifth preference (employment creation-investors).
First preference aliens do not need a labor
certification. Those with extraordinary ability do not even
need an offer of employment. Some second preference aliens
who receive a "national interest waiver" can also immigrate
without an employer or labor certification. These visa types,
however, are often complex and many people find an attorney's
advice to be of great value.
Refugees are treated according to a different
system. Q. So you must have either a close relative in the
United States, or a labor certification, or be exempt from
the labor certification requirement, or be a refugee. Are
there no other categories or possibilities? A. Essentially
there are no other categories or possibilities, which has
been the case for the past 70 years. An immigrant visa lottery
program (which is known as the DV visa lottery) began in 1994,
but natives of India are, in most cases, excluded.
Q. One final question.
Is there anything else that the applicant for an immigrant
visa should know? Has anything important been left out?
A. Read the instructions on our
forms carefully and follow them meticulously. Before asking
for an appointment and sending back their "check list cover
sheet" (Optional Form 169), applicants should wait until they
have all their documents actually in hand. Too often applicants
assume that the documents will come through by the time the
appointment does, but sometimes this does not happen. Many
applicants come from a long distance, without all their documents,
to find that they made the trip for nothing. The appointment
is wasted, because the application is looked at only when
all the papers have arrived. Scheduling appointments and then
having to cancel them makes twice the amount of work for both
applicant and consular officer. The consular office tries
to keep appointments to the minimum. But in the marriage season,
well, it is a bit difficult...
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