One of the fastest changing areas of immigration law has been the consular nonimmigrant visa application process. What used to be a one-page application and a fairly routine mail-in process has now become an eight-page online form and a fairly rigorous interview process. Where consular officers used to engage with lawyers about their clients’ visa applications, consular officers are now shielded by layer upon layer of administration. Where consular officers used to review papers presented at the interview as part of their adjudication, they now rely more and more on individual applicants articulating the merits of their cases. Certainly some of the new measures are justified but what it means for individual visa applicants is that they will need to carefully prepare their DS-160 visa application form and be prepared for their interview. We have already addressed some of the idiosyncrasies of the DS-160 form, so in this post we hope to provide some simple tips and guidelines for the interview.
Before the Appointment
Prior to attending the appointment, visa applicants should do a few things to ensure the interview itself goes smoothly.
- Plan ahead. Visa applicants should remember that visa appointments may not be immediately available. At busy times of the year (usually the holiday seasons) appointments may not be available for almost two weeks. Therefore, it is essential that they book their appointments as soon as they have all their documents (proof of visa eligibility or petition approval notices, for example) collected. Visa applicants shouldn’t book flights until they have the visa in hand. While it is okay to plan to travel a certain day in the future, it is not advisable to book the flight until the visa is in hand.
- Apply at the correct US Embassy/Consulate. Visa applicants should generally apply at the embassy/consulate in their home country. If they reside in a country other than their home country, as long as they can prove residency or ties to this country, they can apply at the US Embassy/Consulate in their country of residence. In some instances, visa applicants may apply at an embassy/consulate that is in neither their home country or their country of residence. Usually this is because this country may be faster in processing their visa or they may be traveling to this country for holiday or vacation. US Embassies/Consulates determine whether and when they will accept “third-country nationals (TCNs),” since not all embassies/consulates accept TCNs and some only accept visa applicants who are applying for visa renewals in the same category. Therefore, visa applicants should always be cautious about applying at an embassy/ consulate in a country where they do not reside and review the website of the US Embassy/Consulate for TCN-specific guidance. As TCNs, applicants may find that their application is more carefully scrutinized or that they may not be able to establish ties outside the US.
- Carefully complete the DS-160. Visa applicants should be honest and accurate in completing the DS-160. They should ensure that the questions they answer on the DS-160 match the information on any petition filed on their behalf. Moreover, they should carefully check all travel dates and addresses before submission. Most importantly, they should disclose any arrests, cautions, or immigration problems. Assuming that the embassy/consulate will not find out about an arrest is a mistake. A petty offense committed when an applicant was a minor will not likely lead to a visa denial but failing to disclose the offense could cause a denial of the visa application, a fraud finding, and in the worst case, a bar to traveling to the US.
- Review materials in the underlying petition or in support of application. If a visa applicant’s case is based on an underlying visa petition, or if their employer or school has provided them a letter or contract in support of their visa application, they should carefully review these materials for accuracy and to ensure they understand what has been written about them and what they will do in the US. Particularly in the case of petition-based applications, consular officers will ask questions about the substance of the petition and applicants should be familiar with the petition filed on their behalf.
- Dress professionally and don’t bring prohibited items. Perhaps this is an obvious one. While applicants don’t have to wear a suit or a fancy outfit, it is important that applicants present a professional appearance. If applicants pay attention to their appearance, it will show consular officers that they are serious about their application. In addition, applicants should generally not bring in laptops or other large backpacks or suitcases. Applicants should review the applicable US Embassy/Consulate website for a list of prohibited items. In some embassies/consulates mobile phones may be allowed but again applicants should check the embassy/consulate website to be sure they are not bringing any prohibited items.
At the Appointment
As an immigrant, I have made many visa applications over the years, before I became a citizen (yay, me!). My earliest visas were processed without an interview (back in 1998) but my last few required me to appear in person. Even as an immigration attorney, the anticipation of attending an interview was quite stressful but it was because I did not know what to expect–the whole interview process was new and evolving. Having now visited a few US Embassies/Consulates as an immigration lawyer and as an applicant, I thought it would be helpful to outline what you can expect on the day of your appointment. Many US Embassies/Consulates also have YouTube videos showing their process.
When visa applicants arrive at the US Embassy/Consulate they will be checked at the entrance to ensure they are scheduled for an interview. Thereafter, they will have to undergo a security screening much like the security screening at an airport. At this point, any prohibited items will be discovered. Most US Embassies/Consulates will not allow visa applicants into the embassy/consulate with a prohibited item. Once the security screening is complete, applicants can enter and will be shown to the room where their visa will be processed. In some instances they will have already provided biometrics (including fingerprints before the appointment) but in many embassies/consulates they will have to be fingerprinted on-site. They will usually take a number and wait to be called to a first set of windows. When they are called up, visa applicants will be fingerprinted (all ten prints, also referred to as “ten-printed”) and their applications will be reviewed. At this point applicants may point out any mistakes or deficiencies in their forms or provide proper photographs if their digital version failed to upload correctly.
After the initial review is completed, visa applicants go back to their seats and wait to be called for the actual interview. One of the most surprising things for me was that when I was eventually called up, the interview was conducted at a window, like a bank teller’s window. It was unnerving that I had to discuss personal matters through a glass window and within earshot of another applicant. Nonetheless, discuss I did. Officers will ask questions that help them better understand the visa applicant’s need to travel to the US. These days the officers seem to put more weight on the interview than they did when I was interviewed; in many cases more than the paperwork they have in front of them, which is why visa applicants should keep the following tips in mind:
- Be specific and calm. Visa applicants should speak slowly and explain carefully and in detail the purpose of their trip. They should be prepared to answer questions about their trip to the US and their work or study clearly and specifically. Since they will be familiar with their underlying petition, they should be able to clearly articulate what they will study in the US, or the exact nature of their job including who will manage them and why their academic training or career history makes them well suited for the job.
- Make ties to their home country clear. For most nonimmigrant visas, officers who interview these applicants are looking to the applicant to show that their trip to the US is temporary and for a specific purpose: study, work in a specific job, perform in an artistic event, or train with a US company, for example. They must demonstrate an intent to return to their home country at the time of their interview and in order to do this they may need to demonstrate their ties to their home country. Strong family ties, ownership of property, compelling work or legal obligations, and an ongoing career in their home country are examples of connections that demonstrate ties to their home country.
- Bring supporting documents. Visa applicants should always bring a copy of their visa petition (or have it easily accessible if it is voluminous) and approval notice, if theirs is a petition-based visa application, or a copy of any supporting documents that were obtained in preparation for their interview such as an I-20 from the school for a student visa, or a letter from the media organization for whom they will film a documentary for an I visa, or a portfolio of their creative photography or designs if they are applying for an O-1B visa, or a copy of their business plan or a letter from the US company with whom they will have business meetings for a visitor visa (B-1). Anything that supports their reason for travel will help. In some instances, an officer may refuse to look at any supporting materials but in most instances, an officer can specifically ask for certain documents, and it’s always best to be over-prepared.
- Be honest. Foreign nationals should not attempt to deceive or exaggerate their career history or business in the US. Nor should they fabricate reasons for their travel. They should not attempt to hide negative aspects of their career history or immigration history. Most importantly, they should not attempt to cover up any past arrests or run-ins with the law, since this would make a denial likely at the time of interview and, indeed, may impact future visa applications. Applicants should be prepared to explain each of these areas clearly and confidently. In the case of previous immigration violations or criminal issues, it is a good idea for visa applicants to consult an immigration lawyer and obtain advice as to how to address these issues at the embassy/consulate.
- Understand that there is no single magic answer. Visa applicants will be granted a visa based on the information they give the interviewer about their overall circumstances. Consular officers are looking to see if the applicant’s story makes sense. There is no secret answer to any single question. The best strategy is for applicants to be clear and straightforward about their particular situation. Additionally applicants should be well-informed about the requirements for their visa. For example, if they have a petition-based visa application, applicants should be aware of how it was demonstrated in the petition that they met the requirements of the visa. In addition, the approval of a petition by US Citizenship & Immigration Services (USCIS) in the US is proof that the particular applicant is eligible for the visa barring the consular officer finding fraud or deception in the application. Understanding the big picture of the visa and petition requirements will ensure they can speak freely with consular officer without focusing on a magic answer.
After the Interview
If all goes well with the interview, officers will advise visa applicants that their case is approved. Alternatively, officers may indicate that the applicant needs to provide certain additional information, or that the embassy/consulate needs to obtain some additional information itself or look into something itself. In the worst case, the visa application may be denied.
- Be patient. In all these scenarios, visa applicants must be patient. The days of picking up the visa stamp the same day as the interview are long gone. Even if the application is approved, the passport with the visa may not be returned for three-to-five business days and sometimes longer in busy seasons. If additional documentation needs to be provided by the applicant, it may take some time to reach the applicant’s file and then more time for the embassy/consulate to make a final decision. If the officer has to get some internal clarification or information it will take a few days to weeks. In some instances where a case is designated as requiring “administrative processing,” it can take six months or more (more about this below). The important thing in all these scenarios is for visa applicants to be clear at the end of the interview as to what the officer’s decision is in their case, and then be patient as the consular officer resolves any concerns or prints the visa.
- If the visa is approved, review the visa stamp carefully for accuracy. When foreign nationals are issued their visa stamp, it is important they check their paperwork very carefully to ensure that all the information is correct. This is important to ensure that their immigration record is correct. Upon receipt of the visa stamp they should look to see that all their biographic information is correct and ensure their picture is correct (I have seen visas with the wrong picture). They should also check that the correct visa classification was issued.
- If not approved. If the visa application is not approved, visa applicants must be sure they understand why and what deficiencies their application contained. If they do not understand what the officers are saying, they should ask politely for a clear explanation. They can also ask what additional documentation they can provide to assuage the officers’ concern or to clarify a particular aspect of their visa application. In most cases, applicants can submit missing information or if the visa is denied, can re-apply at a later date with a new visa application that addresses any concerns raised in the earlier application. But in some instances, if the underlying visa petition will be revoked, or if there is a criminal issue, or if the case is denied for fraud, the applicant may need to consult an immigration lawyer to determine how best to proceed.
- Administrative Processing. Say these words to any immigration attorney and watch a shiver run down their spine. It used to mean that the case required additional background checks, a waiver, or security clearances. It was used sparingly for matters of national security and consular officers are prevented from discussing anything to do with the case when the case is under “administrative processing.” Now it seems like anytime the embassy/consulate needs to obtain some additional information, be it a piece of paper from the other room, or a more intense background check, the case is labeled as “administrative processing.” While we fully recognize consular officers’ right to investigate and clarify, we welcome a dialogue with officers to attempt to help the process. Instead, the label of administrative processing says, “Leave us alone,” without any idea of what is going on and preventing any ability to inquire as to the deficiency. These days when a case is labeled as administrative processing, we as lawyers are forced to review all details of the interview to guess at what triggered the “administrative processing” in order to guess as to how long the applicant will be delayed. Clearly I have a great deal to say about this but I will save it for another post. But if a visa applicant’s case is labeled as being in administrative processing, it is hard to say exactly what the delay will be but a conversation with an immigration attorney will at least help flesh out the potential reasons.
- If approved, travel to the US with the visa. I am ending on another seemingly obvious note. If an applicant's visa is approved, and all is correct on the visa stamp, the foreign national must travel to the US and present that visa at US Customs and Border Protection (CBP) in order to be admitted in the visa classification on the visa stamp. Too often I have heard of foreign nationals going through the process of getting a visa but then failing to present it at CBP when they are inspected. If foreign nationals do not present the visa to the CBP officer, they may be admitted in an incorrect status which may impact their ability to do work, attend school, or participate in the activity covered by the visa itself. So in short, if you got it, flaunt it.
The consular process has evolved in the last ten years and visa applicants should evolve too. They should be educated about the process so that they can confidently advocate for themselves or determine if they need legal representation. We hope this post will help in that preparation, and that applicants will soon know the thrill of seeing a shiny new visa stamp in their passport.