Is H-1B Consular Processing the Right Option for You?

Overview

Consular processing your H-1B petition means that you apply for the visa at a U.S. consulate in your home country. If you are outside the U.S., your default option to enter into the U.S. with an H-1B visa is through consular processing. The processing time and mechanisms of petitioning through consular processing is the same as regular processing, with a few differences that may offer strategic advantages to even those currently in the U.S. 

Who Must Consular Process?

Under INA §222(g), a nonimmigrant who “remained in the United States beyond the period of stay authorized by the Attorney General” cannot be readmitted to the U.S. except “on the basis of a visa issued in a consular office located in the country of the alien’s nationality…” Simply put, those who are neither in lawful status nor a period of authorized stay by the Attorney General must go through consular processing to lawfully enter back into the U.S. (for more detailed explanation of the different terminologies,  please refer to our posting here).

There can be many unpredictable situations which may render you out of status. For example, your petition may be denied for an unforeseen reason, USCIS may determine that you failed to timely amend your petition after working at a new location, USCIS may dismiss your nunc pro tunc argument, or your employer may withdraw your approved petition after firing you. When you are faced with various status issues, you should consider consular processing to build the strongest case possible which could increase your chances of approval.

You should also petition by consular processing if you plan on leaving the U.S. shortly after a change of status petition has been filed on your behalf, because your change of status petition is deemed automatically abandoned if you leave the U.S. while it is pending. If you consular process your petition, you can exit the U.S. and simply come back after your petition has been approved.

Advantages of Consular Processing:

When you petition by consular processing, you do not have the burden to prove that you have maintained a valid status in the U.S. Therefore, less documentation is necessary to support your petition. This can offer a big benefit in light of the Trump administration’s attack on immigration, and especially after USCIS’s recent Policy Memo that proposes to retroactively calculate unlawful presence for F-1 students and certain exchange visitors. Even if the proposed Policy Memo goes into full effect, you may still be able to overcome your status issues by utilizing consular processing options.

Disadvantages of Consular Processing

When your H-1B petition is approved through consular processing, the approval notice will come without an I-94. This means that you are not given any status in the U.S. (and cannot work) until you leave, go for a visa stamping, and re-enter. Therefore, it can create a big hurdle for those who do not have flexibility in their work start date, as processing time for each petition varies depending on the number of Requests for Evidence issued on the case, among other factors. Also, availability of visa stamping interviews can differ for each country, which may further delay your ability to start work in the U.S.

 

By Soo Choi

Soo is an associate attorney at Reddy & Neumann. Her practice covers the non-immigrant visa process, specifically the H-1B specialty occupation visa.

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