The Nonimmigrant Consular Process

by Ashley Emerson Mendoza


Once foreign nationals receive an I-797 approval notice for the I-129 petition from United States Citizenship and Immigration Services (USCIS), many assume they are done. Many think that this I-797 approval notice is a “visa.” It is not. For most nonimmigrant categories, there are three distinct stages that foreign nationals must go through in order to be admitted to the US in a valid nonimmigrant status:

1. Obtain an I-797 approval notice for a nonimmigrant visa petition from USCIS, confirming a foreign national’s eligibility for a specific visa classification;

2. Attend a visa appointment at a US Embassy/Consulate abroad to obtain a visa stamp in their passport; and

3. Gain admission to the US by passing through Department of Homeland Security (DHS) Customs and Border Protection (CBP) at the port of entry.

This post focuses on the second stage—the consular process. In order to enter the US in a valid nonimmigrant visa status, foreign nationals must have both a valid I-797 approval notice for their nonimmigrant visa petition from USCIS and a valid visa stamp in their passport. A visa stamp is the actual visa processed into a foreign national’s passport by a US Embassy/Consulate abroad.

There are exceptions to this general requirement. For example, there are certain nonimmigrant visa types that do not require an underlying petition and resultant I-797 approval notice because they are applied for directly at the US Embassy/Consulate or US port of entry (e.g., E-2s, E-3s, TNs, etc.). The consular process for these visa types will differ from the process described in this post. Foreign nationals should speak to their attorney or view the website of the US Embassy/Consulate in their home country for guidance. Further, eligible visitors from Visa Waiver Program countries and eligible Canadian and Bermudian citizens for certain nonimmigrant visa categories may enter the US without a visa stamp in their passports. 

When discussing the consular process generally, it is important to note that the exact process varies from US Embassy/Consulate to US Embassy/Consulate and sometimes from week to week. We typically check the Embassy/Consulate website to confirm the process and ensure all papers are in order as late as the day before a client attends an appointment to ensure nothing has changed. Having said that, there are some procedures that are fairly standard across the board. We discuss these standard procedures below.

Is a Visa Appointment Necessary?
The first step in the consular process is to determine whether a visa appointment is necessary. For the vast majority of foreign nationals between the ages of 14-79, an appointment is required. If foreign nationals, however, are applying for the same visa classification they previously held, within 12 months of the expiration of their prior visa, and they have previously been 10-printed (i.e. prints of all fingers taken), they may be eligible for a waiver of the interview requirement. The exact requirements for being exempt from attending a visa appointment are available on each US Embassy/Consulate’s website (see usembassy.gov). Any foreign nationals who are confirmed to be exempt from the interview requirement may apply for their visa stamp from a US Embassy/Consulate by mail by preparing the required documentation and paying the requisite fees. The processing time varies at each US Embassy/Consulate, and in some cases may take longer than attending an in-person visa appointment. Foreign nationals using a mail-in procedure may still reference the general guidelines found below.

To view the specific requirements for a US Embassy/Consulate’s mail-in procedure, foreign nationals should access the US Embassy/Consulate’s website at usembassy.gov.  

Scheduling the Visa Appointment
The foreign national will need to select the US Embassy/Consulate at which to attend the visa appointment. The US Department of State lists US Embassies/Consulates around the world at usembassy.gov.

When choosing a US Embassy/Consulate, foreign nationals should ensure that the location they select issues the type of visa they are applying for. Generally, foreign nationals should attend the visa appointment at the US Embassy/Consulate in their country of citizenship; however, foreign nationals may be able to attend an interview in another country if the US Embassy/Consulate in that country accepts third-country nationals, i.e., nationals of countries other than the one in which the US Embassy/Consulate is located. Before scheduling a visa appointment at a US Embassy/Consulate in a country that is not a foreign national’s country of citizenship, it is important to confirm that the selected US Embassy/Consulate will process visas for third-party foreign nationals by viewing the US Embassy/Consulate website or calling its contact number.

Often, the US Embassy/Consulate requires that foreign nationals complete the online Form DS-160 prior to scheduling the visa appointment. The DS-160 is an online form that captures foreign nationals’ basic biographic data, work and travel history. Upon completion and submission of this form, the US Department of State will generate a confirmation page with a bar code on it. Each DS-160 has a unique application ID number/bar code number; this is the number that foreign nationals are often required to provide prior to scheduling the visa appointment.

Some US Embassies/Consulates may also require that foreign nationals pay the visa fee, called the Machine Readable Visa (MRV) fee, prior to scheduling the visa appointment (most frequently by phone or online). It is most common, however, for US Embassies/Consulates to allow foreign nationals to pay the MRV fee after scheduling the appointment, requiring only that it is paid prior to attending the visa appointment.

For instructions on exactly what information is required prior to scheduling a visa appointment, foreign nationals should view the website for the US Embassy/Consulate where they make their appointment.

Preparing for the Appointment
The documentation foreign nationals will need to prepare in support of their visa application will vary vastly depending on the type of visa for which they are applying. In general, the following is a list of important documents foreign nationals need to prepare and bring with them to the visa appointment:

1. Printed appointment confirmation page
Many US Embassies/Consulates will have a confirmation page available if the appointment is booked online, or send a confirmation email if the appointment is booked by phone. This should be printed and brought to the visa appointment;

2. Printed confirmation of the MRV fee
The method of payment for the MRV fee varies depending on the US Embassy/Consulate. Many US Embassies/Consulates allow for online payment using an ATM/debit/credit card, but the methods still vary. For example, in order to process the payment online, the US Embassy in London requires nonimmigrant visa applicants to pay the proper amount using a UK ATM/debit card (not a credit card, and not an ATM/debit card from any other country); while the US Embassy in Frankfurt allows for online payment using an ATM/debit card from any country (not a credit card); while the US Consulate in Sydney allows for payment using an ATM/debit card or credit card from any country. Other US Embassies/Consulates do not allow for payment via online ATM/debit/credit card. For example, the US Embassy in New Delhi has the following options: National Electronic Funds Transfer (NEFT); Mobile Payments (IMPS); and cash payments at DRUK Bank, AXIS Bank, or Citibank.

Foreign nationals should always bring printed proof of the MRV fee payment to the visa appointment, preferably an original receipt if it is available;

3. Printed form DS-160 confirmation page
The DS-160 form can be found on the Department of State’s website.

Completing the DS-160 can be time consuming, but is not difficult. The only documents truly needed to fill in the fields of this form are the I-797 approval notice from USCIS and the passport for reference to past international travel. It is also important to note that in order to complete this form, foreign nationals need to have a digital passport-style photo ready to upload. The specifications for this photo’s format are exact.

Before beginning to draft the DS-160, foreign nationals should decide at which US Embassy/Consulate they will process their application. The US Embassy/Consulate is the first field to fill in when beginning the form, and this cannot be altered once the draft is created;

Even if a US Embassy/Consulate does not require the DS-160 to be completed prior to scheduling an appointment, foreign nationals should complete and submit this form at least 48 hours in advance of their appointment date;

Foreign nationals should also print the DS-160 confirmation page and bring it to the visa appointment;

4. Valid and undamaged passport with at least 2 blank pages for the visa stamp and valid for at least six months beyond the period of stay in the United States (unless exempt by country-specific agreements AND all previous passports available, especially those that show any international trips or previously issued visas to the United States;

5. I-797 Approval Notice issued by USCIS, if applicable;

6. Copy of the I-129 petition that was filed with USCIS, if applicable;

7. Hard copy of the passport-style photo that was uploaded to the online Form DS-160; and

8. Proof of the foreign national’s ties to the home country
This can be a wide range of documentation, but most commonly it is proof of a foreign bank account, ownership of property, proof of family ties, etc.

9. Passport delivery materials, if applicable
Many US Embassies/Consulates provide a courier service free of charge to return the passports with the new visas issued into them to visa hubs for pickup or a home address that foreign nationals indicated when scheduling their visa appointments. Some US Embassies/Consulates do charge an additional fee for home delivery. For example, the US Embassy in London charges $30 for home delivery rather than sending the passports to a designated visa hub.

Depending on a foreign national’s country of citizenship, it is possible they will need to pay an additional reciprocity fee which varies by type of visa and nationality of the applicant, and is based on what the foreign national’s government charges US citizens for an equivalent visa. A list of reciprocity fees may be viewed at the Department of State’s website. 

It is crucial to view the exact requirements for each visa type (as well any specific to applicant’s nationality) on the website for the selected US Embassy/Consulate, as there are often location-specific idiosyncrasies. For example the US Embassy in Tokyo requires that all documents at the visa appointment be presented in a specific order inside of a clear plastic folder!

What to Expect At the Appointment
When arriving at the US Embassy/Consulate for the visa appointment, it is important to review the security policy; often there are no cell phones allowed into the building. Once inside the building, foreign nationals can expect to wait in a lobby area until they are called for their appointment. At times the wait can be several hours.

Once called for the appointment, the foreign national will most often speak to an officer at a counter window—not in a private room. There is little privacy during the appointment. The foreign national will have his/her fingerprints scanned and be asked a series of questions about the case. The appointments typically do not last very long and foreign nationals only have a short time to describe their case or to answer any questions.

If the appointment goes smoothly, the US Embassy/Consulate will retain a foreign national’s passport in order to issue the visa stamp.

What to Expect After the Appointment
Generally, foreign nationals can expect that a US Embassy/Consulate will process the visa into their passport within approximately 3-5 days. Thereafter it may take an additional 3-5 days or so for the passport to be delivered to the address provided. Often, a US Embassy/Consulate website will report the average visa processing time and wait time for passport delivery. An additional resource that reports the average visa processing time is available via the US Department of State website. Please note that this website should not be relied upon too heavily, as it is not always up to date.

Very few US Embassies/Consulates offer the option to pick up the passport after the visa has been processed. Most commonly, the US Embassy/Consulate has a designated courier service that delivers the passport to the address that the foreign national specified at the time of the appointment scheduling.  Frequently, the US Embassy/Consulate’s service will provide foreign nationals with tracking numbers so they may track the return of their passport.

What Could Go Wrong?
When scheduling the visa appointment, foreign nationals should bear in mind that it may take USCIS48 hours or longer to notify the US Department of State of a visa petition’s approval through the Petition Information Management Service (PIMS) system. The US Embassy/Consulate is unable to approve and process a visa until after the underlying visa petition’s approval is reflected in the PIMS system. If the US Embassy reports an approved case is not reflected in the PIMS system, foreign nationals should inform their employer or lawyer right away.  

Many foreign nationals are pressed for time and may want to request an emergency appointment. The availability of emergency visa appointments varies by US Embassy/Consulate and also depends on the volume of appointments the specific US Embassy/Consulate is experiencing at the time of the request. Some locations will approve an emergency visa appointment for urgent work engagements where it can be shown there will be significant financial loss to the US petitioner. Other locations, however, only grant emergency visa appointments for family and medical emergencies. Each US Embassy/Consulate has different protocols in place for obtaining an emergency visa appointment. Foreign nationals should check the website for the US Embassy/Consulate of their choosing for further details.

If foreign nationals have ever been arrested and/or have a criminal conviction, have a medical ineligibility, or have been denied entry into or deported from the US, they should consult an attorney. They will definitely need to factor in additional time for their visa processing. Some US Embassies/Consulates require foreign nationals to disclose this information at the time they book the visa appointment. All US Embassies/Consulates require foreign nationals with these background issues to present additional documentation and/or follow special procedures. This is another requirement that varies vastly by US Embassy/Consulate. At a minimum, foreign nationals will need to present original records related to their background issues at their visa appointment, while other US Embassies/Consulates have more detailed protocols. At the US Embassy in London, for example, visa applicants with an arrest or criminal conviction in their background are required to furnish an ACRO Police Certificate issued within six months of the date of the visa interview, as well as a completed personal data form VCU1. It is also standard practice at the US Embassy in London to send visa applicants with a DUI on their record that is less than a few years old to visit a panel physician for a physical exam before the US Embassy can approve and process the visa. The delay in visa processing is case specific and may range from a few days to several months.

“Administrative processing” is one of the least favorite phrases for immigration attorneys to hear during the consular process because they are never told exactly what it means and it covers a wide range of circumstances. It may refer to a small delay related to a PIMS verification; it may be required because the US Embassy/Consulate is questioning whether the visa petition should have been approved in the first place; or it may be needed because a foreign national’s application needs additional background checks. Normally, the interviewing officer will provide the foreign national with a document stating that the case has been put into administrative processing. Some US Embassies/Consulates provide visa applicants with a tracking number for their case to check for updates, while others do not provide any information while the case is in administrative processing. Whether a visa applicant’s passport is returned to them during the administrative processing period also varies.

Recently, more and more US Embassies/Consulates have been conducting interviews to re-assess foreign nationals’ eligibility for the particular visa category that was previously approved by USCIS. Foreign nationals should always be familiar with their case and prepared to discuss not only their proposed position in the US, but also their background and credentials.

It is crucial to remember that the consular process is constantly changing and evolving at every US Embassy/Consulate around the world. Recently, for example, the US Embassy in London overhauled their visa appointment system and rolled out several new procedures (which we will discuss more in depth in a separate post). For this reason, it is important for foreign nationals to check the US Embassy/Consulate website for updates and changes when making their consular visa appointment.