Law Office of Bonnie Stern Wasser
—Bringing People Together—
Tips for Obtaining Visas at US Consulates Abroad
By Bonnie Stern Wasser, Esq.
© 2005
The following is intended as general information and not legal advice. It is not meant to establish an attorney/client relationship.
General Considerations
If you have been in the U.S. and need to leave to obtain a visa, once you leave the US, there is no guarantee you will be let back in. Similarly, for applicants already abroad, there is no guarantee a visa will be issued. Even if it is issued, the port of entry officer has the final say about whether to let you into the US. Keep in mind the following:
- Expect to be interviewed. Almost everyone must be interviewed, first at the US Consulate if a visa is required, and again by at least one immigration officer at the port of entry into the US. Each officer has a different personality, varying levels of knowledge of immigration law. Some officers have served at posts with high levels of fraud making them have negative views about immigrants. There is no way to predict how you will be treated. However, all officers are mandated by their headquarters to act professionally toward their constituents.
- Be prepared. Consular processing procedures can change hourly or daily. Procedures, issues of concern, security needs and local policy vary from consulate to consulate, and port to port. Make sure you have all the necessary documents. Call the consulate or check their website ahead of time or consult with your attorney well in advance. See http://travel.state.gov/travel/tips/embassies/embassies_1214.html on the links page. Also, if you are seeking a US visa in a country where you are not a citizen or normally reside, make sure that you have the appropriate visa to enter that country.
- Review of consular decisions by a court is extremely rare. In fact, some would say it is near
impossible with certain exceptions. Questions of law may be directed to the Advisory Opinion Section
of the Visa Office in Washington, D.C., but rarely are questions of fact found by a consular officer
reversed unless new facts and convincing arguments are made first at the consul level.
- Be credible. Your credibility is everything. The way you present yourself is critical:
- Be confident in your voice and demeanor.
- You must come across to the officer(s) as being credible, honest and knowledgeable about your case, especially if a relative or employer has filed papers for you in the USA. Study those papers before the interview!
- Be patient. Understand that consular and immigration officials have a very hard job to do and
everyday they are faced with zillions of people who think their case is more important than the next
person’s case. Since 9/11, all immigration officials worldwide are hyper-vigilant, security
conscious and afraid of losing their jobs if they turn out to wrongly issue a visa. Therefore, many
would prefer to deny when in doubt.
- Expect delays. Security clearance delays are very common in a post-9/11 world, especially if you work in a field
that would be on the Technology Alert List (TAL), or if you are from one of several countries known or suspected to
harbor terrorists.
Interview Tips
- BE PREPARED! Know the requirements of your visa and the limits of permissible activities. For example, tourists may
NOT work in the USA.
- Answer only the question being asked of you. Do not answer with a long story or explanation. Be concise and to the
point. If you do not know the answer to a question, say, "I don't know." Don't guess, assume, or presume what the answer
should be.
- If you do not understand the question, stop, take a breath and tell the officer you did not understand or ask that the
question be repeated or restated. If you do not understand the language, bring an interpreter, although consulates will
vary as to their policy of using interpreters.
- Be as nice as you can even if the officer is nasty, but be firm and confident in your answers.
- Don't let the officer badger you, cut you off, etc., but to combat that, do not be belligerent or hostile back. The
last thing you want to do is alienate the person that could change your life!
- If you are not happy with the way you have been treated, ask to have a supervisor and then the Chief Consul for your type of visa
review your case or hear your complaint, but be diplomatic. Again, remember, they have all the power and you have none! You are
at their mercy! Most supervisors or Chief Consuls will speak with you in the afternoons after the rush is over for visa filing
and issuance in the mornings.
- Try to remember exactly who said what to whom in case you need to consult with an attorney. Take notes if needed.
- Have all of your mandatory documents ready to present. (E.g., passport, photo, approval notice, original degrees and
diplomas.) If you bring original documents, which most Consulates prefer to see, bring along extra photocopies so that the
originals will be returned to you. Make sure foreign language documents include certified English translations.
- If you are engaged in a technical occupation, most likely the officer will not understand or appreciate what you do. Be
prepared to describe your job duties in layman's terms. Be prepared to talk about the company that is sponsoring you: how many
employees they have, what they do, types of clients, reputation, etc. Bring along marketing materials or other information
which indicates the credibility of the sponsoring organization.
- MOST IMPORTANTLY, BE HONEST. If there are problem facts in your case, it is better to deal with them and be honest about
it rather than lie or make up evidence or facts. Think of various ways to say the same thing so long as it is truthful.
Don’t forget that misrepresentation of a material fact, whether in writing or orally, is grounds for exclusion and/or
deportation. The penalty is worse than having a prior overstay or having worked illegally.
- When your visa is issued, say “thank you”.
If Your Visa is Not Granted or is Denied:
- Get the name of the officer(s) who dealt with you.
- Ask to see the supervisor and/or Chief Consular officer OR call your attorney.
- Ask what else you could submit that would satisfy the consul.
- Take notes about who said what to whom. Be very specific.
- Ask for a written decision (Form DS194 should be detailed.)
- Ask if the consul would be willing to set you up for an after hours interview (usually in the afternoons, later in the week) after the crush is over and someone can spend more time with you.
Don't forget: in most cases, even though there is no specific right to appeal, you can ask for reconsideration or reapply if you have additional information to present that would address the issues of concern to the consul.
Note that, if your application is denied, most consulates put a little stamp in the back of your passport that says "application received." That is a code for what probably happened: "application denied". Therefore, if you consulate-shop, other consulates will probe more deeply into your situation or may refer you back to the original consulate. The notation is not necessarily a bar to obtaining a visa at a later time.
Where to Apply for a Visa
The general rule is that visa applicants must apply in the consular district where they reside or work. To seek a visa outside the district, let alone in another country, requires proof of a legitimate business or other personal reason for being in that district. Whether that post will take your case, is purely discretionary and is based on 1) that post's workload, 2) whether you are from a high-fraud rate country, 3) whether you have established sufficient ties to your home country, 4) if you are seeking a nonimmigrant visa requiring proof of a permanent home in your country, or 5) whether you have the right to be in the third country, if seeking a permanent residence visa. There are specific rules about "third party nationals" applying for visas in Mexico or Canada. There are certain designated posts that have been assigned to accept applicants from countries where the US does not maintain a post. These posts change from time to time. Special rules apply to persons who have previously overstayed an authorized stay on an I94 arrival document. For more information, see http://www.travel.state.gov.
Right to Counsel
This is a controversial subject between lawyers' groups and the State Department. Technically, an applicant for a visa is outside the US, and is thus, not guaranteed the same rights as someone in the US. Consular post policies vary, however. Some allow attorneys to be present at the window at the interview, while other posts prohibit attorneys from even entering the building. Some posts have policies that fall somewhere in-between the two extremes. Policies can change overnight with changes in personnel. Whether you need an attorney to accompany you to a post is really a matter of 1) whether the post will allow attorneys to be present, 2) the complexity of issues in your case, if any, 3) your own comfort level, and 4) the size of your pocketbook needed to pay for your attorney's time and travel expenses.
State Department v. DHS
Some visas require preliminary approval of a visa “petition” in the US by the Department of Homeland Security/Citizenship and Immigration Services (DHS/CIS). If the applicant is outside the US, the approved petition is brought or cabled to a US consulate when applying for a visa. The fact that the CIS has approved the underlying visa petition is no guarantee that a visa will issue. If, after the interview, the consular official believes there may be fraud or the applicant is not truly qualified, the visa may be denied or an investigation commenced. Consular officials are technically not supposed to re-adjudicate CIS approved petitions unless they have some reason to believe the applicant is not qualified.
In sum, the primary consular tips to learn from this discussion are: 1) be prepared; 2) be truthful; and 3) there are no guarantees.
