What Does the End of Visa Revalidation Mean for Me?

Many have heard rumors and read the news about the State Department putting an end to visa revalidation on July 16, 2004. This news has many employment-based nonimmigrants and their U.S. employers concerned about the consequences of the new policy. Rumors are floating around that the end of revalidation means that anyone wishing to extend their H, L, or other nonimmigrant status has to go overseas to do so. THIS IS NOT TRUE, and stems from a misunderstanding of the difference between a “visa” and “status.”

A Nonimmigrant Visa is Not the Same Thing as Nonimmigrant Status

There is a difference between a person’s nonimmigrant status in the U.S. and a nonimmigrant visa. Status is conferred by USCIS or CBP (former INS) and allows a person to be legally present in the U.S. A visa, on the other hand, is issued by the Department of State, usually through a U.S. Consulate in a foreign country. A visa is nothing more than a ticket in the door to the U.S.; it allows a person who has been granted status to literally enter the U.S.

With certain exceptions, a person seeking initial entry to the U.S. for employment would first have the potential U.S. employer file a petition by mail with USCIS. Once the petition for nonimmigrant status is approved, the nonimmigrant is authorized to enter the United States and take up status. The person is considered “in status” upon entry to the U.S.

In order to enter the United States, however, natives of all countries except for Canada are required to first obtain a visa from a U.S. Consulate in his or her country of residence2. For most nonimmigrant statuses, with the exclusion of E status and L-1 Blanket status, a visa cannot be issued until USCIS has first approved the petition for status in the U.S.

Canadian citizens can apply for TN, L-1 or R-1 nonimmigrant status at a land or air port of entry and are not required to obtain a visa to enter the U.S. In addition, E, R, and Blanket L-1 beneficiaries can apply for nonimmigrant visas at a consulate without ever having filed a petition with USCIS by mail in the United States.

Participants in the Visa Waiver Program are also exempt from the visa requirement. Information about the Visa Waiver Program is available at http://travel.state.gov/visa/tempvisitors_novisa_waiver.html.

Once a visa has been issued, the visa holder may enter the United States and take up his or her nonimmigrant status. The visa holder may remain in the United States as long as he or she maintains status with USCIS. This requires that prior to the expiration of his or her current status, his/her employer files a petition for extension of stay with USCIS. As long as the alien’s status is maintained with USCIS, there is no requirement that the alien keep a valid visa in his passport. A visa is only required if the alien wishes to travel outside the United States and be readmitted as a nonimmigrant.

What Was the Visa Revalidation Program?

The Visa Revalidation Program provided mail-in visa renewal services for the following individuals:

(1) Those who had previously been admitted to the United States in E, H, I, L, O, or P nonimmigrant status;

(2) Who were previously issued a visa (not a change of status) of the same category;

(3) Were present in the United States;

(4) Had been issued a new I-797 Approval Notice for extension of nonimmigrant status from USCIS; and

(5) Were within 60 days of their current visa expiring, or the old visa had expired less than a year ago.

It allowed aliens who had extended status by mail in the U.S. to mail their passports to the Visa Revalidation Unit for a new visa stamp. It took approximately 10-12 weeks to obtain the new visa, which meant the aliens were without their passports for that period of time and could not travel. The advantage of mail-in visa revalidation was that aliens could obtain new visas without having to travel to their home country or undergo a consular interview in order to be issued a new visa stamp.

Why Did the Visa Revalidation Program End?

In 2002, Congress passed the Enhanced Border Security and Visa Entry Reform Act mandating that no later than October 26, 2004, the Department of State take biometric identifiers from all nonimmigrant visa applicants. In response to this requirement, U.S. Consulates now all require that all visa applicants undergo a personal interview. However, the State Department finds it unfeasible to conduct personal interviews or otherwise collect biometric identifiers from visa revalidation applicants in the United States. Therefore, it put an end to the Visa Revalidation program on July 16, 2004. Any visa applications received by the Revalidation Unit after that date will be returned to the applicant.

What Does the End of the Program Mean for Me?

The end of the revalidation program means that all visa applicants must apply for new visas at a U.S. Consulate abroad. Consulates in Mexico and Canada accept visa renewal applications from citizens of other countries in most cases3. However, if citizens of other countries apply for U.S. visas in Canada or Mexico and are denied, then they will not be readmitted to the U.S. until they first return to their country of residence abroad and obtain a nonimmigrant visa.

Keep in mind that if you do not need or want to travel outside of the United States, you are not required to renew your visa after entering the United States. You are only required to renew your status by mail with USCIS.

The end of the Visa Revalidation program does NOT mean that you have to travel abroad to renew your H, L, O, E, I, or P nonimmigrant status. You can still extend your status by mail through USCIS.

Department of Homeland Security Extends Deadline for Trade NAFTA (TN) Healthcare Workers Required to Obtain Visa Screen Certificates

In July 2003, the Department of Homeland Security issued regulations requiring all nonimmigrant healthcare workers to obtain a Visa Screen Certificate (or health care certificate) in order to enter the U.S. or obtain an extension of their current nonimmigrant status. The regulations provided a one year grace period during which health care workers could continue to be admitted to the U.S. without the Visa Screen. The one year grace period expires next Monday, July 26, 2004. Under the regulations, no nonimmigrant health care workers were to be admitted to the U.S. without the Visa Screen. For a discussion of the initial regulation, visit our website at: http://www.usvisahelp.com/nw/Volume%202,%20Issue%209.pdf.

However, the Department of Homeland Security published a new regulation extending the deadline by which certain TN status holders from Canada and Mexico must obtain their certification. The rule applies only to health care workers who held TN (or TC, “Trade Canada”) status prior to September 23, 2003 and who held valid licenses from a United States jurisdiction. These individuals may apply for an extension of their current status, or apply for readmission in TN status at a land or air port of entry up until July 26, 2005.

USCIS Processing I-130 Petitions as Visa Numbers Become Available

Filing an I-130 petition is the first step in helping a relative immigrate to the United States. However, eligible family members must wait until there is a visa number available before they can apply for an immigrant visa or adjustment of status to lawful permanent resident. Visa availability dates are online at www.state.gov/travel.

The Consulates in Canada and Mexico will not generally accept third country national visa applications from aliens who have a criminal record. They are not permitted to accept applications from citizens of countries considered to be “state sponsors of terrorism,” currently North Korea, Cuba, Syria, Sudan, Iran, Iraq and Libya.

USCIS issued a public notice on July 15, 2004 stating that they will not approve I-130 petitions until a visa number becomes available. This will not delay the ability of relatives to apply for an immigrant visa or adjustment of status, since those individuals have to wait for both the I-130 to be approved and for a visa number to become available before applying for permanent residence. Rather, the new policy will allow USCIS to concentrate resources first on cases where visas are already available.

USCIS Will Issue Replacement Documentation Acknowledging Sex Reassignment

In January 2004, Secretary Tom Ridge of the Department of Homeland Security signed a memo adopting a new USCIS policy with regard to recognition of sex reassignment. The memo was written in response to a finding that local USCIS offices have not given uniform treatment to individuals who were born one gender and changed to the other. The new policy is that USCIS will issue replacement documentation such as I-551 Permanent Resident cards to aliens who have undergone sex reassignment; but will not recognize sex reassignment for the purposes of obtaining any immigration status based on marriage.

USCIS Sends Approved I-129s to Kentucky Consular Center Rather than to Consular Posts

Upon approval of an I-129 petition for nonimmigrant status such as H or L, applicants may opt to have a copy of the petition transmitted directly to the U.S. Consulate abroad at which the beneficiary will apply for a nonimmigrant visa. In the past, if consular notification has been requested, USCIS has sent a hard copy of the petition directly to the consular post. As of July 6, 2004, however, USCIS has started sending all approved I- 129 petitions to the Kentucky Consular Center, which will then e-mail electronic copies of the petitions to U.S. Consular Posts abroad. The Kentucky Consular Center will start up a new Fraud Prevention Unit to identify any fraud indicators that posts will be able to investigate further during the visa adjudication process.

The introduction of the Kentucky Service Center into this process is likely to cause additional delays in nonimmigrant visa processing at U.S. Consulates abroad. While USCIS is using the KCC to “streamline” procedures, it adds another level of bureaucracy to the visa process, and an additional agency that is likely to get backlogged on processing.