The Advantages Of Applying For A Nonimmigrant Visa At A U.S. Consular Border Post. by Avi Freedman, Esq. 
The Department of State (DOS) ended the visa revalidation program on October 26, 2004, primarily due to the new requirement for biometric fingerprinting. Nonimmigrant (NIV) appointments at many consular posts worldwide are now severely backlogged as a result of a new policy that requires applicants between ages 14 years and 79 years to have an in-person interview. Delays in obtaining visa appointments in the applicant’s home country are likely to increase as consular resources continue to be stretched thin. Therefore, the best option for a Third Country National (TCN) is to process a NIV application at a U.S. Consulate/Embassy in Canada or Mexico.
TCN processing remains a favorable option as appointments at border posts are readily available and visas (that do not require a security clearance) are often issued the same day (or next day). Most importantly, it is often much less burdensome traveling to Canada or Mexico than one’s home country.
The Benefits Of Attorney Representation.
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 several border 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?
There are several border posts in Mexico and Canada. 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 posts in Tijuana, Nogales, Nuevo Laredo, Ciudad Juarez, and Matamoros. Each post varies in terms of their rules and policies regarding eligible visa categories, attorney representation, interpreters, and visa issuance processing time. Many border posts 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 (CIS).
Also, depending on which post is chosen, as well as your citizenship, you may also require the appropriate visa to enter Mexico or Canada. It is therefore advisable to contact the Mexican or Canadian consulate and review their respective websites for information on visa/entry requirements and application forms.
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 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. These applicants must be prepared to wait either in Canada or outside of Canada while the security checks are pending. Generally, they cannot re-enter the U.S. prior to the completion of the security clearance and the issuance of the visa. As mentioned above, the applicant must possess a proper Canadian visa to enter and remain in Canada or re-enter Canada.
When Is The Best Time To Apply For The Visa?
It is always best to apply before the current visa expiration date. Applicants should consider applying for an extension at least 60 days prior to the expiration of their current, valid multiple-entry visa. When applying for a change of status from F or J to either H, L, O, or P, applicants may enter the U.S. 10 days prior to the commencement of the start date listed on their Form I-797 Approval Notice. For “gap in the cap” cases, the applicant might obtain a visa 60 days prior to the start date but may only be admitted to the U.S. within 10 days of the start date.
The DOS recently announced that initial F & M applicants may now be issued visas up to 120 days prior to their I-20 start date. Continuing students may apply for F or M visas at any time as long as they have been maintaining student status and their SEVIS records are current. J applicants may apply for their visa at any time provided they have a valid Form DS-2019. However, a J applicant may not enter the U.S. prior to 30 days before the initial program start date. Continuing J applicants are not subject to this restriction.
Policies regarding when an applicant may apply to renew a same category visa also vary by post. By applying as far in advance as possible, the applicant may have the ability to use his or her current visa to re-enter the U.S. should the application be rejected or a security check be initiated.
What Forms And Documents Are Usually Required?
Form DS-156 - Many border posts accept and often strongly prefer or 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.
How Do You Pay The Visa Application And Reciprocity Fees?
Posts in Mexico require the visa application fee to be paid in advance at a branch of Banamex. These bank offices require the applicant’s passport number and will issue a receipt (only valid for the individual applicant) to be submitted with the NIV application. Posts in Canada usually require the applicant to pay with U.S. currency inside the consulate/embassy. Reciprocity fees in Mexico and Canada are usually paid in U.S. cash at the post after the visa has been approved (some posts also accept credit card payment for reciprocity fees).
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-6”) which includes the following six countries: Iran, Cuba, Syria, Sudan, Libya, and North Korea. Currently, if an applicant is denied a visa at a border post or is a national of “T-6”, 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 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.
What Are The Most Common Security Checks At Border Posts?
Security checks or so-called Security Advisory Opinions (SAO’s) are initiated by consular officers at NIV interviews and often are the result of "hits" based on information in the government databases. The three main security checks affecting NIV processing are:
A. The Visas Condor: The criteria of the Visas Condor are classified, but appear to be based on several factors:
1. Information disclosed on Form DS-157 (including travel to predominantly Muslim countries in the last 10 years, prior employment, military service for certain nationals, specialized skills or training)
2. Country of Birth, Citizenship, or Residence and persons born in "T-6" or "List of 26" countries will likely be subject to a Condor security check.
DOS reports that most Visas Condor clearances are completed within 15 days. The posts in Canada use an electronic method of submitting SAO’s. Presently, most “List of 26" applicants who are subject to Condor clearances in Canada are issued NIV's within approximately 10-15 business days.
B. The Visas Mantis: Otherwise known as the “sensitive technology" clearance, this security check is based on whether an applicant is involved in any of the 15 categories found on the Critical Fields List (CFL) of DOS' Technology Alert List (TAL). The TAL includes a vastly expanded list of technologies with potential "dual-use" applications of seemingly benign technologies that may have potential military applications. This list is so comprehensive that it includes almost every possible associated technology or skill involving chemistry, biochemistry, immunology, chemical engineering and pharmacology to name a few.
With such an all-inclusive list, nearly every research scientist, physician, academic and engineer involved in any of these fields could be subject to a consular post erring on the side of caution. According to DOS guidance, a Mantis clearance is generally not warranted if the technology falls within the public domain (e.g. widely available to the public, such as patented information) or if it involves information that would generally be taught in an academic course.
There has been a substantial revision and guidance regarding TAL which was issued by DOS to consular posts on October 1, 2003. Since the cable is classified, the full effects are unknown (although it appears that an increasing number of applicants are being subjected to Mantis clearances and lengthy processing delays). Visas Mantis processing times are reportedly completed within 15 business days in most cases.
Mantis clearances are now valid for 2 years for H, L , or O visas, 4 years for F/J-visas and 1 year for B visas but if there is a change in duties a new mantis can be requested While Chinese F visas may be restricted to only one year validity, the process of obtaining a re-issuance is now substantially quicker as a second mantis isn’t required if the visa application is made within the 4 year period unless there is a new course of study which may require another clearance. Clearly a transfer from law to nuclear physics would trigger a new mantis.
C. NCIC Criminal Hits: Over 8 million records from the FBI’s National Crime Information Center (NCIC) have been incorporated into the Consular Lookout and Support System (CLASS) name check database, more than doubling the records on file to 18 million. The information, which is constantly updated, contains information on terrorists and foreign warrants and also extensive records about the occurrence of criminal convictions or arrests including relatively minor offenses for DUI’s or shoplifting.
As DOS is not a “law enforcement agency”, consuls do not have access to the specifics of the arrest or conviction. Accordingly, if there is hit in the system for a prior arrest and/or conviction or a false “hit”, the consul is required to submit the applicant’s fingerprints (along with an $85 processing fee) to the FBI to request the record or to confirm that there is no record. Applicants may present certified final court dispositions, arrest records, and legal briefs at the time of the interview, but the post can not issue the visa until it has received the results back from the FBI. NCIC processing times by the FBI are averaging about 2-6 weeks.
False hits are occurring with increased regularity for those with similar names (e.g., John Smith or Juan Gonzalez) to someone with a prior arrest and/or conviction. As many as half of the names recently entered into the CLASS system are Latino, and this has resulted in an alarming number of false hits and delays for persons with common Latino names. If you have a common name or an arrest/conviction, TCN processing in Canada and Mexico may be advisable because some posts have implemented an electronic fingerprinting program. This allows the post to process clearances on false hits in the same day, while clearances for positive hits are often received in two days.
Conclusion
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 represent the applicant at the visa interview. Despite the potential risks, TCN processing in Canada and Mexico continues to be a desirable option. Most TCN posts are experienced with NIV applications, appointments are readily available and attorneys are often able to represent their clients in this complex area of practice. The good news is visas are generally issued on the same or next day as the interview.
Avi Friedman is a Senior Attorney with Wolfsdorf Associates in Los Angeles, California, and practices exclusively in the area of U.S. immigration and nationality law. Mr. Friedman is currently serving his fourth term as the Consular Affairs Liaison for the American Immigration Lawyer Association’s (AILA) Southern California Chapter. He has authored numerous immigration articles including three chapters for AILA’s “The Visa Processing Guide” and has participated as a speaker on consular visa issues at professional conferences. Mr. Friedman is listed in Southern California Super Lawyers, Rising Stars Edition. He has extensive experience with assisting applicants with interviews at U.S. consular posts worldwide with a focus on in-person attorney/client representation at U.S. border posts in Canada and Mexico. Mr. Friedman can be contacted at: afriedman@wolfsdorf.com or at 1-800-VISA-LAW.
