As the holiday season approaches, many are making plans for travel over the next couple of months. For holders of nonimmigrant visas however, international travel can be risky – employment-based visa processing at consulates remains under heightened scrutiny since last year’s Buy American, Hire American executive order. The rate of visa denials and 221g issuance has increased and reports continue of intensified questioning by CBP officers at ports of entry. Nonimmigrant visa holders considering international travel should therefore consult with their immigration attorney well in advance of making firm plans, in order to assess their particular situation, determine the risks involved, and ensure they are prepared with the necessary documentation prior to departure. Some key factors to consider include:
Do I need to apply for a visa at a consulate before returning?
Whether a visa application at the consulate is required may be the most significant factor in determining whether to travel, since denial or 221g issuance at the consulate can result in inability to re-enter the U.S. indefinitely. In most cases, you will need a valid, unexpired visa stamp in your passport in the visa class in which you intend to re-enter the U.S. (a notable exception is automatic revalidation, discussed here). For F-1 students who have recently changed status to H-1B in the U.S., for example, this means you will need to apply for the H-1B visa at a consulate prior to returning to the U.S. For H-1B beneficiaries, an unexpired H-1B visa may still be used, even if your current employer is not the petitioner listed on the visa stamp.
Is an amendment petition required?
This should be discussed with an immigration attorney who can review your most recently approved I-129 petition and evaluate whether your current employment terms have “materially changed” enough to require an amendment. If so, the amendment petition will need to be filed and approved by USCIS prior to attending the consular interview, meaning your trip may need to be postponed for several weeks or months (due to the current H-1B premium processing suspension). It is important to note that there are cases in which the consulate may expect an amended petition, even if USCIS does not – in consulting arrangements, for example, the consulate expects to see that the petition reflects the current version of the succession of contracts, even if there has not been a change in work location to a new MSA.
If a visa application at the consulate is required, what documents are needed for the interview?
These will vary depending on the particular application type, but in general, employment-based visa applicants should carry the original I-797 Approval Notice, a copy of the complete I-129 petition, and a letter confirming their employment from the petitioner, with an original signature, as well as their education credentials and pay records.
In particular, applicants who are assigned to a third-party work location will need recently-dated letters from the end-client and all vendors, as well as the relevant contracts and work orders governing the assignment. Absent these, the likelihood of visa denial is very high, and visa holders are strongly cautioned against travel if these documents are not available.
Beyond documents, the most important factor for a successful visa appointment will be your interview answers – applicants should be thoroughly familiar with their visa petition and be able to answer clearly and concisely.
What documents are needed for re-entry?
At the port of entry, employment-based visa holders will need to present a valid visa stamp, the original I-797 Approval Notice (if applicable), and a recently-dated employment verification letter from the petitioner. Importantly, the I-797 Approval Notice presented should be the approval notice for your current petitioner, not a previous employer. Presenting the incorrect approval notice can result in inconsistency between your I-94 and visa petition end-dates.
Dependent family members, such as H-4 or L-2 applicants, should present the principal applicant’s original I-797 Approval Notice as well – while copies of the approval notice were previously accepted, CBP has recently been requesting originals, even for dependents. Family members who are traveling separately from the principal applicant should therefore arrange to carry the original notice, as well as a recently-dated employment verification letter of the principal applicant and marriage/birth certificates.
For everyone applying for entry as a nonimmigrant, a passport that is valid beyond the expected validity period is also important. CBP will not issue an I-94 beyond an applicant’s passport expiration date, regardless of the end-date listed on the I-797 approval or visa stamp. If the applicant is not adequately advised of this at entry, they may inadvertently overstay their I-94 and end up in the U.S. out of status. The shortened I-94 can be remedied if noticed early enough, but to avoid this situation, it is advisable to obtain a renewed passport valid beyond the I-797 validity period prior to traveling.
What should I do after re-entering the U.S.?
After entering the U.S., check your I-94 Arrival/Departure record on the CBP website here. Your most recent I-94 is the document that controls your stay in the U.S., not the visa stamp or even your I-797 Approval Notice (unless the approval has the I-94 attachment), which is why it is crucial to ensure it is correct. The I-94 details are updated by CBP electronically based on your most recent entry, and you can access your record by entering your passport information on the website. You should ensure that your name, the class of admission, and validity period end-date are correct – if they are not, correction through a CBP deferred inspection office may be necessary.
While these are general guidelines, the best preparation is to confer with your immigration attorney early – initial plans may need to be postponed or even canceled depending on the steps required, and visa holders should be apprised of the risks involved. Even the most well-prepared applicants can face delays and obstacles these days in light of the Buy American Hire American policy, which consular officials have been specifically instructed to bear in mind when processing employment-based visa applications. Early preparation is key to increase the likelihood of a smooth trip and re-entry into the U.S.
By Rebecca Chen
Rebecca is a partner at Reddy & Neumann and has been with the firm since 2009. Her practice includes non-immigrant and immigrant visa petitons.