Place of residence

As a general rule, you must apply for a nonimmigrant visa(NIV) at the US consular district in which you have residence.“Residence” is defined as your place of general abode; your principal, actual dwelling place in fact, without regard to intent. In other words, it is the place where you normally reside and under most common circumstances from which you conductyour life.

So for example, if you were a Ghanaian student pursuing a course of study in Canada, you may be able to apply for an NIV in the US consular district in Vancouver since your actual dwelling place will be in Canada. The expression “without regard to intent” means that the rule will apply even if you do not intend to make Canada your permanent home.

Place of Physical presence or out-of-district application

You may also apply for a NIV at a place where you are physically present, though you do not have residence there. This is called an out-of-district application. “Physical presence” isdefined as the fact of being in a place at a given moment. Therefore, though yourplace of general abode may be located in one place, you may be physically present in another.

Therefore, if you visited Canada on a short term visa to visit a relative or for tourismyou may be physically present in the Canada and thereforebe entitled to apply for a NIVat the U.S. consulate in Vancouver, even though your place of ordinary residence is in Ghana.

Difficulties with making an application at a place where you are physically present

It may be difficult for you to obtain a NIV at a US consular district where you are physically present.First, it may be difficult for you to overcome the burden of proof required by law since you may find it more difficult to demonstrate your qualifications for the visa in a US consular district where you are physically present than in your home country. For example, the consular officer in Canada may be unfamiliar with your local conditions in Ghanaand may thus be unable to adequately assess your eligibility for the visa. Again, the consular officer may view your application with suspicion as being made to conceal a possible fraud or at best,forum shopping.

Country of Nationality

In certain cases, you may be directed to apply for a NIV in your country of nationality. This will be the case if youwerepreviously admitted on the basis of a nonimmigrant visa and remained in the U.S. beyond the period of stay authorised. In such a case, the consular district will decline to process your application and will directyouto apply for the visa in your country of nationality unless you can establish that extraordinary circumstances exist which warrant that your application be considered there.

So for example,if you were a Ghanaian student studying in Canada, you will be entitled to make your application at a US consulate district in Canada. However, if the consulate found that you had overstayed a previous US visa or failed to maintain nonimmigrant status by engaging in authorised activity whiles in the US,the consulate will refuse toprocess your application, andwill inform you to make your application in Ghana, your country of nationality.

Conclusion

Theplace where you may generallymake an application for a NIV is the consular district in which you reside. Nonetheless, you may make an application at a consular district in which you are physically present, though that may not be your place of residence.However, if you have previously overstayed a NIV you can only apply for a visa in your country of nationality unless you can establish that extraordinary circumstances exist which justify your application to be considered at where you are making the application.

By Emmanuel Opoku Acheampong

Disclaimer: This article only provides general information and guidance on U.S. immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information. The writer is an immigration law consultant and a practicing law attorney in Ghana. He advises on U.S., UK, and Schengen immigration law. He works part-time for Acheampong & Associates Ltd, an immigration law firm in Accra. He may be contacted atacheampongassociatesgh@gmail.com