If you wish to enter the U.S. for a temporary period of time, a non-immigrant visa permits you to travel to a U.S. port
of entry and request permission of the Department of Homeland Security to visit for a specific purpose.
A non-immigrant
visa differs from an immigrant visa in that the non-immigrant visa only allows a person to enter temporarily, whereas an immigrant
visa holder can enter and stay permanently.
The length of time someone can stay in the U.S. depends on the visa
status under which they are admitted (for example, specialty occupation). A person admitted in one status can often change
their status in order to stay longer--or to perform different activities. For instance, a medical school student may want
to change his or her status to an employer-sponsored non-immigrant visa once they graduate and find employment (assuming their
new employer will sponsor them). Several types of non-immigrant visas also allow a person to extend their status and thereby
extend their stay in the U.S.
The process can sometimes be confusing and complicated. Our firm can make it much
easier, determining the visa category that is right for you and assisting you with changing status from your current category
to the new category. In appropriate cases, we can also obtain legal status and work authorization for your dependent family
members.
We Assist- Working Professional Visas
- Student Visas
- Visitor
Visas
- Treaty Trader and Investor Visas
- Intra-Company Managerial Transfers
- Professional Athletic and
Artistic Performance Visas
The following is a brief list of the most commonly used temporary working visa
categories:
Visitors:
B-1 Business Visitors
This visa is for visitors who
are coming to engage in business other than “work.”
An individual who applies for a B-1 visa must have a
foreign residency overseas that he or she has no intention of abandoning. Activities that constitute legitimate B-1
activities include:1) activities of a legitimate commercial or professional nature where the person is “not for hire;”
2) the accrual of profits is mostly overseas; 3) the activity furthers international commerce; or 4) the person is directed
by a foreign employer, payment is abroad, and the services are not part of the U.S. labor market and not ones for which a
U.S. worker would have to be hired. Under the above criteria, the person may be admitted as a B-1 visa-holder where he or
she is coming to negotiate transactions or participate in a business conference. For example, missionaries may engage in their
vocation but they may not sell items, solicit donations, or receive salary or remuneration. The person can engage in commercial
transactions, negotiate contracts, consult with business associates, litigate, attend conferences, and undertake independent
research.
While business travelers often obtain multiple entry B-1 visas, each entry is typically for six months.
B-2 Visitors
This is the largest
of the nonimmigrant visa categories. It is designed for the admission of tourists. Tourists are defined in the statute as
persons coming to the United States for “pleasure.” Over the years, this visa has expanded to include persons
coming for health reasons, participating in amateur athletics, and accompanying U.S. Armed Forces personnel as dependents.
The critical factor in qualifying for this visa is that
the consular officer must be convinced that the individual is coming for a temporary period of time with a clear purpose,
and unmistakably will depart at the end of the visit. The individual must have a definite plan for his or her trip and the
ability to carry it out.
E-1 Treaty Traders
The E-1 visa allows an individual
to enter the United States on a non-immigrant basis for the sole purpose of carrying on substantial trade between his or her
country and the United States. The home country of the non-immigrant must have a treaty with the United States.
E-2 Treaty Investor
If you come to the U.S. to run an
enterprise in which you are invested, you may obtain the non-immigrant visa status of E-2 treaty investor. If you are an employee
of a treaty trader investor you may also be qualified as an E visa holder if your duties require special qualifications essential
to the business. The non-immigrant must have the same nationality as the alien employer and the home country of the non-immigrant
must have a treaty with the United States.
F-1 Students
Attracting foreign students has long been
a part of U.S. foreign policy. This is the most common of the educational study visas and is designed for persons coming to
a program at an approved institution.
If the applicant is a prospective student, he or she may attend education
at any level, but will have to show that he or she has sufficient funds to pay for the education without having to work, and
that he or she has sufficient preparation to complete the course of study. If the applicant wishes to study in the U.S., he
or she must be accepted by an approved institution that issues him/her a certificate document (SEVIS Form I-20). The
student is admitted for the duration of status according to the course of study indicated on the SEVIS I-20. After the student
has been admitted he or she will be monitored by a “designated school official” (DSO) at the institution. The
DSO is responsible for matters such as dealing with transfers between institutions, reduction of educational course load,
and on-campus or off-campus employment.
While students are allowed to work part-time under certain circumstances
during their stay in the U.S., it must not be essential for their support, or as a way of paying for their educational program.
At the completion of the program, many students remain in the United States to undertake “optional practical training”
(OPT) in work related to their study.
Strict rules govern attendance at secondary and adult education institutions,
and F-1s are barred from attending public elementary schools.
G Visas for International Workers
This
visa is for officials, employees, and dependents of international organizations that are quasi-governmental. Examples of such
organizations are the United Nations (UN), the Organization of American States (OAS), the World Bank, and the International
Monetary Fund (IMF).
There are five types of G visas. The G-1 visa is for a foreign government’s principle
representative to an international organization including his or her staff and family. The G-2 visa is for other representatives
from a foreign government to an international organization as well as for their staff and family. The G-3 visa is for a representative
to an international organization either from a government that the U.S. does not recognize or that is not a member of the
international organization, as well as to the representative’s family. The G-4 visa, the most common among the five,
is for officers and employees of international organizations and their family members. Finally, the G-5 visa is for the domestic
help, such as attendants, servants, and personal employees of other G visa holders and to their family. Special rules are
afforded to international workers, including the possibility of obtaining special immigrant (green card) status after 15 years
of service upon retirement.
H1-B Specialty Occupation
This nonimmigrant visa classification
applies to an alien who will be employed temporarily in a specialty occupation (one which typically requires a Bachelor’s
degree). There is a congressionally imposed limit of 65,000 H-1B visas issued per year; however, there are an additional 20,000
H-1B visas available to those with a Master’s degree (or higher) from a U.S. university.
Each person
must have a sponsoring employer. Moreover, there are different quotas and fees imposed depending on whether the employer qualifies
under certain categories and/or is exempt from the quota. For example, organizations such as governmental research organizations,
non-profit research organizations, institutes of higher education, and others are known as “cap-exempt” organizations
and are not subject to the H-1B visa cap.
To sponsor an H-1B visa applicant, the U.S. employer must acquire a
certification of a Labor Condition Application (LCA) from the Department of Labor (DOL) and must pay the reasonable transportation
costs home of the employer if he or she is dismissed before the end of the period of admission. A spouse and/or children may
obtain a dependent H-4 visa; however, this visa does not provide work authorization.
The H-1B can be granted for
up to two three-year increments. There is no requirement that the individual retain a foreign residence. In some circumstances,
extensions beyond the six years can be obtained. An employee may change to a similar job with a different employer
upon the filing of a new petition by the prospective employer, which is known as “portability”. The new employer
must file a “non-frivolous” (with a reasonable basis in law or fact) H-1B petition on the employee’s behalf.
An H-1B visa can be premium processed for an additional fee allowing for a decision from USCIS within 15 calendar days.
I Visas for Media Representatives
This
visa is available to individuals who are representatives of foreign media. The basis for this visa is a reciprocal arrangement
between the U.S and the applicant’s home country allowing U.S journalists to be admitted under similar conditions.
If the individual is working for foreign press, radio, film, or other information media, he or she can enter under
this category as long as he or she is employed with the foreign media. Those working in the information, documentary, or educational
programming fields also may be accorded I visa status. However, those working in entertainment programming or commercial film
may not enter in I visa status.
Individuals are admitted for “duration of status” which means that
he or she can stay as long as he or she works in the respective approved employment. A “duration of status” on
the employee’s I-94 means that an extension is not necessary. The same applies for spouses and children who are not
permitted to work.
Education: J-1 Exchange Visitors
A J visa is given to an individual
pursuing a specific, non-permanent educational or cultural objective, including but not limited to medical residency/fellowship
training, teaching and conducting research. Many holders of this visa are subject to a two-year home residency requirement,
which must either be satisfied or waived before individual can change status to H, L, or K or seek permanent residency.
A J-1 also includes a person coming to the U.S. as a student, nonacademic specialist, physician, international visitor,
camp counselor, au pair, or summer student in a travel/work program. The two-year foreign residency requirement which attaches
to many J-1s is triggered where the person’s program was financed in whole or part by the U.S. government, or by the
government of the person’s nationality or country of last residence; where the person was engaged in a field that was
designated at the time of his or her entry as in short supply or needed in the person’s home or country; or where the
person obtained medical training after January10, 1977. Waivers are available based on hardship, persecution, no objection
from the individual’s home country, and upon recommendation from an interested government agency.
L-1 Intra-company Transfers
The L-1 visa permits a multinational company
to transfer high-level and essential employees such as managers, executives, and those with “specialized knowledge”
from their international offices to their U.S. operations. The transferred person would work at the affiliate or subsidiary
in the U.S. in a managerial, executive, or specialized knowledge capacity. The employee must meet the definition of an executive,
manager or specialized knowledge individual, as provided by the law, and must have been employed abroad by the parent, branch,
or the subsidiary corporation continuously for one year out of the prior three year period. This visa is also available to
charitable, religious, or other nonprofit organizations.
The L-1 visa has no annual quota and is available
for up to five or seven years, depending on the type of employee. Spouses and children, admitted in L-2 status, are
permitted to work. L-1 visas can be premium processed for an additional fee allowing for a decision from USCIS within
15 calendar days. L-1 visas provide a direct pathway to permanent resident status for executives and managers which can be
pursued while the employee maintaining L-1 status.
O-1 Individuals of Extraordinary Ability or Achievement
This
category requires that the foreign national demonstrate that she or he has sustained national or international acclaim in
the arts, sciences, business, or athletics and that his or her achievements have been recognized as such.
Extraordinary
ability may be established either by a major international award or by at least three of the following criteria: (1) a national
or international award; (2) membership in an organization in the field for which classification is sought requiring outstanding
achievement; (3) published material about the applicant’s work in professional or major trade publications; (4) having
been called on to judge the work of others in a particular field; (5) original work of major significance in a field; (6)
authorship and publication of scholarly work in the field; (7) evidence that the applicant has been in a critical or essential
employment capacity with an organization of distinguished reputation; or (8) evidence that the applicant has or will command
a high salary in his or her field. There is no requirement to maintain a foreign residence abroad, but there must be intent
to remain in the US only temporarily. The individual must have a sponsoring employer.
An O-2 is for those who are
accompanying and assisting the O-1 artist or athlete in the furtherance of his or her performance; the skills that are to
be utilized in assisting must not be of a general nature. The O-3 visa is for the spouse and children of the O-1/O-2 visa-holder.
Spouses and dependents cannot work.
An O visa can be premium processed, for an additional fee, allowing for a
decision from USCIS within 15 calendar days. This visa, initially granted for a period of up to three years, can be
extended indefinitely in one-year increments, or in a three-year increment if a new endeavor can be established.
P Athletes and Entertainers
The
P visa is intended for athletes and entertainers. The P-1A is for an athlete who is internationally recognized or part of
a group that has achieved recognition. The P-1B is for a person who performs with, or is an integral part of, an entertainment
group that has been internationally recognized as being outstanding entertainers for a sustained period of time. The P-2 visa
is for a person performing as part of a group, or individually, or as an integral part of the performance, and is entering
temporarily and solely to perform under a reciprocal exchange program. The P-3 visa holder is entering as part of a “culturally
unique program” the program may be commercial or noncommercial and need not be sponsored by an educational, cultural,
or government agency. The P-3 visa applies to support staff as well. The P-4 visa is for the spouse and children of the primary
P visa holder; the P4 visa does not provide work authorization.
A group of performers nationally recognized “for
a sustained and substantial period” may obtain a waiver of the international recognition and one-year requirements under
certain circumstances the waiver may be obtained for a quarter of the performers or entertainers in the group if they are
replacing essential members of the group due to illness or other special circumstances.
Dual intent is permitted,
but the P nonimmigrant must have an unabandoned foreign residence. In order to apply for this visa, the person must file a
petition with the USCIS with change of status application if he or she is in the U.S. The USCIS then decides the visa petition.
R-1 Religious Workers
The R-1
visa permits religious workers to come to the U.S. to take on a religious occupation and perform services for their sponsoring
religious organization. The religious organization must already be established in the United States. Ministers, persons
working in a professional capacity for a religious organization, or others working for such an organization may enter as R-1
religious workers.
Religious occupations include activities that relate to religious functions. Examples of such
occupations include liturgical workers, cantors, and religious broadcasters. Whether a position is religious relates to the
religious function, e.g., nun or monk. The spouse and children are allowed to enter under the R-2 visa. In order to qualify,
the beneficiary must be a member of a religious denomination (for a minimum of two years before filing the application) and
the denomination must have a bona fide nonprofit religious status in the United States.
The initial period of admission
is usually three years, and can be extended for an additional two years.
TN Professionals
Similar to
the H-1B visa, TN visas are available to nationals of Canada and Mexico, as provided under the North American Free Trade Agreement,
who seek temporary entry to engage in business activities at a professional level. NAFTA provides a list of 63 eligible professions,
most of which require either a bachelor's degree or a license.
Unlike an H-1B, a TN is not limited in duration,
and the beneficiary must show that he or she will remain for a temporary period.
To establish the temporary nature
of employment, the beneficiary must demonstrate the satisfaction of the inspecting immigration officer that his or her work
or assignment in the U.S. will end at a specific time after which he or she will leave the U.S. Like an H-1B, the beneficiary
must have a sponsoring employer.
Mexicans have different requirements for entry than Canadians under this visa
but the professional occupation range for Mexican TNs is the same as for Canadian applicants. Dependents are not permitted
to work.
Visa Waiver Program
The Visa
Waiver Program allows nationals of specified countries to come to the U.S. for business or pleasure without the necessity
of applying for a visa first. Countries included in the program typically have a low rate of visa denial, and have reciprocal
arrangements with U.S. visitors. However, foreign nationals are required to have passports and there are additional requirements
governing acceptable passports. A person coming to the U.S. under the VWP must be able to overcome all of the grounds of inadmissibility,
with the exception of the visa requirement.
Under rules that went into effect on January 12, 2009, all business
visitors and tourists coming to the United States under the Visa Waiver Program will be required to obtain special electronic
travel authorization in advance of boarding. The new system, called Electronic System for Travel Authorization (ESTA), is
web-based and is administered without charge by the Department of Homeland Security.
As convenient as the VWP is,
individuals admitted under the program may not remain for longer than 90 days, and the permitted stay may be for less depending
on the inspector. This period cannot be extended and the person cannot change nonimmigrant status. The following 35 countries
participate in the Visa Waiver Program:
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Andorra
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Iceland
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Norway
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Autralia
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Ireland
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Portugal
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Austria
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Italy
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San Marino
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Belgium
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Japan
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Singapore
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Brunei
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Latvia
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Slovakia
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Czech Republic
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Liechtenstein
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Slovenia
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Denmark
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Lithuania
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South Korea
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Estonia
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Luxembourg
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Spain
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Finland
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Malta
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Sweden
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France
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Monaco
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Switzerland
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Germany
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the Netherlands
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United Kingdom
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Hungary
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New Zealand
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Find out about MANY other means of obtaining a non-immigrant visa to the U.S. by
contacting us today to arrange a consultation.
DISCLAIMER: This information is
not intended to provide solutions to individual problems, does not constitute an attorney-client relationship and should not
be construed as legal advice. Please note that laws change frequently.
