[USA] Questions and Answers about Visa Application

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Immigration expert Paul Zulkie tackles some tough issues about getting an increasingly difficult approval in time to start B-school.

If you've got questions about student visas -- look no further. Paul Zulkie, president-elect of the American Immigration Lawyers Assn. and author of the book, Immigration Compliance in Employment and Business, processes hundreds of immigration applications annually through his law firm, Zulkie Partners. At a Dec. 17 live event on BusinessWeek Online, Zulkie fielded questions from an audience of international students on how to get visas to study in the U.S.

Here's an edited transcript of that event, which was co-hosted by BusinessWeek Online's management-education reporter Mica Schneider, and BW Online consulting editor Jack Dierdorff:

Q: Paul, schools are very forthcoming with their non-U.S. applicants. They say, "We might admit you to our school, but we can't ensure that you'll be granted a visa to study here." It seems to be getting harder and harder for foreigners to snag U.S. student visas. What trends are you noticing from your vantage point?
A: First, the "Culture of No" has become an epidemic with both the Homeland Security Dept. and U.S. consulates abroad. Every decision to approve a visa is viewed through the prism of national security. In the old days, all a student had to establish was the ability to pay for an education, as well as document an intention to return home after getting the degree. That has all changed.

Q: Is the hurdle higher for visa applicants from Mideast and Arab countries?
A: Absolutely yes. While all visa applicants are now subject to multiple levels of security checks, as well as in-person interviews at all U.S. consulates, individuals from Mideast and Arab countries receive extra scrutiny, and many are subject to the special registration program administered at U.S. airports and local immigration offices.

Q: Here's a good question from the audience: "I'm an international student and am looking to join B-school next year. One of the requirements for getting a visa is proving that you will go back to your home country after completing the MBA. Can you give me examples of such proof?"
A: Generally speaking, the government looks to long periods of residence and family ties in your home country. It's very difficult to prove a negative -- that you won't go home. One thing that will be a real problem is if you have applied for a green card in the U.S. or some family member has filed a petition to get you a green card. That is uniformly considered proof of intent to remain in the U.S.

Q: How difficult is it these days to get work permits in the U.S. after completing an MBA?
A: Generally, for MBAs it's normally not that difficult. With rare exceptions, when MBAs complete a degree they're eligible for a one-year work permit referred to as Student Practical Training. Graduates apply for this on their own with the assistance of a school's international-student adviser. It isn't tied to any specific employer, so the graduate can go job hunting.

Q: Do summer internships count toward the Student Practical Training period?
A: I recommend that your specific situation and internship be discussed with the international student adviser at your school. These people are a tremendous resource and experts on this subject. If the summer internship is a required component of the degree program, it often doesn't count against the post-graduate one-year limit. On the other hand, if it's simply another summer job unrelated to the degree program, it does count against the one-year post-graduate limit.

Q: Can the one-year work permit that comes with a student visa for an MBA later be extended to an H-1B visa work permit?
A: That's a very common and acceptable path for MBA graduates. It's important that the applications be filed well in advance of expiration of the Student Practical Training to guarantee that the graduate maintains legal status in the U.S. (see BW Online, 03/03/03, "A Mainframe-Size Visa Loophole").

Q: If you've had two previous student visas (one for a bachelor's degree another for a master's degree) and have used your Student Practical Training once, are you still eligible for Student Practical Training as an MBA graduate?
A: Again, practical training issues are always best addressed with the international student adviser where you're getting your MBA. I believe the answer to this question is no, because there's a requirement of residence abroad before undertaking a second practical-training experience.

Q: How long does it take, and how much does it cost, for a foreign student to obtain a work visa in the U.S.?
A: The documentation for Student Practical Training takes the form of a photo ID card issued by the former Immigration & Naturalization Service (INS), which is now part of Homeland Security. This card is called an Employment Authorization Document, better known as an EAD. Processing time is typically three to four months, and the government charges a processing fee of approximately $130.

Q: How late should a student apply for a student visa?
A: Generally speaking, student visa applicants should submit their applications two or three months before their anticipated departure date [to the U.S.]. This allows sufficient time for their application to be processed, and it allows students time to complete their interview at a U.S. consulate. Doing it any later than that could mean that they miss the start of their semester. If a current student is applying for a work visa, I would apply as soon as the international-student adviser [at the B-school] says you can, which is largely a function of how certain it is that you will graduate on time. Always assume that government processing times are unpredictable and can increase for no apparent reason.
Q: Are there any advantages for candidates who have been to the U.S. before on business and work visas?
A: Yes. Having previously visited the U.S. for employment, or even just business trips, and thereafter returning home and never overstaying a visa in the U.S., establishes both a pattern of compliance with the law and strong ties with your home country.

Q: I was denied two years ago for an F-1 visa with my valid I-20. How will this affect my application for next year?
A: Technically, it shouldn't doom your application next year. However, the consulates will review your file from the prior application to see what the reason was for the denial. You should be prepared to address that issue directly and bring whatever documentation you can to convince the interviewer at the consulate that whatever that problem was, it's no longer an issue.

Q: I'm going to apply F-1 in March. Coincidentally, my parents and sister are in New Jersey, with a B-1 and an L-1, which will be valid until the end of June. Will this situation affect my visa application?
A: This will definitely not be a positive factor in connection with your F-1 application. The presence of immediate family members in the U.S. on different types of visas is generally considered by U.S. consulates as evidence that you may not be interested in returning to your home country.

Q: I'm from China. I've heard that it's difficult for Chinese to get visas to study. Why is this so?
A: Traditionally, the U.S. consulates in China have taken a much more restrictive view than other U.S. consulates on the issue of whether Chinese students really desire to return to China after completing a degree program. The standard of proof has always been much higher, despite the fact that there's really no support in the law for treating Chinese students differently than students of any other nationality.

Q: I'm an Indian citizen and planning to apply to an MBA program in the U.S. The costs for these MBA programs are quite high, and almost any international student I know takes a loan to fund their MBA. But one of the things we're told is that in order to secure a visa from the American embassies in our country, we need to show proof that we have the funds to pay for the education. Furthermore, I'm told we can't tell the embassy that we're taking a loan. So how does this work?
A: The level of review of a student and his or her family's financial resources varies considerably depending on what country you're in. The most common documentation requested by U.S. consulates includes bank statements for visa applicants and their parents, as well as confirmation of your parents' employment and their salaries. This data is compared against the cost projection contained in the 1-20 form issued by the school. It's a very subjective analysis on the part of the U.S. consulate with a goal of proving that you won't have to work in the U.S. in order to finance your education.

Q: I'm planning to finance my MBA education through a Fulbright scholarship. Does one have to get the visa first?
A: I must admit that I'm not familiar with the application process under the Fulbright program. Generally speaking, you should not submit your F-1 visa application to the U.S. consulate until you have all of your funding settled.

Q: Is it easier to get a work visa if I am a British citizen?
A: To be honest, no. There are no distinctions made between different nationalities in terms of eligibility for work permits in the U.S., with the sole exceptions being certain citizens of Canada and Mexico under the NAFTA treaty.

Q: As a Canadian citizen born and raised in Canada, should I expect any difficulties at all in obtaining a visa for B-school in the U.S.?
A: All applicants for student visas are theoretically subject to the same standards of establishing financial stability, as well as an intent to return home. However, in practice, the level of review is lower for students from developed Western countries.

Q: Is the U.S. visa situation different for Latin American students?
A: No, it's the same.

Q: I'm the director for an international MBA program in Florida and have seen some cases of visas denied to Latin American students. Is this a recurring trend?
A: I've heard anecdotal evidence that U.S. consulates in Latin America have become increasingly strict in connection with both student and tourist visas. The general assumption is that this trend is related to the shaky economies of many Latin American countries that have suffered as much, or worse, than the U.S. economy. It certainly is not related to the post-September 11 security concerns faced by other nationalities.

Q: I have a wife who will need a dependant visa. How difficult will it be to get her a visa, and what do I need to do to get it?
A: Spouses and children under the age of 21 who accompany a foreign student are eligible for an F-2 dependant visa. This is normally not a problem unless either the spouse or children have previously been denied some type of other visa, such as a tourist visa for some other reason.

Q: Does it make a difference if a student-visa applicant has been accepted at a well-known, brand name school such as Kellogg, Wharton, or Harvard?
A: Surprisingly, no. It really doesn't make that much of a difference. For better or for worse, employees of U.S. consulates don't seem to be impressed when a student is going to a well-known, brand-name school.

Q: We've had many questions about the 65,000 limit on H-1B visas -- and here's another: What's the current status on the number of H-1B visas issued to-date for 2004?
A: I was on a teleconference just last Friday with Homeland Security in Washington where this very issue was addressed. At the present time, visas remain available under the new lower cap of 65,000 based upon usage since Oct. 1. While predictions can be risky, based upon what I heard, I don't think the cap will be exhausted any earlier than February and could last a little bit longer. My personal opinion, based on pure speculation, is that the visas will be gone by May at the latest.

Q: Do you get the sense that the U.S. will raise the number of H-1Bs anytime soon? Or will foreigners have to wait until there's more evidence of job creation in the U.S.?
A: Only Congress has the power to increase the number of H-1B visas. At the moment, it appears that members of Congress are unwilling to introduce legislation to increase the cap because of the current level of U.S. unemployment, combined with the fact that 2004 is an election year.

Q: A few audience members have requested that we back up for a moment, asking, "What is an H-1B visa?"
A: H-1B visa can best be described as a work permit that may be issued to professionals who meet certain standards established by U.S. law. In a nutshell, this standard is that the individual is going to work in a profession that requires a particular type of degree as a normal entry-level requirement and shows that they also posses the relevant degree.

Q: Is there anything a visa applicant can do to improve their chances of approval? And is it better to use a lawyer to apply for an F-1 visa?
A: It's extremely unusual to use a lawyer when applying for an F-1 visa. Candidly, most U.S. consulates would view that as a signal that there's something strange about the case.

Q: If you shouldn't use a lawyer in a visa application, what else can you do to help your case?
A: Generally, it's always a good practice to have all of the requested paperwork and backup documentation the first time the visa application is submitted. Always assume that U.S. consulates will look at everything but that they will review the documents [only cursorily]. If the package isn't both complete and logically presented, the odds of a rejection increase dramatically.

Q: I am an international applicant who is working in the U.S. and am waiting on the final AOS I-485 for permanent residency (I applied in August, 2002). Can I apply to B-school for the fall of 2004 as a permanent resident?
A: Yes. Many schools may ask for evidence of your immigration status before making the final decision to accept you.

Q: We're getting lots of questions about the types of proof that applicants have to submit to show their intent to return home after earning the MBA. Can you remind the audience of a couple of documents they can submit to prove that they're not moving to the U.S. for good?
A: Ironically, there's no checklist of either documents or answers that applicants need to submit. It's important to explain where immediate family members such as parents live and work, or whether the family or the student owns a house or apartment in their home country. Lastly, depending on the degree program that the student will pursue -- and today we're talking about business school -- there could be questions directed to the visa applicants about how they intend to use that degree for employment when they return home. Again, many business-school applicants have had some work experience after completing their undergraduate education. This is a good example of how the business-school degree can be used to advance their career in their chosen field.

Q: Do student-visa applicants need to show financial proof for just the first year of an MBA program or for both years?
A: You need to establish the ability to pay for the entire program, not just the first year.

Q: I am an Indian citizen currently on a H-1 visa in the U.S. My employer has already applied for my green card. Do I need to worry about being denied an F-1 visa for B-school, based on an intent to immigrate?
A: The H-1B visa requires a U.S. employer to sponsor the individual, and the paperwork is filed with a bureau that is part of the Homeland Security Dept. It's a relatively technical process in terms of the paperwork, but you'll be happy to know that MBAs are generally good candidates for an H-1B approval.

Q: Earlier this year I came to the U.S. on an F-1 visa to study at the Harvard Summer School but was issued a five-year, multiple-entry visa. This year, I intend to come to the U.S. for my MBA. Will the same visa be valid, or will I have to go for a fresh visa?
A: You will need to apply for a new visa.

Q: Is it more difficult to get a work visa from a smaller, vs. a larger company after graduation?
A: Excellent question. While the law makes no distinction in practice, larger corporations always have an easier time getting H-1B petitions approved. Smaller companies are often seen as marginally profitable and suspected of creating the job solely for the purpose of employing the MBA graduate. While in my experience this is rarely the case, the mindset of some government employees on this issue is difficult to change.

Q: Will my dependant-visa status affect my ability to get job offers after the MBA?
A: I'm assuming that when you refer to dependant-visa status you mean that you're presently in the U.S. on an F-2 or an H-4 visa. Your ability to be sponsored for employment after getting the MBA wouldn't be different if you're seeking an H-1B visa. However, only students who graduate with an F-1 visa are eligible for the one-year work permit called Student Practical Training.

Q: Just in case, let's also take the question to be, "Will my dependant's visa status affect my ability to get job offers or obtain a visa?"
A: It hasn't been my experience that U.S. companies are particularly interested in the status of dependants before they make a job offer. In addition, this normally doesn't impact the ability to get a visa stamp abroad.

Q: If I'm denied an F-1 visa, is there an appeal process?
A: No. The U.S. law is very clear that there's no formal appeal from a decision by a U.S. consulate to deny a visa. The only recourse is to request an advisory opinion from the U.S. State Dept. In practice, Washington will almost never advise a U.S. consulate that its denial was in error when the reason for the denial was [a student's] inability to pay for the school program or their inability to prove an intent to return home after getting the degree.

Q: We've had quite a few questions regarding where people should apply for their visas: "As a Canadian, do I apply for an F-1 visa at a consulate or at the border?"
A: Canadians are visa-exempt, meaning they apply for their F-1 status at the border.

Q: If a student is in the U.S. on an F-2 visa, is it easier to get her F-1 status by applying while she is in the U.S., or is it easier to get the F-1 in her home country?
A: Whether the change of status from F-2 to F-1 is easier or not largely depends on where you're from. If you're from a country such as China, you're probably better off requesting a change of status inside the U.S., rather than taking a chance at a U.S. consulate back home.

Q: I've heard that it's much more difficult for women from developing countries to get visas than for men from developing countries. Is this true?
A: I must admit that this is one anecdote I haven't heard. It's possible that in some developing countries, upwardly mobile woman are assumed as more likely not to return because their career options in the U.S. culture are better than in their home culture. But again, this is just an assumption on my part, and I haven't heard of any distinct patterns reflecting decisions at U.S. consulates.

Q: Paul, would you wrap up today's conversation with a few general tips and words of wisdom? At this point in the admissions season -- assuming students will arrive in the U.S. in August, 2004 -- where should they be with their visa applications?
A: Visa applications should be submitted as soon as the student is accepted to an MBA program and they've obtained all of the necessary backup documentation. Backlogs at U.S. consulates for interviews are unpredictable and continue to get longer and longer in countries that send lots of foreign students to the U.S. The worst thing that can happen is missing the start of the semester. My last words of wisdom are: Prepare for a somewhat more restrictive security-oriented immigration environment in the U.S. This includes registration at the airport for students from Arab and Muslim countries, as well as reporting requirements for such minor life decisions as moving to a new apartment. Listen to your international-student advisers. They know a lot and can keep you out of trouble.