USCIS Nonimmigrant Approval Notice (Form I-797)

When an employment-based nonimmigrant petition filed by an employer with the United States Citizenship and Immigration Services (“USCIS”, formerly INS) has been approved, the USCIS issues a Form I-797 Notice of Approval. The I-797 approval notice states the nonimmigrant status (e.g., H-1B, L-1A) and the dates of employment authorized by the USCIS. The I-797 approval notice is not a visa and does not permit you to apply for entry (“admission”) into the United States. To apply for entry to the United States, you will need to obtain a nonimmigrant visa. Those who present a nonimmigrant petition directly at a U.S. Consulate or U.S. port of entry (e.g., TN, E or some L visa applicants) do not require a Form I-797. 

Your Nonimmigrant Visa
You and each family member traveling with you to the United States must have a nonimmigrant visa entered in your passport, as outlined below. The visa allows you to apply for entry at a United States border or port of entry. Depending upon your country of origin, the validity date of your nonimmigrant visa may or may not correspond with the expiration date on your I-797 approval notice. We recommend that you carry your I-797 approval notice and a current employment verification letter when you travel outside the United States. Please note that you may not need to obtain a new visa merely because you have changed employers and received a new I-797 approval notice: if your current visa is still valid and your I-797 approval notice lists the same nonimmigrant status as your visa (e.g., H-1B or L-1), you may enter the United States with that visa as long as you carry your new I-797 approval notice. If your visa expires while you are in the United States, you do not need to obtain a new visa unless you have plans to travel outside of the United States. You may legally work and remain in the United States pursuant to your unexpired Form I-94 arrival record (which will be issued to you upon your entry to the United States), even if your visa stamp in your passport has expired.

If You are Canadian
If you are a Canadian citizen you will not need a visa in order to apply for entry to the United States (unless you are entering under E-1/E-2 status, in which case you will need a visa). You need only present your I-797 approval notice. Your spouse and children must present proof of their relationship to you (e.g., marriage certificate and birth certificates for the children). Upon entering the United States for the first time, you will be issued a Form I-94 that will be generally stamped “multiple-entry.” When you leave the U.S., you will not need to relinquish your multiple-entry Form I-94, but rather may use your multiple-entry I-94 to depart and re-enter the United States for as long as it is valid.

If you are presenting a TN or L-1 petition at the border (for adjudication by a U.S. Customs and Border Protection officer at the border), the USCIS I-797 approval notice will be mailed to us at a later date. We will forward the I-797 approval notice to you once we receive it from the USCIS. The lower portion of the I-797 approval notice should then be placed in your passport. You should also carry the upper half of the I-797 approval notice when you travel.

How to Apply for a Nonimmigrant Visa
I. Applying at a United States Consulate Abroad (other than in Canada or Mexico)

A nonimmigrant visa is obtained by applying at a United States Consulate in a country outside of the United States. You can find information about the particular requirements at each Consulate from the following United States Department of State website: https://www.usembassy.gov/. Generally, each visa applicant requires the following:

  1. Valid passport (if possible, valid for entire period of work authorization).
  2. Your entire original USCIS approval notice (Form I-797);
  3. In rare instances, a consulate may require a copy of the entire USCIS petition filed by your employer;
  4. A current employment verification letter from your employer if you are applying for a visa more than 6 months after the approval of the petition;
  5. Visa application Form DS-160, completed online; printed copy of the DS-160 confirmation page.
  6. A passport-type photo;
  7. The visa application fee;
  8. A reciprocity fee for nationals of certain countries (see https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html);
  9. Original marriage certificate for your spouse and original birth certificates for your children (listing parents’ names), along with translations if necessary.
  10. A glossy company brochure (suggested).
  11. If you are engaged in scientific research, bring a copy of your CV including list of publications.

Please note that some Consulates do not accept visa applications from people who are not citizens or residents of the country in which the Consulate is located. There may be delays in visa issuance for nationals of certain countries due to security checks. Currently, male nonimmigrant visa applicants from the following countries, ages 16 to 45, will be subject to at least a 20-day waiting period before visa issuance: Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen. Security checks are not limited to these countries and are at the discretion of the consular officer. The consular officer will inform you at your visa interview if you will be subject to an additional security check. If your application is subject to a security check you will most likely experience a delay in your visa issuance. If your visa application is denied, please obtain the name of the consular officer and ask the consular officer to provide a written statement explaining the grounds for denial.

No assurances regarding the issuance of visas can be given in advance. Therefore, we recommend that you do not make final travel plans or purchase a non-refundable ticket unless a visa has been issued and you are in receipt of your passport. Please contact us if you have questions regarding the timing of your travel plans.

Depending upon your country of origin, the validity date of your nonimmigrant visa stamp may or may not correspond with the expiration date on your I-797 approval notice. To find out the length of time for which your visa will be issued, see the following U.S. Department of State website: https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html.

II. Applying at a United States Consulate in Canada or Mexico

Visa applications may also be submitted at a United States Consulate in Canada and Mexico by appointment. Please note that nationals of certain countries (please see paragraph above) who are subject to additional security checks may not be allowed to make an appointment through this system. Appointments may be scheduled on the internet at: https://travel.state.gov/content/travel/en/us-visas.html. New appointment dates are generally added to the website at 7:00 a.m. EST each weekday. You will have the best chance of getting an appointment if you log on to the website early. Once your appointment has been set, the Consulate will send you a letter listing the items that you will need for your visa interview. That list will most likely correspond to the list provided in the section above. Please be aware of the issues regarding visa processing in Canada or Mexico described below under “Contiguous Country Rule.” If your visa application is denied, please obtain the name of the consular officer and ask the consular officer to provide a written statement explaining the grounds for denial.

Also note that Canada and Mexico require nationals of certain countries to have a visitor’s visa to enter their country. Canada has a website for Citizenship and Immigration Canada that lists those countries and also contains information regarding the visitor’s visa application process: http://www.cic.gc.ca/english/visit/index.asp. For information regarding the visitor’s visa application process for Mexico, please contact your nearest Mexican Consulate. The website for the Mexican Embassy in Washington, D.C. contains the addresses and phone numbers for Mexican Consulates throughout the United States (click on Consular Services): https://embamex.sre.gob.mx/eua/index.php/en/.

Your Form I-94
Upon your arrival to the U.S., your passport should be stamped by the immigration inspector noting your nonimmigrant status and an electronic Form I-94 (record of admission) will be entered into the U.S. Customs and Border Protection (“CBP”) system. CBP has recently implemented electronic automation of Form I-94 for foreign nationals arriving in the U.S. via air or sea only. CBP will still issue a paper Form I-94 at land border ports of entry. Once you are in the U.S., you must print a copy of your Form I-94 from the following website: www.cbp.gov/I94.

Please note that the Form I-94 determines the length of your authorized stay in the United States. Be sure to check that the Form I-94 accurately reflects the expiration date of your nonimmigrant status. If it does not, you must notify our office. It is your responsibility to remain in status at all times and to verify the expiration dates on all Forms I-94.

If your passport expiration date is earlier than your I-797 approval notice expiration date, the immigration inspector may or may not issue your Form I-94 for the entire length of approved status. The inspector may choose to issue your I-94 with an expiration date corresponding with your passport expiration date. After you obtain your new passport, you may obtain a new I-94, issued for the full length of stay listed on the I-797 approval notice, the next time you travel and enter the United States from abroad. This must be done prior to the expiration date listed on the I-94 issued to you when you first entered the United States. If you do not have plans to travel prior to your I-94 expiration date, but you have obtained a new passport, it may be possible to obtain a “corrected” I-94. Note also that you must maintain a valid, unexpired passport at all times while you are in the United States; we recommend that you renew your passport six months prior to its expiration date. 

Travel to Canada or Mexico: “The Contiguous Country Rule”
You will not have to relinquish your Form I-94 for short trips to Canada or Mexico, and may return to the United States using your I-94 without the need for a visa, if all of the following criteria are met:

  • Your I-94 remains unexpired;
  • Your trip to Canada or Mexico is thirty days or less;
  • You do not travel from there to another country;
  • You do not apply for a visa while you are there;
  • You are not a national of Iraq, Iran, Syria, Libya, Sudan, North Korea, or Cuba (countries the U.S. has identified as state sponsors of terrorism);
  • You possess a valid passport; and
  • You have maintained proper status in the U.S. (working without authorization violates status).

If you apply for a visa during your trip to Canada or Mexico and your application is approved, you will need to use that visa to enter the United States. If you apply for a visa in Canada or Mexico and your application is denied, you will not be able to re-enter the United States using your Form I-94. You may be required to return to your home country to apply for a visa there. Due to security checks, nationals of certain countries are subject to a 20-day waiting period before visas are issued. Please be aware that any bars to visa issuance (such as being subject to a J-1 two-year foreign residence requirement with respect to H or L visas) must be overcome before a visa will be issued, regardless of where you apply for your visa. If you attended educational institutions outside of the United States, we suggest that you obtain an education evaluation to submit with your visa application. U.S. visa officers in Canada and Mexico may deny visa applications if they are unable to evaluate foreign educational documentation.

Social Security Number
You must have a Social Security number when working in the United States. If this is your first job in the United States, then you probably do not have a Social Security number. You must apply for one in person at a Social Security Administration office, only after the USCIS has approved the employment-based nonimmigrant petition. You should wait 14 days after your initial admission to the United States before you apply for a Social Security Number because there is generally a delay in the receipt of information by the Social Security Administration regarding your immigration status. You may download the Social Security Number application form (SS-5) and find the location of your nearest Social Security Administration office on the Social Security Administration website: http://www.ssa.gov.

If your spouse is in L-2 or E status, we recommend that your spouse apply for a social security number, as this will be useful for obtaining a U.S. driver’s license and opening a bank account. If your spouse is in another derivative status, he or she is not eligible for a social security number but we do recommend that your spouse apply, in order to obtain a rejection letter which will be useful for obtaining a U.S. driver’s license or opening a bank account. Identification and other requirements for driver’s licenses differ by state; please check the current requirements for your state. Links to state driver’s license requirements may be found at http://www.usa.gov/Topics/Motor_Vehicles.shtml.

If your spouse and children are not authorized to work in the United States, then they may apply for Individual Tax Identification Numbers for purposes of opening bank accounts, paying taxes, etc. The ITIN application form (W-7) may be downloaded from the Internal Revenue Service website: http://www.irs.gov.

Taxes
Foreign nationals have certain tax obligations. You may obtain more information from the Internal Revenue Service website at: http://www.irs.gov (IRS Publication 519 “U.S. Tax Guide for Aliens”). You may also wish to contact your employer’s human resources representative or consult your own tax advisor.

Change in Conditions of Employment, Address, Marital or Family Status
Approval of your nonimmigrant status is tied to one or more of the following: your employer, your job title, your job duties, and the geographic location of your work. Leaves of absence also affect your status. If any of these factors change, please contact your employer’s human resources representative or immigration coordinator far in advance of any change (at least a month in advance). In many cases, the employer will need to file a new or amended nonimmigrant petition on your behalf with the USCIS. Please keep us apprised of any changes in your home address, your marital status (preferably prior to the marriage) or your family status (e.g. the birth of children).

All foreign nationals who are within the United States are required to notify the U.S. government of any change of address within 10 days of such a change. If you change your address, you must complete Form AR-11 and send it to the address listed on the form. Each family member must also complete his or her own Form AR-11. Form AR-11 may be downloaded from the USCIS web site at www.uscis.gov. Alternatively, you may complete the change of address online at www.uscis.gov/AR-11. Please note that foreign nationals who are under age fourteen (14) are exempt from this requirement. In addition, foreign nationals present in the United States under A or G visa status are exempt from this requirement.

Work Authorization for Your Spouse
If you are in L or E nonimmigrant status, your spouse may be able to obtain authorization to work in the United States. This is achieved by filing Form I-765 with the USCIS Service Center having jurisdiction over your state of residence. The I-765 form and relevant instructions may be downloaded from the USCIS website (www.uscis.gov). Once the I-765 application is approved, the USCIS will send your spouse a work authorization card valid up to two years. Please note that the work authorization for your spouse is tied to your nonimmigrant status. If you are in a nonimmigrant status other than L or E, your spouse may be eligible for his or her own employer-sponsored work authorization.

Passport Validity and Renewal
You must maintain a valid, unexpired passport at all times while you are in the United States. We recommend that you renew your passport six months prior to its expiration date. You may be able to renew your passport by mail through your home country’s embassy in the United States. Application requirements, processing times and fees vary by country. The web site addresses for foreign embassies in the United States may be found on the internet: http://www.embassy.org. If your valid U.S. nonimmigrant visa is in your expired passport, you will need to carry both your expired and new passports when you travel (until you obtain a nonimmigrant visa in your new passport).

Nonimmigrant Status Extensions
Extensions of nonimmigrant status may be filed with the USCIS up to six months prior to the expiration of your current status (as noted on your I-797 approval notice). The maximum period of stay allowed by the USCIS depends upon your nonimmigrant category. A maximum of 6 years in the U.S. is normally allowed for H-1B status; 7 years for L-1A status; and 5 years for L-1B status. Please note that your ability to travel outside the United States may be restricted while an application to extend or change your nonimmigrant status is pending with the USCIS and must be analyzed on a case-by-case basis. Please contact your employer’s immigration coordinator, your human resources representative, or your manager regarding extensions of your nonimmigrant status.

Important Notice: The contents of this document do not constitute personalized legal advice. This document contains general information only. Please contact your employer’s immigration coordinator or human resources representative if you have any questions regarding your individual case.


Nonimmigrant Employment in the United States Important Documents

Document Purpose Where Obtained Who Obtains When Obtained

I-797 Approval
Notice

States the dates of
employment and
nonimmigrant status
approved by the USCIS

USCIS in the
U.S.

Your
Employer

Prior to your arrival in the
U.S. (except for TN, E or
some L adjudications)

Nonimmigrant
Visa (Canadians
are visa-exempt)

Permits you to apply
for entry at U.S. border
or port of entry

U.S. Consulate You

After you receive I-797
approval notice and prior
to your arrival in the U.S.

Form I-94
(Arrival/Departure
Record/Card)

Determines the length
of your authorized stay
in the U.S.

U.S. border or
port of entry

You

During immigration
inspection upon your
arrival in the U.S. (be sure
to complete a WHITE I-94
card)

Social Security
Card

Required for
employment in the U.S.

Social Security
Administration
office

You

Apply no earlier than 14
days after your arrival in
the U.S.

Form I-9
Employment
Eligibility
Verification

Required for
employment in the U.S.

See your U.S.
employer’s
Human
Resources

Your
Employer

Upon your first day of U.S.
employment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Disclaimer

This website presents only general information not intended as legal advice. Although we encourage calls, letters and emails from prospective clients, please keep in mind that merely contacting Harter Secrest & Emery LLP (HSE) does not establish an attorney-client relationship between us. Confidential information should not be sent to HSE until you have been notified in writing by HSE that a formal attorney-client relationship has been established. Information sent to us before then may not be treated as confidential by HSE or the court.

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