A Columbus, Ohio Client asked me what has changed at the embassy interview and what to expect due to recent H-1B policy changes. So I thought a blog on this topic is appropriate. The H-1B visa is an employment-based, non-immigrant validation available for foreign national workers in specialty occupations. Unless a foreign national is already in the United States and eligible for a change of status, they will have to visit a U.S. Consulate or Embassy to obtain an H-1B visa. Notably, the U.S. Department of State has recently reiterated that “visa applications are now subject to a greater degree of review than in the past.” Thus, it is more important than ever for an H-1B visa applicant, especially those in consulting positions in the IT industry, to know what to expect at the U.S. Consulate or Embassy interview and how to prepare themselves.
An H-1B validation applicant should always check the website of their specific Consulate or Embassy for a list of items to bring to the interview. The foreign national should bring the following documents to the interview regardless of which U.S. Consulate or Embassy they will be visiting:
- The original I-797 Approval for the H-1B Petition;
- A copy of the entire I-129 Petition for Nonimmigrant Worker, including certified Labor Condition Application;
- Their original passport, as well as a copy;
- Their original educational documents – such as diplomas, transcripts and certificates – as well as copies.
- The completed Nonimmigrant Visa Application Form (DS-156 or DS-160) and, if necessary, the Supplemental Nonimmigrant Visa Application (DS-157);
- Two passport style photographs; and
- A letter from the prospective U.S. employer confirming the specialty occupation, wage and intent to hire the foreign national.
If the foreign national is going to be working for a consulting company, the H-1B validation applicant needs to bring two employer letters to the interview. Not only should the foreign national bring a letter from the petitioning employer, but they should also bring a letter from the end client confirming the details of the project for which the foreign national’s services are being contracted.
Given the current downturn in the economy and the recent USCIS guidance on the employer-employee relationship for H-1B purposes, it is even more essential for an H-1B validation applicant to know how to respond appropriately to questions asked during the interview. The foreign national should be able to succinctly answer questions about the prospective U.S. position and actual employer (not to be confused with the end client), their qualifications for the position including educational information and prior experience, and how long they intend to remain in the U.S. It is important to remember that although the H-1B visa ultimately allows for dual intent, it is a nonimmigrant visa and the consular officer will be looking for indications that the foreign national has immigrant intent.
The H-1B visa applicant should always stress that their intended stay in the U.S. is temporary to comply with the nonimmigrant nature of the H-1B visa. Moreover, H-1B visa applicants working for consulting companies will likely need to prove the employer has positions to fill, that the foreign national will not be benched and that the petitioning employer will have sufficient control over the H-1B employee. It is highly recommended that any H-1B visa applicant preparing for an interview at the U.S. Consulate or Embassy consult with a knowledgeable immigration lawyer in advance of the appointment. Consular officers are reviewing H-1B visa applications, especially those for IT consultants, with increased scrutiny due to the downturn in the U.S. economy and, therefore, it is more necessary than ever for H-1B applicants to be fully prepared for the visa interview.