Most people without much knowledge in how the US immigration system works tend to think in terms of legal vs. illegal. When people say legal or illegal status, what is being talked about is the legality of one’s status in the United States. While that may be the only way of thinking for US residents, there are many different angles to this inquiry including what it means to have valid status and visas in the US.
One can have a legal status in the US without having a valid visa but without a valid visa, you cannot enter the US. A valid status means you can stay in the US but one cannot travel outside the US and come back to the country without a valid visa stamped on a passport. An example of this situation is when a foreign national comes to the US on a certain non-immigration visa such as B-1 or F-1. The person would initially have to apply for a visa at a US consular office in his or her home country by filing DS-160 and schedule an interview appointment. After that, the person would have a valid visa stamped on the password. The person then comes to the US and decides he or she wants to change the visa status to another visa in order to work in the US. The person files all the required documents with the USCIS and eventually is approved for the new visa, such as H-1B, which is a non-immigrant visa for temporary professional workers. This person however, may not travel outside the US and come back in without further getting his or her passport stamped at a US consular office. Changing status only provides legal status in the US, but not a valid visa stamped on the passport. You can only get visas stamped through consular processing. So in this case, the person must travel outside the US and apply for an H-1B visa stamping at a consular office. Some people do this in Canada as a third country national but the process may not be as easy as if the person did it at his or her home country.
Can all non-immigrant visa holders with only a valid status without a visa travel to Canada or Mexico for a visa stamping? Some can but not all. First, rules are different for eligibility between the US embassy in Canada and Mexico especially with third country nationals (TCN). The consular office in Mexico does not allow TCN visa stamping for visa categories of visitor, transit, diplomat, treaty trader, treaty investor, H1A, H2A, H2B or Q worker. Also E visa category visa stamping is usually not allowed for TCNs in any US consular office other than one’s home country. Additionally, change of status vs consular processing for E-2 visa is subject to two different standards. Consular processing usually has stricter standards than USCIS processing.
In Canada, although more TCN visa holders are allowed for visa stamping, sometimes a heavy demand for visa stamping results in shutting down their services. In fact, TCN visa stamping has been shut down and the applicants’ processing has been suspended for the month of June, July and August of 2014, which are the peak months for visa stamping due to F-1 student visa holders being on summer vacation. Other alternatives include consular offices in Bahamas, Jamaica, and nearby island countries although the best alternative would be the person’s home country because a US consular office in a foreign country may not recognize your documents and diplomas from your home country and deny the visa stamping for that reason. US consular offices readjudicate cases already approved by USCIS and this is the very risk that US visa holders are sometimes hesitant about traveling outside the US for visa stamping because even after an approval from USCIS, consular offices can still reject your case.
In any situation, you must talk to an immigration attorney about your plans to change visas and traveling outside the US. One simple mistake can really cost you if you don’t understand the laws but also how the system works. I am an immigration attorney in Sacramento, California at Law Offices of Peter Park and I help people with immigration and visa issues on a daily basis. Usually clients don’t know what the best route for their immigration is. As an attorney, I enjoy advising and educating them with relevant immigration laws and procedures so they can plan their future legally in the US.
Peter Park
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