Consular Processing for Nonimmigrants

Except in very limited circumstances, if an alien wants to enter the United States as a nonimmigrant, an alien must apply for a non-immigrant visa at a U.S. consulate or embassy abroad. Pursuant to the Immigration and Naturalization Act, an alien applying for a visa to enter the United States is presumed to have immigrant intent. An alien seeking to obtain a nonimmigrant visa has the burden to prove that he/she does not have intent to immigrate and remain in the U.S. permanently. This is done by presenting to the U.S. consulate the documents required by the U.S. Citizenship and Immigrations Services (USCIS) for the particular visa the alien is seeking to obtain. U.S. consular officers will review an alien's visa application and decide whether the alien has satisfied the burden of proving nonimmigrant intent. In most instances, a pending application for permanent residence precludes an alien from proving they possess nonimmigrant intent. However, there are some classes of nonimmigrant visas where an application for permanent residence does not bar the alien from attempting to prove the nonimmigrant intent he/she needs to show to obtain the nonimmigrant visa he/she is seeking. In these instances, the USCIS allows the alien applicant to have dual-intent (i.e., the intent to immigrate and nonimmigrant intent).  The visa categories that allow dual-intent are H-1, L-1, O-1, P, and K.

U.S. consular officials have a wide range of discretion to deny a visa application. A U.S. consular official can deny a visa application for any reason or no reason at all. Aliens who are seeking to obtain a nonimmigrant visa for entry into the U.S. put togethertheir applications by gathering the following to present to the U.S. consulate:

  1. Form DS-156, the standard nonimmigrant visa application;

  2. Passport of the visa applicant;

  3. One photograph following these requirements;

  4. Applicable application fee;

  5. USCIS approval notice of a nonimmigrant petition or certification from a sponsoring institution when prior approval or certification is required for issuance of a nonimmigrant visa; and,

  6. Supporting documentation establishing the alien's eligibility for the particular nonimmigrant visa being sought.

In most instances, the visa seeking alien submits the documents and fees mentioned above to a visa-issuing U.S. consulate by making a personal appearance at the consulate. After the alien physically submits the application materials, the alien waits while the papers are reviewed by a consular officer. When the initial review is complete, the consular officer will typically call the alien in for questioning. If the consular officer is satisfied with the alien's responses and visa application, the alien's application is approved. In countries where the visa refusal rate is low, consulates allow the visa application to be mailed to them.

Generally, a nonimmigrant visa application can be made at any visa-issuing U.S. consulate, and there is no requirement that the alien apply for the visa in his or herhome country. However, there is one notable exception. An alien must apply for a nonimmigrant visa in his/her home country if he/shewas issued a nonimmigrant visa in the past, was admitted to the U.S. based on that nonimmigrant visa, and remained in the U.S. beyond the period of stay authorized by that visa.

(Updated 10/09/12)

For more information on non-immigrant visas, please click on the following links: