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Since the "Buy American, Hire American" Executive Order that was issued in April 2017 and the Department of State announcement instituting "extreme vetting" in May 2017, we have been seeing an increased number of individuals being selected for Administrative Processing, or 221(g), by U.S. Consulates abroad when applying for new U.S. visas.
Administrative Processing involves conducting background checks on visa applicants for various reasons. When selected for administrative processing, the visa application process at a U.S. Consulate abroad, which typically takes about 1 week, can result in delays of several weeks or even months during which the individual has no way of returning to the U.S. or resuming his/ her employment.
In the past, Administrative Processing was mainly reserved for the following:
- Applicants who were Muslim or from Muslim countries.
- Applicants with degrees in Aerospace or Nuclear Engineering or Materials Science.
- An applicant with a name similar to one on a watch list.
This is no longer the case. U.S. Consulates abroad have been selecting an increased number of applicants for administrative processing for no apparent reason. This has resulted in some visa applicants being stranded outside of the U.S. for several months.
With the holiday season coming up, foreign nationals who plan to travel abroad should think long and hard about whether to leave the U.S. if their travel would entail an application for a new U.S. visa stamp in their passports.
Individuals who already have valid U.S. visas should be able to travel internationally with relative ease, but should ensure that they are carrying with them all the necessary documents.
H-1B employees will need to carry the following with them:
- Valid foreign passport.
- Valid H-1B visa stamp (even if it is in the name of a prior employer).
- Original I-797A (Approval Notice) for current H-1B status (naming the current employer).
- Copy of H-1B petition.
- Copies of 3-4 recent pay stubs (evidencing on-going employment with the current H-1B employer).
- An up-to-date letter of employment confirmation from the employer and an up-to-date letter from the end-client site should not be necessary.
F-1 students will need to carry the following with them:
- Valid foreign passport.
- Valid F-1 visa stamp (even if it is in the name of a prior university).
- I-20 endorsed for travel, listing the current employer and issued within 6 mo. of the proposed date of return to the U.S.
- Current EAD card (if the student is under OPT - Optional Practical Training).
- Copies of 3-4 recent pay stubs (evidencing maintenance of status through employment with the company listed on the I-20).
L-1 employees will need to carry the following with them:
- Valid foreign passport.
- Valid L-1 visa stamp in the name of the current employer.
- Copy of I-129S endorsed by a U.S. Consulate abroad (for Blanket L petitions) or original I-797A Approval Notice (for individual L-1 petitions).
- Copy of the L-1 petition (for individual L-1 petitions only).
- Copies of 3-4 recent pay stubs.
TN employees will need to carry the following with them:
- Valid foreign passport.
- Valid TN-2 visa stamp (for Mexican citizens only).
- Current I-94 card showing TN status (or printout of I-94 from www.cbp.gov/I94 if issued an electronic I-94).
- Copies of 3-4 recent pay stubs.
Dependent family members (those in H-4, F-2, L-2, TD status, etc.) should only need to carry their valid foreign passports and valid dependent visa stamps (even if the visa indicates a former employer or university for the principal beneficiary).
Individuals who have a pending I-485 application and have been issued an Advance Parole document (I-512 or EAD/AP combo card) just need to carry that document in order to return to the U.S.
If you have an employee in a nonimmigrant status not listed above who plans to travel internationally, please have them contact me and I will advise them regarding the documents to carry while traveling abroad.
This immigration alert is only being provided to company representatives, but I encourage you to share it with your foreign national workforce and to impress upon them the risk of travel outside of the U.S. if they will need to apply for a U.S. visa while they are abroad.
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