Stephan, a national of France, graduated from college in the US last year and just completed his OPT. He was offered a position with the engineering firm where he completed his OPT and they secured an H1B visa for him. He knows that he needs to get a new visa in his passport but does not want to travel back to France at this time. He would also like to get the visa before a ski trip he is taking to Chile in July (he does not want to miss any time skiing because he has to deal with visa issues). Can he take a quick trip to Montreal, Canada to get a visa? Let’s see.
Foreign nationals, or Third Country Nationals (TCN), often prefer to travel to Canada or Mexico to apply for nonimmigrant visas because of the obvious convenience. For those who are not familiar, a ‘TCN’ for a consulate in Mexico is a person who is not a citizen of Mexico but of a third country, like India or Australia. Applying for and getting a visa at the ‘border’ posts, those U.S. consulates in Canada and Mexico that are near the U.S. border, is more convenient for a foreign national than having to travel back to their home country; it saves time and money. Sometimes TCN is seeking a visa stamp for a new visa category (in change of status cases) and other times the trip is to obtain a new visa stamp to replace one that has expired in the passport.
Who can be issued a Visa at a Border Post
Foreign nationals who have never been ‘out of status’ in the U.S. and have not overstayed their I-94 are eligible to apply for a visa at a border post. In other words, if you have remained in the U.S. longer than the period authorized by the immigration officer when you entered the U.S., you must apply for a visa in your home country. As of April1 2002, the Border Posts no longer accept visa applications from nationals of the seven countries currently designated as state sponsors of terrorism. Additionally, none of the Border Posts accept applications for E visas from TCNs who are not resident in their consular districts.
How to Apply for a Third Country Visa at a Border Post
To apply for a third country at a Border Post, you must make an appointment for an interview by telephone or by Internet.
Before your appointment is scheduled, you will complete an online application Form DS-160 for the post where you will be applying.When seeking TCN processing, you should be aware that as a TCN you may be more likely to encounter difficulties at the time of interview. Consular officers at Border Posts will deny visas whenever they believe there are fraud indicators present, or their lack of knowledge of local conditions and/or familiarity with documents in the TCN applicant’s home country prevents them from properly adjudicating the case. In such cases the TCN will be advised to apply for their visa in their home country.
Exclusion from Automatic Revalidation of a Visa
In an attempt to enhance border security, and ensure that only foreign nationals eligible to enter the U.S. are allowed entry, effective April 1, 2002, foreign nationals who have applied for and been refused a visa while outside the U.S. are prohibited from returning to the U.S., even if they are in possession of a valid I-94. The previous regulation allowed foreign nationals whose visas had expired but their I-94 remained valid to re-enter the U.S. without obtaining a new visa. This change in the regulations means that in the case where a TCN is denied a visa at a Border Post, the TCN must return to their home country to get a visa before they can re-enter the U.S.
Ok, time to check back on Stephan. Stephan needs to obtain an H1B visa. He changed his status in the US from F1 to H1B. However he is from a relatively low fraud country and will be applying for his visa at a post where French is the second language. His chances of success are relatively good, but he needs to be aware that the consular officer has complete discretion on whether to issue a visa to a TCN. If the consular officer denies his visa application Stephan will have to travel from Canada to France, incurring extra time and expense, to get a visa before he can return to the US.
It is essential for foreign nationals to understand the risks that are now involved in applying for a U.S. visa in Canada or Mexico. If the visa application is approved, there is no problem.
However, if the visa is denied, you cannot return to the U.S. until you have obtained a new visa in your home country! Generally, the most successful visa applications are those from individuals who are applying for a visa in a category for which they have been previously issued a visa, however, the risks have certainly increased in the recent past.
If you have questions about filing for third country national visa at the border, Contact a VisaPro Immigration Attorney. We will be happy to assist you.
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