Applying For Third Country National Visa At Border

What Are The Risks Involved?

Introduction

Foreign nationals who wish to come to the U.S. to work or study must first obtain a visa to enter the country. For those who are already in the U.S. in nonimmigrant status, they must obtain a visa when they travel, or in some circumstances, must obtain a visa before they can begin working or start school.

However, circumstances will sometimes require these individuals to get a visa when they are unable to obtain a visa at the US Consulate in their home country. One of most commonly used solutions is to obtain the visa at a US Consulate along the US border (specifically in Canada or Mexico) as a “Third Country National” or TCN.

A TCN is someone who is seeking a US visa in a country which they are not a resident or citizen of. It’s important to remember, however, that there are risks involved in trying to obtain a visa a US border consulate or embassy as a TCN. Furthermore, the consulates in both Canada and Mexico have placed specific limits on which TCN’s may apply to obtain a visa there.

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Who May NOT Apply For A Visa At A Border US Consulate?

  1. TCN’S who been ‘out of status’ in the U.S. or have overstayed their I-94 are not eligible to apply for a visa at a border consulate. 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.
  2. US border consulates will not accept visa applications from nationals of the six countries currently designated as state sponsors of terrorism.
  3. US Consulates will generally not accept applications for E visas unless the applicant is a resident of the country (exceptions may be made for E-3 visa applicants or E-1/E-2 applicants in limited circumstances).

Who May Apply For A Visa At A Border US Consulate?

1.US Consulates in Canada: Generally, TCN’s who reside in the US and who are renewing a visa are welcome to apply for a US visa in Canada. Also, applicants who have previously obtained an F-1 or J-1 visa at their home consulates who are now applying for an H-1B, L-1 or other type of work visa after a change of status in the U.S. or petition approval may also be eligible to apply as a TCN at a US Consulate in Canada.

It should be noted that the US Consulate may refuse to entertain or deny a visa application for those trying to renew an F-1, J-1 or any other visa where the applicant must prove that they do not have immigrant intent and/or have strong ties to their home country. Additionally, TCN’s who entered the U.S. as a visitor (B-1/B-2 or Visa Waiver) who have gone on to obtain approval from USCIS for a work-based visa petition are generally not welcome to apply for a visa at a US consulate in Canada.

2.US Consulates in Mexico: Generally, TCN’s who reside in the US and who are renewing a visa in any category except B-1/B-2 or H-2 are welcome to apply for a US visa in Mexico. Renewals can only be in the same category. This means those who have changed status in the US to another status are generally not permitted to apply for a visa as a TCN at a US Consulate in Mexico.


What Types of Risks Do TCN’s Fact At US Border Consulates?

When seeking TCN processing, you should be aware that, as a TCN, you may be more likely to encounter difficulties at the time of the interview. Examples include:

  1. Consular officers at US border consulates may deny visas whenever they believe there are fraud indicators present and it is impossible for the applicant to overcome the implications because s/he is not in their home country or in the U.S.
  2. Consular officers are more likely to deny a visa due to their lack of knowledge of local conditions and/or familiarity with documents in the TCN applicant’s home country. In such cases the TCN will be advised to apply for their visa in their home country.
  3. Applicants must remember that both US Consulates in Canada and Mexico may limit TCN applications at any time. For example, US Consulates in Canada will occasionally prioritize visa application appointment slots for residents of Canada or temporarily suspend TCN processing altogether during peak visa applications periods like the summer. TCN’s must be careful to plan well in advance if they plan on seeking a visa at a US border consulate.

Applicants who are denied a visa in Canada or Mexico are oftentimes required to return to their home country to obtain the visa if they don’t already have a valid visa in their passport to enter the U.S. (see below for information about the Exclusion from Automatic Visa Revalidation). This can cause significant hardships for visa applicants, any family they have in the U.S. and for the US employer (if applicable).


How To Apply For A Third Country Visa At A Border Post

The application process to obtain the visa is generally the same for TCN’s and residents of the respective countries. After determining eligibility, TCN’s who wish to apply a US border consulate or embassy must first make an appointment for an interview, preferably online. Consular appointments in Canada must be made at http://canada.usvisa-info.com. Consular appointments in Mexico must be made at http://mexico.usvisa-info.com.

Before your appointment is scheduled, you will need to complete the online nonimmigrant visa application, Form DS-160. Once the form is completed, you may go on to schedule the appointment through the online portal. Before the interview, applicants must pay the Nonimmigrant Visa application fee (MRV).


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Exclusion From Automatic Visa Revalidation

Under Automatic Visa Revalidation (AVR), foreign nationals in the US who visit Canada or Mexico for less than 30 days are generally permitted to re-enter the US even if they do not have a valid unexpired visa as long as they have valid authorization for their current status in the U.S. (e.g., an approval notice for the I-129 with an attached I-94, a valid I-20 or DS-2019, etc.) and the person did not visit any other countries during their trip.

TCN’s who apply for a visa in Canada or Mexico are prohibited from using AVR if their visa application is pending or has been denied. TCN’s who are refused a visa in Canada or Mexico must return to their home countries to obtain a visa unless they have a valid visa to enter the U.S.


Conclusion

The ability to apply for a US visa at a US Consulate in Canada or Mexico is a convenient alternative for many TCN’s. It is essential for foreign nationals to understand, however, the risks and limitations involved with applying for a U.S. visa in Canada or Mexico.

We strongly recommend all foreign nationals who are going to apply for a visa as a TCN at a US Consulate in Canada, Mexico or any other country other their own to speak with an immigration attorney to confirm eligibility or any risks involved in your particular case.

If you have questions about filing for third country national visa at a US border consulate, contact a VisaPro Immigration Attorney. We will be happy to assist you.


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