Foreign-Born Employees Need to Travel or Renew a Visa

When your employee prepare for visa renewals, and what possible complications to be aware of.

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If your company has employees working for you in the United States on a visa, a time may come when they let you know of plans to visit their home country or a need to renew a visa. This article will discuss the implications of travel for nonimmigrant employees, and whether to be concerned about the procedures for and risks when getting the visa renewed.

Why Nonimmigrant Employees Might Need Visa Renewal in the First Place

Within the U.S. immigration system, there are two key concepts to understand regarding temporary workers: status and visa. Immigration status refers to the person's time in the U.S. and what activities are permitted there. A visa is a stamp that the U.S. consulate or embassy abroad places in the person's passport to allow the person to apply to enter the United States.

In a common situation for employees, they have entered the U.S. some time ago on a visa that since has expired, though their status remains valid to allow them to remain in the U.S. and continue working. An employee may have a period of stay, i.e. status, for another two years, but a visa that is no longer valid.

It’s entirely permissible for the employee to renew his or her status without leaving the U.S. (For information on doing so, see “Can You Renew Your Nonimmigrant Work Visa?”.)

However, if an employee’s visa has expired, and the employee needs or wants to travel outside the U.S., then regardless of the fact that his or her status is up to date, the employee needs to get a new visa from the U.S. consulate or embassy in his or her home country during the next trip there. (Again, there’s no hurry to take that trip, provided the person’s “status” hasn’t run out yet.)

That's the easy answer. The more complex answer is that visa processing requires some planning and expectation management. While most persons obtain their visas in a few days, some applications require more time. Here are several things to consider.

Each Embassy and Consulate Follows Its Own Protocols to Some Degree

Each U.S. State Department post overseas (e.g. Embassy, Consulate, Diplomatic Mission) has a website with instructions for visa processing and links to the posts around the world.

While the process typically involves preparing an online application (Form DS-160), paying the visa application fee(s) and gathering documents, there often are procedural nuances at each post.

For example, some posts have free, online visa interview scheduling systems, while others use telephone-based systems that require payment of a fee. Be sure to check the specific post to review the requirements.

Employee May Have Choice Between Attending a Visa Interview or Renewing by Mail

Nearly every first-time applicant must appear in person for an interview when applying for a U.S. visa. In some cases, however, such as renewing the same category of visa, it may be possible to submit the application materials by mail and receive the passport with the new visa back by mail as well. The person must, however, mail the visa application from within the foreign country. It is not possible, for example, to mail the application from the U.S. to the consulate overseas and then have the consulate send the passport with the new visa back to the United States. A trip abroad is necessary.

Be sure to check the specific post's website to determine whether your employee will need to schedule and attend a visa interview. You'll also want to review the waiting time for how long it takes to obtain an appointment and to receive the passport back following the interview. You can review the times on the “Visa Wait Times for Interview Appointments and Processing” page of the State Department website.

Possible Complicating Factor: Criminal Convictions, Particularly Alcohol-Related

If your employee has ever been convicted of a crime, regardless of where or when it happened, and you know about it, you should urge the employee to consult an attorney before leaving the U.S. (or get used to the idea that you may not see your employee back anytime soon). Certain criminal convictions make persons "inadmissible" to the United States. This means that the U.S. consulate may deny the visa application, and the person will not be able to enter the United States.

The attorney will no doubt explain to your employee the importance of being honest on the visa application form and in responding to questions from the consular officer. If your employee has a conviction but does not mention it, the consular officer may deny the visa application based upon a misrepresentation, i.e. for lying. Consular officers take misrepresentations very seriously. It could be that the conviction would not make a person inadmissible but failing to provide information about it would.

Your employee will also need to obtain a complete, court-certified copy of the final case disposition before leaving the United States. It also is a good idea to have copies all related documents, such as police tickets or similar documents that explain the criminal charge(s), and relevant statutes for the crime(s) and penalties.

Finally, if there has been an alcohol-related conviction, such as Public Intoxication, Driving Under the Influence (DUI), or Operating a Vehicle under the Influence (OVI), the State Department protocols require the consular officer to refer the visa applicant to a "panel physician" (i.e. local doctor).

The physician will perform an examination to determine whether the person has an alcohol dependency problem. If the conviction was within a year, the physician will indicate that the person has not shown sufficient rehabilitation. That will lead to the consular officer denying the visa application on health-related grounds. For this reason, your employee need not bother applying for the visa until it's been more than a year since the alcohol-related conviction.

USCIS Transmittal of Petition Approval and File Through the Kentucky Consular Center

For some visa applications, including renewals, you as the employer first need to submit a petition to U.S. Citizenship and Immigration Services (USCIS) in the United States. Once UCSIS approves the petition, it sends you an approval notice (Form I-797 Notice of Action) and also forwards the file and notification of the approval to the Kentucky Consular Center for entry into the Petition Information Management System (or PIMS).

Since November 2007, PIMS has served as a means for the consular post to verify information contained in the petition and also the petition approval. In some cases, a delay occurs in information being uploaded to the PIMS system. This in turn results in a delay in issuing the visa. Once the data is in the database, the consular officer will verify the information and can issue the visa.

Because there currently is no way for an employer to do anything about a PIMS-related delay during the visa process, other than wait, the best way to avoid a possible delay is to be sure to include an extra copy of the visa petition when sending it to USCIS.

In other words, when you send your petition (usually Form I-129 and supporting documents) to USCIS, include the original and a copy of the entire packet. It's helpful to use a brightly colored cover sheet for the copy and mark it, "Copy for PIMS – Send to KCC." This will help ensure that the petition gets into PIMS and is there for when your employee applies for his or her visa.

"Administrative Processing" Delays

Administrative Processing is somewhat of a catchall term the U.S. State Departments uses to explain why a visa application remains pending for longer than what is typical for a particular post. Most posts issue visas in a few days.

Administrative Processing may refer to a delay in the employer's petition and approval being loaded into the PIMS database (see previous section), security/background check-related delays, review of prior visa applications or denials, review of criminal convictions, or simply further review and consideration of whether the person qualifies for the visa.

Sometimes Administrative Processing is completed in a few days. In other cases, it may take six months or longer. The State Department guidance requires visa applicants to wait at least 60 days before inquiring into the status of their applications. Unfortunately, it's not possible to expedite the process or obtain any meaningful information in the meantime. It's simply a waiting game.

Whether Employees Can Apply for Visas in a Third Country, i.e. Canada or Mexico

In general, it's best for your employees to apply for visas at the U.S. consulate or embassy in their home country. If they apply at a post in another country, they are considered third-country nationals. Before they think about attempting that, they need to check the post's website to review any special requirements for third-country nationals. Some posts allow it while others do not.

When applying for U.S. visas at posts in Canada and Mexico, be aware that if your employees are not citizens of Canada or Mexico, they will not be able to return to the U.S. until they have their new visas. This is true even if they're renewing a visa that has not expired. Therefore, if the visa is delayed or refused, they would need to wait in Canada or Mexico until they have the visa, or they even may need to return to their home country and obtain the visa there.

Plan Ahead and Be Flexible

The key to visa processing is planning ahead. By reviewing processing times, looking into any criminal issues, and checking local visa processing protocols, you can help your employees obtain their visas while abroad and get back to work in the United States.

Nonetheless, delays can occur, and may be out of your hands. In some situations, you'll just need to be patient and trust that your employees eventually will get their visas and be back to work. Finally, if there are criminal issues, you'll want to recommend to your employee that he or she consult an immigration attorney at his or her own expense (unless you're a particularly generous employer) to see whether it could affect the visa application.

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