What is a Nonimmigrant or Temporary Visa?
B-1/ B-2 visitor’s visas
The visitor’s visa is required for all visa applicants wishing to travel to the US on a business or pleasure, unless they are from a country with visa waiver status. Typical visitor visas are granted for a 6 month period, extendable to 1 year per visit. Applicants for visitor visas must show that they qualify under provisions of the Immigration and Nationality Act. The presumption in the law is that every visitor visa applicant is an intending immigrant. Therefore, applicants for visitor visas must overcome this presumption by demonstrating that:
- The purpose of their trip is to enter the U.S. for business, pleasure, or medical treatment;
- They plan to remain for a specific, limited period; and
- They have a residence outside the U.S. as well as other binding ties which will insure their return abroad at the end of the visit.
L – the international employee visa
L-1 nonimmigrant status is an employer specific, employment-authorized nonimmigrant status available to a foreign national employed abroad who seeks admission into the United States to work for a qualifying affiliate U.S. employer in either managerial/executive capacity (L-1A) or specialized knowledge capacity (L-1B).
Obtaining L-1 nonimmigrant status requires the U.S. employer to file a Petition for Nonimmigrant Worker with the Immigration and Naturalization Service. The INS adjudicates this petition, ideally, in four to six weeks, although the time frame may be longer due to persistent backlogs. Upon approval, the prospective employee may apply for an L-1 visa at his or her respective U.S. consulate. L-1 status is generally approved for an initial period of three years. However, if the U.S. employer is a start-up company, L-1 status is originally granted for only one year. L-1A (manager/executive) status can be extended up to a statutory limit of seven years.
H1B – the professional’s visa
The most common dual-intent visa is an H visa. The H visa is available if you have a U.S. bachelor’s degree or its equivalent and the job you are performing requires a bachelor’s degree in order to do it. An individual can stay in the U.S. for a maximum of six years in this category. As with the L visa, an individual must leave the U.S. for one year before he or she can be readmitted in H visa status. Both the H and the L visa count time in the other category against the time cap.
The H visa is a cumulative visa; in other words, you cannot change employers and get a new six-year period with each employer. There is an annual cap on the number of H visas issued. Over the last few years, there have been periods of several months where H visas have not been available. The timing in when you apply for your H visa is something to be discussed once your plans are more settled.
H-3 – Training visa
H-3 visas are for trainees in any field of endeavor, except for physicians who come to the USA to receive graduate medical education or training. The petitioner is the employer; the foreign visitor is the beneficiary/trainee. The employer must show: (1) the proposed training is not available in the beneficiary’s own country; (2) the beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed; (3) the beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; (4) and the training will benefit the beneficiary’s career outside the U.S.
O-1 – extraordinary ability visa
This is a temporary visa for aliens of extraordinary ability in the arts, sciences, or business. To qualify, an alien must have at least three of the following forms of documentation:
- Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members;
- Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought;
- Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
- Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;
- Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media;
- Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
- Evidence that the alien has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
Applicants for the O-1 visa must also show other required evidence to meet other factors under regulation and law.
E – the investor’s or treaty trader visa
The Immigration and Nationality Act provides nonimmigrant visa status for a national of a country with which the United States maintains a commerce treaty and who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital.
F-1 – the student visa
With the exception of Canadian citizens, for whom the requirement of a visa is waived, all F-1 students must first obtain a visa before applying for entry to the U.S. An individual cannot apply for the F-1 visa without an I-20 form obtained by their school and presented to the consulate. The F-1 visa also requires that the student demonstrate that s/he has the ability to finance this first academic year with immediately available assets. This is done through submitting evidence of bank accounts, letters from the school (in the case of a scholarship or grant), or documents from sponsors
If already in the U.S., the student may apply for a change of status to F-1 from another nonimmigrant visa category. As with all students, such an individual will then be required to demonstrate a permanent residence in the home country, bona fide nonimmigrant intent, and sufficient financial resources to study in the U.S.
Problems arise when the current nonimmigrant visa is a B-2 (visitor’s visa) which does not denote that the alien is a ?prospective student.? Failure to disclose such intent to the consular officer is likely to result in disturbing consequences at a later date, for it is a common and long-standing INS policy to deny a request for a change of status from B-1/B-2 visitor status to F-1 or M-1 visa status.
I – Media/Journalism visas
The I visa is for representatives of the foreign press, film, radio or other foreign informational media, entering the U.S. on behalf of a foreign employer to continue correspondence and vocation. ?I? visa holders may remain in the U.S. as long as they are assigned to work here by their foreign office and there is no requirement that the visa holder maintain a residence abroad.
J-1 & Q – exchange visitor visas
The “J” visa is for educational and cultural exchange programs designated by the Department of State, Bureau of Consular Affairs, and the “Q” visa is for international cultural exchange programs designated by U.S. Citizenship & Immigration Services (CIS, formerly known as INS).
The “J” exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences. Participants include students at all academic levels; trainees obtaining on-the-job training with firms, institutions, and agencies; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; professional trainees in the medical and allied fields; and international visitors coming for the purpose of traveling, observing, consulting, conducting research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs. The “Q” international cultural exchange program is for the purpose of providing practical training and employment, and the sharing of the history, culture, and traditions of the participant’s home country in the United States.
K-1 – fiance visa
If your fiancé(e) is not a citizen of the United States and you plan to get married in the United States, then you must file a petition with INS on behalf of your fiancé(e).
After the petition is approved, your fiancé(e) must obtain a visa issued at a U.S. Embassy or consulate abroad. The marriage must take place within 90 days of your fiancé(e) entering the United States. If the marriage does not take place within 90 days or your fiancé(e) marries someone other than you (the U.S. citizen filing the Petition for Alien Fiancé), your fiancé(e) will be required to leave the United States. Until the marriage takes place, your fiancé(e) is considered a nonimmigrant. A nonimmigrant is a foreign national seeking to temporarily enter the United States for a specific purpose. A fiancé(e) may not obtain an extension of the 90-day original nonimmigrant admission.
If your fiancé(e) intends to live and work permanently in the United States, your fiancé(e) should apply to become a permanent resident after your marriage.
K-3 – waiting visa
To reduce the separations immediate family members of U.S. citizens may experience while waiting abroad for an immigrant visa, U.S. Citizenship & Immigration Services implemented a new K nonimmigrant visa provision. The rule expands the K visa status, currently available to fiancé(e)s of U.S. citizens, to include the spouse of a U.S. citizen, who is waiting abroad for an immigrant visa, and the spouse’s children. This will allow them to enter the United States as nonimmigrants, re-unite with their family here, and then apply for immigrant status while in the country.
Under this new nonimmigrant visa classification, spouses of U.S. citizens may be granted K-3 nonimmigrant status, and the spouse’s unmarried children (under 21 years of age) may be granted K-4 nonimmigrant status. Obtaining a K-3/4 visa is not required, however. Spouses of U.S. citizens and their children may skip applying for a K visa and directly obtain their immigrant visa abroad from the Department of State.
TN – visas for citizens of Mexico and Canada
Each application for TN professional status requires:
- A statement (in the form of a letter or contract) of the professional-level activity listed in Appendix 1603.D.1, of the North American Free Trade Agreement in which the applicant will be engaging and a full description of the nature of the job duties the applicant will be performing, the anticipated length of stay, and the arrangements for remuneration;
- Evidence that the applicant meets the educational qualifications or alternative credentials for the activity listed in the statute and evidence that all licensure requirements, where required by state or local law, have been satisfied.
R – Religious worker visas
This category is for ministers or persons working in a professional capacity in a religious occupation or vocation, for a religious organization with a background in the religious denomination for which s/he is to be employed under the R visa. This visa is good for 3 years and may be extended up to 5 years.
S – snitch visa (for police informants)
The S visa, sometimes referred to as the “Snitch Visa,” includes two categories – the S-1 and the S-2. S-1 is for a person who has important information on a criminal organization and whose presence is needed by the law enforcement authorities investigating or prosecuting the matter. An example of a criminal organization would be a drug trafficking cartel. The S-2 is for a person supplying key and reliable information to law enforcement regarding a terrorist organization, and in doing so, is placing him or herself in danger.
Thus, S-2 is a type of witness protection provision. The element of danger is not required for the S-1, but it is likely that many S-1s are also in vulnerable positions and may be able to obtain some type of appropriate protection.
U – crime victim visa
The U visa was created by the new Trafficking Act which amended 1994’s Violence Against Women Act’s immigration provisions. To qualify for a U visa, the applicant
- must have been victimized by certain criminal activity that took place in the U.S. or violated U.S. law;
- as a result of this criminal activity, the applicant suffered ?substantial physical or mental abuse?;
- the applicant possesses information concerning the criminal activity; and
- the applicant has a certificate or other affirmation by a designated official that she ?has been helpful, is being helpful, or is likely to be helpful? to an investigation or prosecution of the criminal activity.
The U visa provides the applicant with the ability to adjust their status to permanent residency after three years in U status. Derivatives may qualify under the U visa if extreme hardship can be demonstrated. U visa holders are authorized to work and do not have to be married to their abuser but may qualify as a victim under a myriad of criminal activity including domestic violence violations.
Ask us about interim relief now available for potential U visa holders.
T – trafficking victim visa
The T visa was created by the 2001 Trafficking act and is specifically designed for victims of severe trafficking who are present in the US due to such severe trafficking and who have complied with any reasonable request in an ongoing or potential investigation or prosecution of a trafficking smuggler. The victim must also show that s/he will suffer extreme hardship if removed from the U.S. The requirements are more strict than those of the U visa.
V – Visa for Spouse of LPR waiting abroad
The new V1 and V2 nonimmigrant visas allow certain spouses of lawful permanent residents and the children of those spouses to travel to and from the US and to reside in the US while they wait for the final processing of their immigrant visa.
The V visas for adults are valid for multiple entries for ten years. Holders of the V visa are eligible to apply for employment authorization so they can work lawfully in the U.S. while awaiting their immigrant visa approval.
Obtaining Permanent Residency (Green Card)
MOST COMMON WAYS TO OBTAIN A GREEN CARD
- Family-Based Immigrant Visa
- Immigrant Visa for Battered/Abused Immigrants
- Asylum/Refugee Immigrant Visas
- Employment-Based Immigrant Visas
- National Interest Waivers
Each of these options are explained in more detail below.
FAMILY-BASED IMMIGRANT VISAS
People who want to become immigrants are classified into categories based on a preference system. The immediate relatives of
citizens, which includes parents, spouses and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by the INS. An immigrant visa number will be immediately available for immediate relatives of
Preference Category #1: Children of
Citizens over the age of 21
Preference Category #2: Spouses, Kids under 21, of Legal Permanent Residents (LPRs)
Preference Category #3: Married sons and daughters of
Preference Category #4: Brothers and sisters of adult
What are Priority Dates? Priority dates determine the order of availability for visas. For family-based petitions, the priority date is the date the preference petition (I-130) is filed with INS. For employment-based petitions, the priority date is the date labor certification is filed or the date that the preference ptition si filed with INS uinder the 1st preference or any category not requiring labor certification.
IMMIGRANT VISA FOR ABUSED/BATTERED IMMIGRANT
Survivors of domestic violence (physical, psychological, and/or financial abuse) who are married to their
citizen or Lawful permanent resident abuser may be able to obtain an immigrant visa and eventual green card without the abuser’s consent or knowledge. An abused immigrant must show that s/he entered into a bona fide marriage with a USC or LPR, is a victim of extreme cruelty perpetrated by their spouse, and is a person of strong moral character.
- Abused immigrants with pending adjustment of status cases (green card cases based on marriage or other relative sponsorship) are also eligible for this visa as are survivors who are currently outside of the
- Abused immigrants do not have to be married at the time of application if the survivor can show that the divorce was a direct result of the violence in his/her marriage and occurred within the past two years.
IMMIGRATING AS AN ASYLEE OR REFUGEE
Asylum may be granted to people who are already in the
and are unable or unwilling to return their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
- If you are granted asylum, you will be allowed to live and work in the
. You also will be able to apply for permanent resident status one year after you are granted asylum.
- To be eligible for asylum in the
, you must ask for asylum at a port-of-entry (airport, seaport or border crossing), or generally must file an application within one year of your arrival in the
with certain exceptions. You may apply for asylum regardless of your immigration status, meaning that you may apply even if you are illegally in the United States.
Refugee status, as opposed to asylee status, is asked for outside of the
. If you do not qualify for asylum, but fear being tortured upon returning to your homeland, you can apply for consideration under the Torture Convention.
EXTRAORDINARY ABILITY & EMPLOYMENT-BASED IMMIGRANT VISAS
Extraordinary Ability Visas
An individual can establish extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Furthermore:
- the individual seeks entry to continue work in the area of extraordinary ability, and
- his or her entry will substantially benefit prospectively the
. No job offer is required.
Evidence to demonstrate ?sustained or international acclaim? could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar, or Grammy). If the applicant is not the recipient of such an award, then documentation of any three of the following is sufficient:
- Receipt of lesser nationally or internationally recognized prizes or awards;
- Membership in an association in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts;
- Published material about the person in professional or major trade publications or other major media;
- Participation as a judge of the work of others;
- Evidence of original scientific, scholastic, artistic, athletic, or business-related contributions of major significance;
- Authorship of scholarly articles in the field;
- Artistic exhibitions or showcases;
- Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation;
- High salary or remuneration in relation to others in the field;
- Commercial success in the performing arts;
Outstanding Professors and Researchers
An individual must establish that he or she is an outstanding professor/ researcher by demonstrating that he or she is recognized internationally as outstanding in a specific area and has three years of prior experience in teaching or research in the academic field.
This individual must be sponsored by an institution for a tenure (or tenure track) teaching position or a comparable position at a university or institute of higher education to conduct research. The individual may also be sponsored by a private employer to conduct research if it employs at least three persons full-time in research activities, and the department, division, or institution has achieved documented accomplishments in an academic field.
Evidence that the professor/researcher is recognized internationally as outstanding in the academic field must include at least two of the following:
- Receipt of major prizes or awards for outstanding achievements;
- Membership in an association that requires outstanding achievement;
- Published material in professional publications written by others about the applicant’s work;
- Evidence of the person’s participation as a judge of the work of others;
- Evidence of original scientific research;
- Authorship of scholarly books or articles in the field;
Multinational Executives and Managers
An individual may be able to classify as an executive or manager if he or she is to be employed in an executive or managerial capacity by a U.S. parent, subsidiary, branch, or affiliate of a foreign corporation. The alien must further establish that he or she worked in a managerial or executive capacity for one year prior to his or her entry into the United States in the parent, subsidiary, branch, or affiliate of the U.S. entity.
Employment-Based Immigrant Visas
Foreign nationals who are skilled or educated?and who have job offers?have the possibility of immigrating to the
United States Employment-based immigration is limited by statute to 140,000 persons per year (see Overview of Legal Immigration to the United States). The process is three-fold: (a) the employer must first obtain a ?labor certification? from the U.S. Department of Labor (DOL); (b) the employer applies for immigrant visa classification under the employment-based second or third preference; and, (c) the foreign national applies for lawful permanent residency or the ?green card? through adjustment of status in the United States or consular processing overseas.
Some employees may obtain a green card through their employer under the Labor Certification process. When you apply for permanent immigration through employment, you are saying to the government that you intend to work for your employer for the foreseeable future. You are not bound to the company for the rest of your life, nor is the company obligated to provide you with lifetime employment. However, the government will look at your behavior to determine your intent. In other words, if you get your green card on Monday and on Tuesday you quit, the government may think that the job offer to you was not real. This can lead to the government investigating you, and, possibly, seeking to deport you.
The permanent resident process is almost completely petitioner-driven. That means that the person or company who petitions for you has control over your petition. You cannot force an employer or a relative to file on your behalf. Once a petition is filed, your employer or relative can withdraw or cancel your petition at any time before you get your permanent resident status. I cannot advise you about your family situation. However, if you are considering employment-based immigration, find a position you like with people you can work with for the foreseeable future. Most employers will not continue with the permanent resident process if you quit or are fired from your job.
In most cases the employer must obtain labor certification from the DOL confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired. To establish this, the employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. citizen or permanent resident qualified to take up the position. The employer also should have offered the position at the normal or prevailing wage.
The key to the labor certification process is for the employer to decide true minimum requirements for the position. The requirements generally must be normal to the occupation and not more than the worker had when hired into the job offered. Nor can the requirements be tailored to the foreign worker’s specific skills and qualifications.
A test of the labor market is generally done through a three-day local newspaper advertisement, or one-day advertisement in a national journal or newspaper, and an internal posting. Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons. A labor certification is only a first step in the permanent resident process to obtain the green card. It is a lengthy process and does not give authorization for a foreign national to remain or work in the United States, unless he or she is in another nonimmigrant visa status that authorizes work such as an H-1B visa. In some regions, the process could take more than two years.
Can Labor Certification be Avoided? Labor Certification is only required for individuals applying under the employment-based second and third preference categories. Individuals who qualify under the employment-based first preference do not require a labor certification. The three categories under the first preference are: (i) Persons of Extraordinary Ability; (ii) Outstanding Professors and Researchers; and (iii) Multinationals Executives or Managers.
The approved labor certification is filed with the U.S. Citizenship & Immigration Services (CIS) along with other paper work to determine whether the foreign national qualifies for one of the following categories of sponsorship:
- Employment-Based Second Preference
Members of the professions with advanced degrees or the equivalent, or aliens of exceptional ability in the sciences, arts or business;
Employment-Based Third Preference – Unskilled WorkerCategory
Professionals, skilled workers (jobs requiring two years or more training or experience), or unskilled workers (jobs requiring less than two years’ training or experience). It will take many years to immigrate under the third preference unskilled category. Strategies to avoid the third preference unskilled classification whenever possible are imperative.
The employment-based second and remaining third preferences are also backlogged for China and India. The third preference is more backlogged than the second preference. It is, therefore, important whenever possible to classify the foreign worker from China or India in the second preference rather than the remaining third preference.
National Interest Waivers
The time-consuming labor certification procedure may be avoided altogether even under the second preference if the foreign national can establish that the job offer requirement should be waived in the national interest. The individual must demonstrate that he or she would be doing something so significant as to benefit the U.S. national interest.
In a recent decision of the Administrative Appeals Office of the Immigration and Naturalization Service (In Re New York State Department of Transportation, Int. Dec. 3363), a three-prong test was established:
1.The person must seek employment in an area of substantial intrinsic merit;
2.The person must demonstrate that the proposed benefit will be national in scope; and,
3The person must further demonstrate persuasively that the national interest would be adversely affected if a labor certification was required for the beneficiary (i.e., that the national benefit offered outweighs the inherent national interest in the labor certification process).
Remaining Important Considerations
As mentioned above, the permanent immigration process has become very lengthy and it is impossible to say exactly how long it will take. Given the uncertainty of the situation, you might want to delay applying for an H or L visa until you are ready to apply for the green card.
Other visa options, which may allow you to test out possible employment situations, include: F-1 practical training, J-1 exchange visitor programs (note: be very careful that you are not subject to the two-year home residence requirement), O visas for individuals of outstanding abilities, and, if you are a citizen of Mexico or Canada, TN visas. These visas have their problems. The qualifications for some of them are more difficult than for the H visa, and they are all temporary intent visas. However, they do offer you the flexibility to search for a job you can live with without using up the time limits present on the major dual-intent visas.
As with most things in this world, there is no perfect solution. What option is best for you depends on your circumstances. Immigration laws are confusing and appear to be contradictory. You should call and make an appointment after you have had a chance to think about your options.
Is it possible to have a temporary visa (visitor’s or work visa) and apply for a green card at the same time?
Usually, a person cannot hold a temporary visa and apply for a green card at the same time. However, there are limited exceptions to this rule. The rule is commonly referred to as the the “doctrine of dual intent.”
THE PROBLEM OF DUAL INTENT
All people who enter the United States on nonimmigrant visas are considered to be here temporarily. The law believes that they intend to return to their home countries at the end of their stay in the U.S. If you are here on a temporary nonimmigrant visa and you start the permanent resident process, the law generally believes that you have ?lost? your intent to stay temporarily because you now wish to immigrate (i.e., stay permanently in the U.S.). Normally, if you remain inside the United States and do not need to renew your temporary visa, this change of intent is not a problem. However, if you must travel internationally or you must apply for an extension of your present stay, you could have problems.
There are a few nonimmigrant categories that allow a person to have dual intent, that is, to intend to be here temporarily now but eventually to immigrate. In these categories, international travel and extensions of stay are not a problem. However, these categories have limitations, which means that you have to do some planning. The most common dual-intent visas are the H, L, and E visas. E visas are available to citizens of certain countries with whom the United States has certain treaty agreements. There are many requirements for this visa and I will not discuss them here. However, if you own or are employed by a company owned by citizens of your country, please call me to see if this may be an option for you. There is no limit as to how long you can remain in the U.S. in E status, but you must renew that status about every two years.
The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if what immigration options are available to you and to determine how any recent changes in the law could affect your situation.
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