Visa stamping can be a traumatic event. Consular officers are empowered with broad discretion and the ability to inquire about any facet of an individual’s life. They make decisions that may alter a foreign national’s life within the span of a few minutes. This is why many individuals prefer to change status in the US, if possible, and forgo the visa stamping altogether.
To Stamp or not to stamp
Many individuals who are present in the United States may either extend their status or change to a different non-immigrant status. A non-immigrant status may allow them to stay in the US and/or legally work if they possess a work visa. However, if the current visa in the passport is expired or about to expire, they will need a new visa before entering into the US again. This also applies if they to travel overseas. It is important to understand that legal status and visa are two very different matters.
An individual on a Non-Immigrant Visa (i.e. F, H-1B, L, O, P,R etc.) has two choices for visa stamping:
- Go to their home country for visa stamping (preferable)
- Go to a neighboring country like Canada or Mexico (it is important to note that the US Embassy or Consulate can refuse to process your visa if you are not a resident or citizen of Canada or Mexico)
Eligibility to apply at the US Embassies in Mexico
In general, Third Country Nationals (TCNs or non-Mexican Nationals) who live in the US may be eligible to renew their visas in Mexico if they are renewing within the same category (except B1, B2 or H2) and have never been “out of status.” Proof of status can be demonstrated by showing one of the following: Form I-797, an Employment Authorization Document, Form I-94, paystubs etc. If an individual is unable to prove that he/she is “In Status” or were actually “Out of Status,” he/she will need to travel to the home country for stamping.
If you need to change any non F-1 status to H1 status, you should book a consultation with our office before you decide to go to Mexico for visa stamping.
In addition the following categories of Third Country National can apply for US visa in Mexico:
- Third Country Nationals who normally reside in a Visa Waiver Program country and who have lost or had their biometric passport stolen may apply in Mexico for a tourist (B1/B2) or transit (C) visa to return to their home country.
- Third Country Nationals who normally reside in a Non-Visa Waiver country and who have lost or had their visa stolen may apply in Mexico to renew their tourist (B1/B2) visa in order to return to their home country.
The following categories of Third Country Nationals cannot apply in Mexico:
- If an individual would like to get a visa stamped for a visitor, transit, diplomat, treaty trader, treaty investor, H1A, H2A, H2B or Q worker, he/she must apply for a visa in his/her home country if he/she is not a citizen of Mexico;
- A visa for crew member is not available at Nuevo Laredo, Mexico;
- If you have been “Out of Status” because you overstayed your visa or I-94, Departure Record validity date;
- Third Country Nationals who are not residents of Mexico and who are applying for a B1/B2 visa (including B1/B2 renewals);
- Applicants who entered the US with a visa issued in their home country and changed status with USCIS in the US who seek a new visa in a new visa category;
- Applicants who entered the US under the Visa Waiver Program;
- Applicant who obtained their current visa in a country other than that of their legal residence, and
- Citizens of North Korea, Cuba, Syria, Sudan or Iran.
Foreign nationals always run a risk and may encounter difficulties when they apply for a visa outside of their home country. Many times, a visa may be denied because the consular officer may not be familiar with the documents in the applicant’s home country, or the officer may believe that fraud indicators are present in the applicant’s file. Additionally, Consular Officers usually ask for any kind of proof that you are a Legal Resident in the Country; therefore, if you are solely in transit through the country, you wouldn’t qualify to apply for a visa as a Third Country National. Some embassies require the applicant to show tax filings depending on the category of their employment, which means, that if you are not a permanent resident you wouldn’t be able to comply with required documentation and your application may end up denied.
It is paramount to weigh all potential risks before venturing outside of the country because applicants will only be able to reenter the US if they are found eligible for a new visa and actually have the visa stamped in their passport. Form I-94, Departure Record (even if valid), accompanied by previous expired visas, will no longer be valid for the automatic re-entry of persons traveling from Canada or Mexico if during their visit they applied for a new visa that has not, in fact, been issued.
Furthermore, if the application requires additional administrative processing, an individual may not be able to reenter the US until such processing is complete.
Sometimes, if the documents are not complete furnished during the interview, the Consular Officer may then refuse your visa temporarily until you are able to satisfy the requirements. If this is the case, you will receive a 221 (g) letter explaining the reason of the denial as well as what documents you must submit. This is NOT a permanent refusal; this is just a second chance that the Consular Officer is giving you.