International Travel Considerations for Nonimmigrants
Updated November 16, 2022
Foreign nationals present in the United States in a temporary status — including H-1B, L-1, F-1, J-1, and TN — and their dependent family members are “nonimmigrants,” admitted to the United States for a set period and specific purpose. After traveling internationally, nonimmigrants must show a valid visa stamp in the appropriate category at a port of entry to reenter the United States. Limited exceptions to this requirement exist for nonimmigrants who have a valid Form I-94 record of admission and have traveled only to Mexico or Canada for a trip of 30 days or less and for Canadian citizens, who are visa exempt.
As we emerge from COVID-19 consular closures and visa stamping backlogs, several new initiatives and discretionary policies are in place to facilitate and expedite nonimmigrant visa stamping. Foreign nationals should always keep in mind that policies may vary worldwide and may be subject to change at any time.
Here, we summarize important considerations and current nonimmigrant visa stamping options available for foreign nationals traveling internationally.
Automatic Visa Revalidation
Automatic visa revalidation allows a foreign national to travel internationally to Mexico or Canada for a trip totaling less than 30 days and to return to the United States without a valid visa stamp in certain circumstances. To qualify for automatic visa revalidation, the foreign national must have a prior U.S. visa and a valid I-94 reflecting an approved extension or change of status and cannot be applying for a new visa stamp on the trip. Then, a foreign national can travel to Canada or Mexico (with applicable documents required for entry to the country) and can return to the United States using their expired visa stamp, or a visa stamp reflecting a prior status that has since changed, together with their valid I-94. Under these circumstances, U.S. Customs and Border Protection will readmit the foreign national based on the valid I-94.
The Visa Application Process
The U.S. Department of State (DOS), via U.S. Embassies and Consulates worldwide, is responsible for nonimmigrant visa (NIV) issuance, including conducting interviews, adjudicating certain types of nonimmigrant petitions, and stamping visa foils into foreign passports, as well as determining policies and processes for visa issuance. The DOS’ Foreign Affairs Manual (FAM) describes the general authority and procedure for nonimmigrant visa issuance, with each U.S. Embassy and Consulate also authorized to exercise discretion over NIV processing operations in accordance with the FAM’s guidelines.
Per the FAM, a foreign national is always eligible to apply for a nonimmigrant visa in the foreign national’s country of citizenship or residence outside the United States. A foreign national may also be eligible to apply for a nonimmigrant visa as a “Third Country National” at the Embassy or Consulate in another country, at the Embassy or Consulate’s discretion. Visa stamping services are not available within the United States at this time, though DOS has indicated this option is under consideration.
To begin the visa application process, a foreign national must complete the Online Nonimmigrant Visa Application (Form DS-160) to submit their information to a specific Embassy or Consulate for processing. Next steps will vary depending on the facts surrounding the nonimmigrant visa application.
Nonimmigrant Visa Interview Waivers
The FAM establishes that nonimmigrant visa applicants between the ages of 14 and 79 must undergo a consular interview unless a specific exception allows the interview to be waived. As a general rule, these exceptions most commonly include:
- A foreign national renewing a nonimmigrant visa in the same category when the foreign national’s prior visa is either unexpired or expired within the last 48 months.
- A foreign national applying for an H-1B, non-blanket L-1, O, P, Q, F, M, or academic J visa when the foreign national has previously been issued a nonimmigrant visa in any category, has never been refused a visa (unless the refusal was overcome or waived), and has no derogatory information or indication of potential visa misuse or ineligibility.
- A foreign national applying for a first-time H-1B, non-blanket L-1, O, P, Q, F, M, or academic J visa who is a citizen or national of a Visa Waiver Program country, who has no prior ESTA denials, who has previously traveled to the United States using ESTA, has never been refused a visa (unless the refusal was overcome or waived), and has no derogatory information or indication of potential visa misuse or ineligibility.
Importantly, these exceptions include expanded eligibility criteria introduced during the COVID-19 pandemic. These expansions of the visa interview waiver criteria may expire on December 31, 2022, unless expressly extended by DOS. DOS has confirmed that they are currently coordinating with the U.S. Department of Homeland Security on an extension of these Interview Waiver provisions through the end of FY 2023 and potentially beyond.
DOS estimates that around 30% of nonimmigrant visa applicants may qualify for an interview waiver and encourages Embassies and Consulates to adopt interview waiver procedures to allow more efficient visa issuance. Eligibility for a visa interview waiver is subject to consular discretion, and apparent eligibility does not entitle a visa applicant to have the interview waived. Consular officers maintain discretion over this process and have the authority to require a nonimmigrant visa applicant to attend an interview, even if the visa applicant is initially invited to renew by mail or document drop-off. Some Embassies and Consulates may also decline to offer interview waivers in any category. Upon completing the DS-160 nonimmigrant visa application, a foreign national who qualifies for a waiver of the nonimmigrant visa interview should be directed to schedule a document drop off appointment or receive other instructions for visa processing. Foreign nationals applying for nonimmigrant visas can also contact the Embassy or Consulate directly with questions about visa interview waiver availability and processing.
Tracking Visa Appointment Availability
DOS publishes Visa Appointment Wait Times for each Embassy and Consulate. As of November 4, 2022, DOS includes estimated wait times for nonimmigrant visa applications requiring interviews and for interview waiver nonimmigrant visa applications across categories, as follows:
DOS has also indicated that it is interested in creating a tool on the Visa Wait Times page to confirm which posts accept Third Country National nonimmigrant visa applications, but no such function is available for now.
Based on recent activity, we understand that appointment availability at Embassies and Consulates worldwide still varies widely, with many posts experiencing long delays. In an October 2022 public engagement session, DOS stated that it has instructed all Embassies and Consular to take applicants from outside of their consular district, including Third Country Nationals, though implementation of this instruction is at each post’s discretion.
Actual appointment availability, including the availability of Third Country National nonimmigrant visa processing, is only accessible once a foreign national visa applicant submits Form DS-160 and pays the related fees. Once a foreign national schedules a visa appointment, they are able to log into the scheduling system to check for earlier appointment availability. Many applicants are successful when checking appointment availability late at night or early in the morning.
Updated Reciprocity Lengthens Visa Validity for Mexican Citizens
Visa stamp validity is based on reciprocity between countries, generally related what that country offers to U.S. citizens applying for the same sort of visa. In most employment-based categories, visa length corresponds to the validity of the underlying nonimmigrant petition approval. However, in some cases, a visa stamp’s validity may be longer or shorter than the petition approval, depending on the Reciprocity Schedule.
Until this year, nonimmigrant employment-based visa validity was a challenge for Mexican citizens in particular. Specifically, Mexican citizens applying for H-1B, TN, and L-1 stamps could only receive a visa stamp valid for up to one year at a time, regardless of the length of their underlying petition approval. This often led to erroneously shortened I-94 records and to international travel complications. Now, DOS has updated visa reciprocity for Mexico, allowing Mexican citizens to apply for visa stamps valid for longer duration, including a 3-year option for H-1B/H-4 stamps and a 4-year option TN/TD and L-1/L-2 stamps. These stamps require payment of a significantly higher fee than the 1-year stamp. In all cases, the Embassy or Consulate may truncate the visa validity to match a petition end date, so you should check with your employer and your attorney to determine the best option in your case.
Tips for Successful Visa Nonimmigrant Visa Processing
All nonimmigrant visa applicants should be sure to check the website of the specific Embassy or Consulate where they will apply for details on interview processes, interview waiver eligibility, and required documents. Additionally, applicants should contact the Embassy or Consulate directly with specific visa application processing questions.
Because appointment availability varies considerably, foreign nationals planning international travel in the coming months should be sure to schedule an appointment before departing the United States. Further, foreign nationals should be prepared for delays, including USCIS delay in providing confirmation of petition approvals to DOS, as well as administrative processing delays.
If you are planning any international travel or have any questions about visa processing options in your case, contact your Parker Gallini attorney for specific advice well before leaving the U.S.