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In short, a visa governs the right to be present in the U.S. for a specific period of time for a specific purpose, and is evidenced by an I-94 card either issued upon entry into the U.S. or issued later by U.S. Citizenship and Immigration Services as part of an Approval Notice. A visa stamp, on the other hand, is issued by a U.S. embassy or consulate overseas and is used to determine whether someone should be allowed into the U.S. upon request for admission. Please see our FAQ explaining the distinction between the two for a more detailed discussion of the difference.
First, let’s discuss when a new visa stamp is not necessary:
It is not necessary to renew a visa stamp as soon as an approval of an change, extension or amendment of status while in the US is received from USCIS if there is otherwise no immediate need to travel out of the U.S. The grant of a change, extension or amendment of status while here in itself “switched” nonimmigrant status, without the need for a departure and reentry to do it. If a petition or application is granted as a change, extension or amendment, a new I-94 status the new status and period of stay will be printed onto the form I-797 Approval Notice at the very bottom.
Even if a person is traveling abroad and returning on an approval notice for a new employer, a new stamp is not required if they already have an unexpired stamp of the same visa type from a previous employer. Here, the unexpired stamp and the current Form I-797 Approval Notice can be used together to reenter without the need to obtain a new stamp.
Canadians are not required to have a visa stamp in order to enter the U.S. unless they are entering in E-1/E-2 Treaty Trader/Treaty Investor Status, or as a K-1 fiancé.
Our office has worked with people who entered on an F-1 Student visa stamp valid for only three-years, completed six years of undergraduate and graduate education in the U.S. and then six years of work on an H-1B and then adjusted to permanent residence – all without ever replacing the original three-year F-1 stamp! These people simply never left the U.S. after their first F-1 entry, and so never needed to obtain a new stamp. Now that we know when it isn’t necessary to obtain a visa stamp, we turn to the three main situations where a new visa stamp is necessary. These include:
When a foreign national living abroad is approved for a visa by U.S. Citizenship and Immigration Services or gets the necessary materials to apply (such as the I-20 for the F-1 Student Visa or a DS-2019 for a J-1 Exchange Visitor Visa from a program sponsor, or even an L-1 Blanket or E-3 petition), a stamp must be obtained from the embassy or consulate. This will most often, but not always, be a situation where the foreign national is coming to the U.S. for the first time. This category also includes new spouses or entire families of foreign nationals who are already living in the US on a principal nonimmigrant visa, and need a “derivative” visa to join the principal visa holder in the US.
When a foreign national living in the U.S. in the same status as he or she first entered wishes to travel out of the U.S. and back after the most recent visa stamp has expired. For example, an individual who entered for the first time on a three-year L-1B approval had received a three-year L-1B stamp. It is now four years later and the foreign national – through his employer – has already obtained from U.S. Citizenship and Immigration Services a two-year extension of the L-1B while here, allowing this person to remain in the U.S. without departing. Now, however, the foreign national wishes to visit family abroad and will need to get a new L-1B stamp from the embassy or consulate before returning to the U.S. from this trip.
A foreign national living in the U.S. who wishes to travel abroad and back must obtain a visa stamp when he or she has entered the U.S. in one non-immigrant status and has since changed to a different non-immigrant status. The foreign national on an L-1B in the example above, for instance, could change status to an O-1 at the end of the additional two years of L-1B status and not need to get an O-1 stamp until he or she intends to travel abroad. More commonly, a foreign national who entered as an F-1 Student and then completed a degree and changed status to an H-1B will need to obtain an H-1B stamp the next time he or she travels abroad after the H-1B goes into effect.
Each foreign national applying will need the following seven items to apply for a non-immigrant visa abroad:
Original I-797 Approval Notice for this visa, or the necessary paperwork from a program sponsor (such as an I-20 for an F-1 Student Visa, or a DS-2019 for a J-1 Exchange Visitor Visa). If the foreign national is a family member of the person for whom the visa is approved, evidence of relationship to the person with the original I-797 Approval Notice is enough;
The foreign national’s passport, which must be valid for at least six months into the future;
Confirmation sheet for form DS-160 submitted online (with uploaded digital passport-style photo);
Visa Issuance Fee;
Reciprocity fee if applicable;
Copy of the package of materials filed with U.S. Citizenship and Immigration Services to apply for this visa, if applicable (Note: Even though the consulate should have access to this through the “Petition Information Management System” or “PIMS,” we’ve found that often the petition hasn’t been properly scanned in and so still send our clients with a copy); and
Any other evidence which the embassy or consulate where the foreign national is applying requires of someone in that foreign national’s circumstances.
All of these materials will need to be submitted to the embassy or consulate abroad, with fees paid as instructed by the consulate.
The foreign national will need to file the application with a U.S. embassy or consular post as instructed by the embassy or consulate web site. This typically involves going to the online visa appointment system here: https://ais.usvisa-info.com/, selecting the type of visa for which you are applying (here, “nonimmigrant”), selecting the country and creating an account. This system will guide the applicant in paying fees, creating a DS-160 form online, and setting up an appointment. Any family members applying with the principal applicant will need their own DS-160, fees and passport photos. Whether applying along with the principal visa holder or applying later in order to join the principal visa holder later on, family members will also need evidence of family relationship (marriage certificate, birth certificates). Embassies or consulates will generally return passports with the Machine-Readable Visa (“MRV”) stamp within a few days (although there are exceptions, and the time when the passport was returned with the stamp the same day as the interview are increasingly a thing of the past). In some cases – such as where some ground of excludability exists and a waiver is required, or where a security concern is raised – the embassy or consulate may need to refer the case back to the U.S. State Department for further investigation before granting a visa stamp. This is frequently referred to as “Administrative Processing.” This may add weeks or sometimes even months to the process, and the possibility should be discussed in detail with your lawyer ahead of time.
The recommended place to apply would be the nearest U.S. embassy or consulate to the foreign national’s last residence in his or her home country which handles non-immigrant visa applications. We strongly suggest that the foreign national check the web page for this embassy or consulate to determine specific requirements. A complete listing of web pages for U.S. embassy or consular posts can be found here. The individual embassy and consular web sites will provide important information such as:
How to pay the fee (some embassies and consulates require that payment be made at a local bank and a receipt provided, some will accept payment directly);
Whether an additional reciprocity fee applies;
How long the process normally takes at this post (so that you may plan how long you will need to remain abroad);
How to set up an interview appointment; and
Whether this post will accept applications from third country nationals (those who did not live in the post’s jurisdiction before coming to the U.S.)
If the foreign national’s plan is to travel only to a third country or to a region of their home country other than that nearest to their last place or residence abroad, care should be taken to determine ahead of time whether the U.S. embassy or consulate there would be willing to handle the application. So-called “third-country applications” (applications made in a place that has no jurisdiction over the foreign national because they do not cover the area where the foreign national last resided abroad) are discretionary – the embassies and consulates are not required to accept and process them, and the foreign national may be forced to travel to their last residence abroad for visa stamp processing. Further, a foreign national who has at some point been out of legally valid status in the U.S. will be required to apply for any further non-immigrant visa stamps at a home-country consulate, even if he or she was in valid status right before leaving the U.S.