DO YOU NEED to get a visa? Do you want to avoid going all the way back to your home country? If so, third country visa processing may be good option.
A visa is a document that a person wishing to enter the United States applies for at a consulate or embassy abroad. Unless you are coming to visit the United States for up to 90 days on the visa waiver program available to citizens of certain countries, you will need a visa to enter the United States. The visa allows a person to come to a port of entry in the United States and apply for admission. Having a visa does not guarantee that the person will be allowed to enter but it shows the Customs and Border Patrol officer at the port of entry that the visa holder has been prescreened abroad and found eligible for admission in a particular nonimmigrant category. A visa is only valid for admission in the category for which it is issued. This means that if you were granted a B-1 tourist visa, you cannot use it to enter the US for the purpose of working or going to college. Remember, having a nonimmigrant status is not the same thing as having a visa. For example, you can apply for and be granted H-1B status by the United States Citizenship and Immigration Service (USCIS) but this does not mean that you have an H-1B visa. To get an H-1B visa, you must go to a US embassy or consulate abroad and apply for it.
Generally, the visa process requires that you apply at the consulate or embassy in your home country. However, for certain people, it is possible to do third country processing which means you can apply for the visa in a country other than your home country. This can save a lot of time and money if your home country is far away.
Often, third country processing is done in the context of a renewal visa at a US consulate or embassy in Canada or Mexico. An individual can generally renew their visa in Mexico or Canada in any category except B1/B2 (tourist/business). A renewal is a case where an application for the same type of visa is made and does not include those who need to change from one visa category to another or who are seeking any other type of “change of status” even if that change has been authorized by USCIS. As of January 2014, the embassy in the Bahamas is also accepting third country national applicants for visa renewals in certain categories but only if the initial visa was obtained in the applicant’s home country.
Others that may take advantage of third country processing include those who are already residing in a country other than their home country and seek a visa to enter the US. For example, you might be a Brazilian national attending college in England and want to come to the United States for vacation. Because Brazil is not part of the visa waiver program that person would need a tourist visa to come to the United States. Under the traditional rules, this person would have to go all the way back to Brazil to get a visa to come to the United States. However, the United Kingdom allows for certain third country nationals to apply for US visas, thus saving this Brazilian national from having to go back to Brazil to apply for the visa.
Any time a person applies for a visa at a consulate or embassy outside of their home country, there is a risk of denial in which case you’ll be required to return to your home country to get the visa. This can in the end, cost even more time and money than if you had gone home from the beginning. Also as a general rule, if you were already in the United States and out-of-status or you otherwise violated the terms of your visa, you cannot apply for a visa in a third country; you will need to return to your home country of nationality. Each consulate and embassy has different rules and these rules can change from time to time so make sure you meet the requirements for a specific consulate or embassy before making travel plans.
Once you are granted the visa in a third country, you can now go to a US port of entry to seek admission. Remember that a visa does not guarantee entry into the US, you will still need to be found admissible by a Customs and Border Patrol officer. Once admitted, be mindful about the length of time you are allowed to stay in the United States. Just because you have a visa that is good for five years, doesn’t mean that you can stay in the country for that long. The duration of your stay is determined at the time you enter the United States and will be noted in your passport. You can also go online to the Customs and Border Patrol website and retrieve your I-94 (the arrival/departure record) which indicates how long you can stay in the country. If you stay in the United States for longer that the authorized stay, you will begin to accrue unlawful presence which can bar you from future entry into the country or prevent you from getting future immigration benefits.
The above article is provided for informational purposes only and should not be considered legal advice. Please consult your immigration attorney to discuss the specifics of your own case. I can be reached at (619) 235-5400 or through my web page at www.urelaw.com.
This article was first published in May 2014
