  | Visas and Status: Extending and Changing
The INS Doesn't Issue Visas But Can Change Your Status
Visas are issued by consuls not by the Immigration and Naturalization Service (INS). Since consuls are located only outside the U.S., visas are issued only when the applicant is in a foreign country. When the person is outside the U.S., questions about visas and other matters are taken care of by the U.S. State Department (foreign ministry) through consuls. When a person is physically in the U.S., it is the INS that has jurisdiction, not the State Department.
So, when in the U.S. you ask the INS to change your status; when you are outside the U.S., you ask a consul to issue a visa. The status and the visas are given the same name to avoid confusion. A person might request a change to L-1 status while here then, later when outside the U.S., the person would request an L-1 visa from the consul. Both are referred to as "L-1". To obtain a change from one visa status to another, it usually requires that a petition be submitted and approved by the INS.
Let's talk about when a visa is necessary. When a person is in the U.S. and changes status, say from F-1 student to H-1B professional worker, the status change given and approved by the INS is good for the validity of the approved petition, perhaps from one to three years depending on the type of status and other factors. However, and this is important, if the person leaves the U.S., they no longer have a status here since they are no longer under the jurisdiction of the INS. The person must request and receive a visa (H1-B in this example) from a U.S. consul. Without the new visa, the person will be refused entry to the U.S. even though the person has an approved and valid petition from the INS.
Here are a few remarks about getting a visa from a consul based on an approved INS petition. It is good to remember that the person does not have to leave the U.S. just to get a visa. The person may remain in the U.S. with the INS status for as long as the approved petition is valid and for any approved extensions. It is only if the person chooses to leave the U.S. that an application for a visa must be made to the consul.
Unfortunately, a consul is not bound by the INS approval. The consul may make further inquiry to see if the person is qualified for the visa. In countries with high rates of visa fraud, this can cause delay and even refusal of the visa by a consul. A consul has a right to return the approved petition to the INS for review if the consul believes it was approved in error. For this reason, some people choose to go and apply to a U.S. consul in Canada or some other country rather than return to their own country.
Two other points are important. In order to change or extend status while in the U.S., the person must be in legal status at the time the petition submitted to the INS. An out of status person will not be able to change or extend status while in the U.S. (as with most others, this rule has its exceptions.) And to state the obvious, if the person is not in the U.S. when the petition is approved, then the person must obtain a visa from the U.S. consul before entering the U.S. An approved petition cannot be used as a visa.
Here is list of US visas. |
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