The attorney can properly prepare the visa application forms and a legal brief for the consul and guide the applicant through the consular procedures. The scope of attorney representation at the consulate varies from full participation at the visa interview to having to remain in the waiting area. At some consular posts, attorneys are permitted to represent their clients at the visa interview and explain or clarify issues. As post policy often changes quickly and with little or no prior notice, attorney guidance and representation can be extremely valuable.
Where To Apply?
In Canada, the choices include U.S. Consulates in Vancouver, Calgary, Toronto, Montreal, Halifax, Quebec, and the U.S. Embassy in Ottawa. In Mexico, there are border posts in Tijuana, Nogales, Nuevo Laredo, Ciudad Juarez, and Matamoros and other posts include Monterrey, Hermosillo, Merida, Guadalajara, and the U.S. Embassy in Mexico City. Each varies in terms of their rules and policies regarding eligible visa categories, attorney representation, interpreters, and visa issuance processing time. Most of the posts in Canada and Mexico limit TCN visa applications to renewal of same category visas and often have restrictive policies on applicants who initially enter on a B-1/B-2 visa and subsequently wish to change status to student or a work category, regardless of whether they have a change of status approval issued by U.S. Citizenship & Immigration Services.
Who Can Apply?
As a general rule, INA section 222(g) prohibits a TCN visa applicant who is out of status from applying for an NIV at a border post. Accordingly, regardless of whether a TCN applicant is subject to the three or ten-year bar, one day of being out of status results in their ineligibility. Such applicants, who have overstayed a date certain Form I-94, must apply for all future visas in their home country. The law allows minor exceptions for "extraordinary circumstances." Applicants in J-1 or F-1 status with D/S (duration of status) Form I-94's are usually not subject to 222(g). However, while not subject to ?222(g), many border posts will not accept TCN NIV applicants outside the grace period (60 day grace period for F; 30 day grace period for J).
Nationals from "List of 26" countries (a classified list of predominantly Muslim countries) are typically not allowed to apply in Mexico, but may apply on a case-by-case basis at certain posts in Canada.
HOW TO BOOK AN APPOINTMENT AT A BORDER POST?
Appointments for TCN's in Mexico can be made online at www.usvisa-mexico.com or by calling 1-900-476-1212. Appointments for TCN's in Canada can be made online at www.nvars.com or by calling 1-888-840-0032. Appointments are usually made at least 14 days in advance for posts in Mexico and 6-8 weeks in advance for posts in Canada.
What Forms And Documents Are Usually Required?
Form DS-156 - All posts (that are not piloting the Form DS-160) require the Form DS-156 be completed online, printed by the applicant, and presented with the bar code page at the time of the application. This version of Form DS-156 is available online at http://evisaforms.state.gov and at most consulates websites. This form allows posts to scan the information directly into their computer systems, rather than manually inputting the data.
Form DS-157 -- This form is required for all male applicants between the ages of 16-45 and at some posts female applicants are required to complete this form and other posts require all applicants regardless of age to complete this form. It requests information about the applicant such as employment and education history, military background, and countries visited in the last 10 years. This form is important for consular officers in determining whether certain applicants are subject to a security clearance.
Form DS-158 -- This form is required for all J, F, and M visa applicants and details personal and contact information. Some posts also require all applicants to complete this form.
Form DS-160 -- This is a new electronic form which is being required at the Mexican, Australian, Chinese, Indian, and Russian posts as well as posts in Vancouver, Montreal, Toronto, Dublin, Hamilton, Cairo, Tripoli, Algiers, Podgorica, Abu Dhabi, Riyadh, Paris, Istanbul, and Hong Kong. At the posts in Ciudad Juarez, Nuevo Laredo and Monterrey, applicants must also make a separate appointment at an off-site "Applicant Service Center" to submit biometrics. The form is available at https://ceac.state.gov/genniv/ and allows the posts to begin the visa process prior to the interview. DOS plans to expand the DS-160 to all consular posts by April 30, 2010.
Other Supporting Documents.
At minimum, an applicant should have a complete copy of their petition which was submitted to the immigration service, a passport valid for at least 6 months, and other supporting documents It is recommended that the applicant check with an experienced immigration attorney as to the required supporting documents for the visa interview.
Are There Risks With Border Processing?
On April 1, 2002, DOS changed the automatic revalidation provision of 22 CFR ?42.112(d). Automatic revalidation applies for trips to Canada or Mexico of 30 days or less provided that the alien is not rejected for a visa application and not from the DOS designated State Sponsors of Terrorism ("T-4") which includes the following four countries: Iran, Cuba, Syria, and Sudan. Currently, if an applicant applies for a visa at a border post or is a national of "T-4", it is necessary to have a valid U.S. visa to re-enter the United States. Rejected visa applicants must now travel back to their home country directly from Mexico or Canada. Prior to this change, applicants who were denied (or delayed) a visa were able to return to the United States using an expired visa and a valid Form I-94 which automatically revalidated their visa.
Consular processing for TCN's at border posts is a complex and highly specialized field of immigration law. Applicants should be aware of the significant risks, including potential delays for security clearances, denials and most important, the inability to return directly to the U.S. if rejected. The advice of an experienced attorney is highly recommended as he/she will be able to research post policy, thoroughly review the applicant's immigration history and status, properly prepare the visa application forms and supporting documents, and be available to assist the applicant with the visa process.
Despite the potential risks, TCN processing in Mexico and Canada continues to be a desirable option.
Most TCN posts are experienced with NIV applications, appointments are readily available and attorneys are often able to assist their clients in this complex area of practice. The good news is visas (not subject to a security clearance) are generally issued within two days of the interview.
Additional resources provided by the author
See CONSULAR PROCESSING GOES GREEN IN 2009 -THE ELECTRONIC PAPERLESS ERA
by Tien-Li Loke Walsh and Bernard P. Wolfsdorf
Avi Friedman is a Senior Attorney with Wolfsdorf Immigration Law Group in Los Angeles, California. He is currently serving his third term on the American Immigration Lawyers Association (AILA) Department of State Liaison Committee and his seventh term as the Consular Affairs Liaison for AILA’s Southern California Chapter. He has authored numerous immigration articles including several chapters for AILA’s “The Visa Processing Guide” (Ottawa, Canada and Nogales and Monterrey, Mexico) and has participated as a speaker on consular visa issues at AILA and NAFSA conferences.
He has extensive experience with assisting applicants with visa interviews at U.S. consular posts worldwide with a focus on attorney/client representation at U.S. posts in Canada and Mexico. Mr. Friedman is listed in the International and California Editions of the Who’s Who of Corporate Immigration Lawyers and the Southern California Super Lawyers.
Should you have any questions regarding the above or are interested in having attorney assistance with a nonimmigrant visa application, please contact Avi (firstname.lastname@example.org) at 1-800-VISA-LAW.