Making a US visa application from the UK

Foreign nationals must have the required permission to travel to the USA. Some travellers may qualify for visa-free travel, while others will have to make a US visa application.

The first step is to identify what type of permission you need, taking into consideration the purpose of your travel to the US and your eligibility.

In this article, we look at the most common immigration applications for British nationals planning to travel to the USA.

Visa-free travel for short-stay visits

For short stays of 90 days or less, nationals of the Visa Waiver Program (VWP) countries, including the UK, may be eligible to travel visa-free to the USA where they have been granted ESTA (Electronic System for Travel Authorisation) approval.

VWP permits entry to the US for up to 90 days for business or tourist purposes, or for transit, provided the individual meets the ESTA conditions, including in relation to criminal convictions.

In addition, the reason for travel must also come under one of the ESTA permissible activities. You would not, for example, be allowed to study or perform ‘productive’ work under ESTA.

If you do not meet the conditions of the VWP, for example you have a past conviction or you are looking to work while in the US, you will need to make a US visa application before you travel.

Immigrant or nonimmigrant visa?

There are two categories of US visa: immigrant and nonimmigrant visas.

Immigrant visas are for people who wish to live and work in the USA permanently. Immigrant visas are classified as follows, depending on the individual’s eligibility:

• Employment-based
• Family-based
• Special Immigrant
• Diversity Visa Program

Nonimmigrant visas are used for temporary visits or periods of time in the USA, and come under the following general categories:

• Tourism and medical treatment
• Business
• Temporary employment
• Study and exchange

There are specific visas under each of the above categories, with their own eligibility and application requirements.

We provide here a general summary of the US visa application process for both nonimmigrant and immigrant visas, but it is always recommended to take legal advice on your individual circumstances to ensure you select the most appropriate visa for your purposes and follow the correct application process.

Making a US immigrant visa application

To apply for an immigrant visa, you must generally be sponsored by a prospective employer, a relative who is a US citizen, or a US lawful permanent resident.

A sponsor must be an individual, at least 18 years old and a resident of the US or US territories or possessions. A business or other type of organisation cannot act as a sponsor.

Employment-Based

If your reasons for entering the USA are to gain permanent employment, your prospective employer must first obtain a labour certification approval from the US Department of Labour before filing the form I-140 (Immigrant Petition for Alien Worker) with USCIS.

Only once that is approved, can you apply for your immigrant visa.

Family-Based

If you intend to become a US lawful permanent resident through the family-based route because you have a relative who is already a US citizen or US lawful permanent resident, your relative must act as your sponsor.

Your relative should submit form I-130 (Petition for Alien Relative) to USCIS and then provide evidence that they have sufficient finances, be that through income or assets held, to support you once you enter the USA, by signing an Affidavit of Support.

Special Immigrant

The range of categories that could be eligible for a Special Immigrant visa is wide and varied, and the methods of petition are equally so.

With certain Special Immigrant categories, such as a religious worker, the petition will be made through a prospective employer. With other categories, the applicant themselves will make the petition but with a recommendation from a respected individual.

Diversity Visa Program

Under section 203(c) of the Immigration and Nationality Act, the US government provides a limited number of immigrant visas to nationals from countries that have a historically low immigration rate to the USA.

Applications are made online.

Interview process and decision

Should USCIS approve the petition (generally the sponsor’s application), it will be forwarded to the NVC (National Visa Centre) who will assign it a case number.

You will then be contacted by the NVC and asked to complete the form DS-261 (Choice of Address and Agent), and to pay the appropriate fees. You will then receive instructions from the NVC to submit any required immigrant visa documents.

When the NVC is satisfied that they have all the required documents, they will arrange your interview appointment at your local US Embassy or Consulate. You will receive an appointment letter or email, with guidance on the interview process including how to obtain a medical examination.

This medical examination and any required vaccinations must take place before you attend your interview.

When you attend your interview, you should take your passport with you and any of the following if they have not already been supplied to the NVC:

• Form DS-260 (Immigrant Visa and Alien Registration Application)
• Two 2×2 photographs
• Your civil documents – originals or certified copies
• Evidence of your financial situation to show that you will not be a ‘public charge’ in the USA, i.e. dependent on the US state for living expenses
• Completed medical examination forms

Digital fingerprint scans will also be taken at the US Embassy or Consulate on the day of your interview.

The interview will be carried out by a consular officer. The purpose of the interview is to ensure that you are eligible for a US immigrant visa.

It is unlikely that you will receive a decision straightaway after your interview. It is more likely that there will be a further waiting period before the decision is made, especially if your application is placed in a preference or priority process.

Should your application be denied, you may be eligible to appeal against the decision. An appeal may be filed with either of the following:

• USCIS Administrative Appeals Office (AAO)
• Board of Immigration Appeals (BIA)

Alternatively, you may file a motion with the USCIS office that denied your visa application, asking them to review their decision.

Whichever method of appeal you take, it is always advised to seek legal advice.

Making a US nonimmigrant visa application

Temporary, nonimmigrant routes include visas such as the L-1, B-1, E-2 and O-1. Each route has its own individual eligibility criteria and may entail some differences in the petitioning process. In general, you the nonimmigrant visa application process would be as follows.

Your application begins by completing the online visa application, form DS-160.

Once you have completed the online process, it is important that you print off a copy of the application form confirmation page.

The next stage is to schedule an interview at your local EU Embassy or Consulate if you are between 14 and 79 years old. Generally, for individuals who are 13 and younger or 80 and older, interviews will not be necessary.

The waiting time for interviews varies by season, location and the category of visa you have applied for, so it is always advised to apply for your visa as soon as you can.

While you wait for an appointment to be assigned to you, it’s advisable to gather all necessary supporting documents to take with you to the interview:

• Your passport. This must be valid for at least six months after the date you intend to depart the USA at the end of your time there, and valid for travel to the USA.
• The confirmation page from your DS-160 US visa application form.
• The payment receipt for the application fee to your local EU Embassy or Consulate if you are required to pay this fee before your interview. Check payment requirements before making your application.
• If the photo upload during your online application failed, then you must bring a printed photograph with you to your interview.
• Your application may require additional documents depending on the type of visa you apply for. For instance, you may be required to show evidence of your qualifications, the reason you intend to visit the USA, or that you can afford to pay for any costs incurred while you are in the USA.

Your visa interview will take place at your local EU Embassy or Consulate, where you will be interviewed by a consular officer. The purpose of the interview is to ensure that you are eligible to receive your non-immigrant visa. The onus is on the applicant to demonstrate that they meet all the requirements to be granted a visa under US law.

Biometric information will be taken during your visit to the Embassy or Consulate.

After the interview, the consular officer will decide whether to grant or decline your visa application, or whether further information is required before a decision can be made.

Making a US visa application?

The process of making a US visa application, from deciding on the right kind of visa to completing the necessary documentation and attending your interview at a US Embassy, can be lengthy and complex.

We provide specialist immigration legal advice to help navigate the complexities of the US visa application process and address specific issues such as criminal waiver applications, dealing with a request for evidence (RFE) or your options if your application has been refused.

If you have a question about making a US visa application, or any other US immigration-related matter, please contact us for advice.

This article does not constitute direct legal advice and is for informational purposes only.