Visa Basics
Nonimmigrant vs. Immigrant
In most types of nonimmigrant visa petition cases, immigration documents can only be submitted to the government by a petitioning-employer on behalf of an employee-beneficiary.
Nonimmigrant visas are for temporary residence in the U.S., whereas immigrant visas provide for permanent residence. Many nonimmigrant visa categories require that the foreign national demonstrate nonimmigrant intent, i.e., proof that they have a residence in a foreign country which they have no intention of abandoning. Other nonimmigrant visa categories permit dual intent, i.e., intent to either reside temporarily or permanently in the U.S.
USCIS vs. Consulates
U.S. Consulates have the authority to issue visas for foreign nationals to travel to the U.S. However, some visa classifications require that U.S. Citizenship and Immigration Services (USCIS) grant an underlying visa petition before U.S. Consulates may even consider issuing the visa. Since such petition-based visas require authorization of both USCIS and a U.S. Consulate, they are typically more time consuming than visa applications before U.S. Consulates that do not require an underlying USCIS-approved visa petition.
A few other visa categories, including the J exchange visitor and the F student visa classification, do not require an approved USCIS petition, but instead require certification from a Department of State (DOS) designated exchange program or USCIS authorized educational institution program, respectively.
While a foreign national is in the U.S., USCIS has the authority to extend the foreign national’s stay or to change the foreign national from one visa status to another. USCIS is not required to consult U.S. Consulates to adjudicate such extension of status or change of status petitions. However, a foreign national benefiting from an extension or change of status must ensure that he/she has a proper visa issued by a U.S. Consulate to return to the U.S. from foreign travel.
Processing Times
U.S. Consulates’ visa processing times vary, depending on which U.S. Consulate is processing the visa application, and what type of visa is being requested. Consulates typically take at least one week to process most nonimmigrant visas and at least two months to process immigrant visas. All types of visa processing are subject to significant background check delays, which may also include high-level background checks on foreign nationals with criminal histories, targeted nationalities, and/or skills sensitive to security concerns.
USCIS’s visa petition processing times vary significantly, depending on which USCIS Office is adjudicating the petition, and what type of visa is being requested. USCIS is divided into the western, eastern, northern and southern Service Centers, with a National Benefits Center in Missouri for family-based immigration benefits. Each Service Center has a Premium Processing Unit, which, for an additional $1,000 USCIS filing fee, guarantees a decision on certain types of nonimmigrant visa petitions within 15 calendar days of filing. Unfortunately, Premium Processing is available for only limited types of nonimmigrant visa petitions.
Dual Representation
In employment-based immigration cases, the attorney represents both the petitioning-employer and the employee-beneficiary. Attorneys are permitted to represent two parties simultaneously, if so authorized, unless their interest conflicts. In most types of nonimmigrant visa petition cases, immigration documents can only be submitted to the government by a petitioning-employer on behalf of an employee-beneficiary. Therefore, attorneys must be authorized by the petitioning employer before filing a visa petition on the petitioner-employer’s behalf, which, if approved, will establish the employee-beneficiary’s eligibility for a particular visa classification. Representing two parties simultaneously in one matter also requires an attorney to disclose information to and remain equally loyal to both parties. Under those rare occasions when a conflict of interest develops between a petitioning-employer and the employee-beneficiary, the attorney cannot take sides regardless of which party pays the attorney fees, and the attorney must withdraw from representing both parties unless one party consents to the attorney’s continued representation of the other party. If you have any questions about these issues, please call Maggio Kattar. We look forward to being of service to you.