This
week you'll find part one of a two part article. The two articles provide a VERY
quick overview of the ways a person can legally come to the
US
.
More in depth discussions of each of these topics can be found in our site's
ABCs section at www.visalaw.com/abcs.html.
Introduction:
There are five (5) Major
Immigration Status/ Visa Categories and for the purposes of this paper, the
first three will be discussed.
- Non-Immigrant
Visas – temporary visitors (work, student, visitor, etc.)
- Immigrant
Visas – lawful permanent residents (green card holders)
- Asylees
and other special groups – Asylum, refugee, and TPS status holders
- Citizens
- Undocumented
– illegal immigrants
1. Non-Immigrant Visas
There
are several types of non-immigrant visas. Non-immigrant
visas are usually designated by letters. Below
are brief summaries of the most common ones:
H-1B
Visas – Available to people in “specialty occupations”
- Do
you have a university degree?
- Do
most people in your field in the
US
have university degrees?
- If
you lack a degree, do you have several years of work experience in your
field?
- Do
you have an employer in the
US
willing to hire you?
- Does
the job pay as much as similarly employed American workers?
- Does
the employer typically only hire people with university degrees for the job?
- Does
the employer guarantee that they will have continuous work available to you?
- If
the occupation requires a license, do you have the necessary license?
General Notes: Valid for up
to six years; can simultaneously have green card application pending; spouses
and children not allowed to work; do not need to maintain ties to your home
country; limited to 65,000 people per year (but many H-1B workers are exempt
from this cap and there is an additional quota of 20,000 for people holding
masters degrees or highers granted by a US university); can change employers
quickly, but need new visa approval for each new employer; self-employment
permitted in limited circumstances; if applicant lacks appropriate degree,
equivalent work experience must be demonstrated and evaluation from expert
obtained; companies employing many H-1B workers may be subject to additional
requirements; USCIS must approve before consulate can issue visa; filing fees
are expensive and vary significantly depending on the employer and the need for
expedited processing.
B-1/B-2
Visas – Available to Short term visitors for pleasure or business
- Do
you have a job that pays well and which you can leave for a few weeks on a
vacation?
- Do
you have close relatives who will be remaining in your home country when you
come to the
US
?
- Are
you coming for a short visit?
- Do
you have assets in your home country?
- Do
you own property in your home country?
- Do
you have a set itinerary for your trip to the
US
?
- Do
you have a roundtrip plane ticket?
- Do
you have close community ties in your home country?
- Do
you have money or proof of support from friends or relatives in the
US
to show adequate financial arrangements to carry out purpose of trip?
- If
you are coming for business, is the work you are doing work that would
typically be done by an American worker?
- If
you are coming for business, is the main place where profits are earned
outside the
US
?
- If
you are coming to the
US
on business, is your payment going to be made abroad rather than in the
US
?
- If
you are coming as a B-2 visitor for pleasure, are you coming for one of the
following purposes?:
- Tourist
- Social
visits to friends/relatives
- Health
purposes
- Participants
in conventions of social organizations
- Participants
in amateur musical, sports or similar events with no pay
- Spouses
and children of people in the
US
armed forces
- People
accompanying B-1 business visitors
- Coming
to marry a
US
citizen but the person plans on departing after the wedding
- Coming
to marry someone on a non-immigrant visa
- Non-spouse
partners (regardless of gender) that accompanies an E, H or L visa holder
- Parent
seeking to accompany an F-1 student visa holder
- Language
students in course of short duration when the course of study is under 18
hours per week
- If
you are coming on a B-1 business visitor visa, are you coming for one of the
following purposes?:
- Engaging
in commercial transactions not involving employment (negotiating
contracts, litigation, consulting with clients or business associates)
- Participating
in scientific, educational, professional, religious or business
conventions
- Religious
workers coming to do missionary work in the US, ministers exchanging
pulpits but who are paid by their own church abroad, and ministers on
evangelical tours
- Domestic
servants accompanying returning
US
citizens temporarily assigned to the US or who permanently reside in a
foreign country
- Domestic
servants accompanying non-immigrant visa holders if the applicant has
worked for the employer for a year or more
- Professional
athletes only receiving tournament money
- Foreign
medical students seeking to take “elective clerkship” without pay
- Serving
on a board of directors of a
US
company
- Coming
to the
US
to set up a
US
subsidiary and explore investment opportunities
- Installing
equipment as part of a contract
- Participating
in a volunteer service program if religious only
- Attending
an executive seminar
- Observing
the conduct of business
- Domestic
partner of a person on a non-immigrant visa.
General Notes: Usually can
get an authorized stay of up to six months; chances improve if a shorter trip is
requested; no USCIS approval required before consulate issues visa; not allowed
to work while on a visitor visa; visa must be granted by consular officer except
in most cases if the national is from one of more than two dozen countries
granted Visa Waiver status allowing such persons to enter the US for up to 90
days. Visa Waiver entrants cannot have their status extended and cannot change
to other non-immigrant categories while in the
US
.
F-1
Visas – Available to Students
- Do
you have a residence in your home country you don’t intend to abandon?
- Have
you been admitted to study full-time in a degree program or an English
language program?
- Is
the school where you intend to study approved for students to attend on
student visas?
- Do
you have proof of adequate financial resources to attend school full-time
without the need to work in the
US
?
- If
you are not going to the
US
an English language program, are you proficient in English?
- Will
the education you obtain in the
US
improve your career prospects in your home country?
General Notes: Must be
enrolled full-time; has limited on-campus work eligibility; off-campus
employment is prohibited unless the student fits under limited exceptions and
the employment authorization is granted by the school or the USCIS; can get up
to a year of work authorization upon completion of program; can remain in the US
for a period needed to complete the educational program; spouses and children
not entitled to work; children can enroll in K-12 education, spouse cannot study
unless he or she has a separate student visa; no USCIS approval required before
consulate can issue visa.
J-1
Visas – Exchange Visitors
- Are
you coming to the
US
to participate in an exchange program designed by the US State Department?
- Do
you have fluency in English and sufficient funds to live here if the program
does not pay J-1 visa holders?
- If
you are looking at the au pair program, have you registered with one of the
eight designated au pair programs in the
US
?
- If
you are a doctor seeking to train in the
US
, are you admitted into a medical residency or fellowship program and have
you obtained sponsorship from the Educational Commission on Foreign Medical
Graduates?
- If
you are coming for a business trainee visa, have you found an employer to
provide you with a training opportunity?
- If
you have found a training opportunity, have you found a program sponsor?
General Notes: Available to
trainees, professors or research scholars, short term scholars, foreign doctors,
camp counselors, au pairs and students in work/travel programs in the US; often
requires person to return home for two years before switching to another visa;
time limits vary depending on type of program (training – 18 months; scholars
and professors – up to three year; au pairs – one year; medical residents
– up to seven years; students are not limited); students eligible for up to 18
months (36 if post-doctoral work) of post-graduate work authorization; students
must be enrolled full-time; spouses and children entitled to work authorization;
no USCIS approval required before consulate can issue visa.
O
Visas – People with extraordinary ability in the sciences, arts, crafts,
education, business, athletics or any field of “creative endeavor”
- Are
you one of the top people in your field in your country?
- Do
you have an employer, manager or agent in the
US
who can sign your application?
- Is
there a peer organization willing to say that they have no objection to your
being granted an O-1 visa?
- Can
you show that you have won a major international award OR at least three of
the following?:
- 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, as judged by recognized national or international experts in
their disciplines or fields;
- 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, which shall include the title, date, and author
of such published material, and any necessary translation;
- 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;
- Evidence
that the alien has commanded and now commands a high salary or other
remuneration for services, evidenced by contracts or other reliable
evidence.
General
Notes: Can be admitted for up to three years at a time; no need to maintain
residence abroad; can have green card application pending while on O-1 status
without problems; USCIS approval required before the consulate can issue visa.
L
Visas – Intra-company Transfers
- Are
you coming to the
US
to work for a company that has offices both in the
US
and outside the
US
?
- Have
you worked for the company abroad full-time for at least one year of the
last three?
- Are
you coming to the
US
as an owner, executive, manager or an employee with special knowledge of the
company’s operations?
General
Notes: Seven year stays for owners, executives and managers; five year stay for
special knowledge employees; easy to get green card for owners, managers and
executives; spouses are allowed to work; USCIS must approve before consulate can
issue visa; difficult for workers working on a contract basis at other
employers.
E
Visas – E-2 Treaty Investors and E-1 Treaty Traders
- If
you are seeking an E-1 Treaty Trader visa, are you currently working for a
business that has a substantial volume of trading business with the
United States
(more than 50%)?
- Are
you a national of a country that has a bi-lateral trade treaty with the
United States
?
- Are
you coming to the
US
to work as an owner, executive, manager or “essential skills” employee?
- Is
at least 50% of the business owned by foreign nationals who are not US
citizens or permanent residents?
- For
E-2 visas, are you investing a “substantial amount” of money in a
commercial investment in the
US
?
General
Notes: No limit on total time in E visa status; spouses can work; no initial
USCIS approval required; permanent residency applications do not adversely
affect E visas. More information
about the E visas and a list of treaty countries may be found at:
http://www.visalaw.com/abcs.html
R
Visas – Religious Workers
- Are
you coming to the
US
to work as a minister or work in a religious vocation or occupation?
- Have
you been a member of the religious denomination for at least two years?
- Is
the employer a “nonprofit” organization (most churches, synagogues and
mosques qualify as well as institutions affiliated with them)?
General
Notes: Valid for up to five years; convertible to a green card after two years
of work in R-1 status unless the applicant has worked in the job for two years
prior to entering the US; no USCIS approval required for consulate to issue
visa.
TN
Visas – NAFTA Visas for Canadians and Mexicans
1.
Are you coming to the
US
to work in an occupation listed within the NAFTA occupation schedule?
http://www.visalaw.com/03dec3/2dec303.html
2.
Are you a citizen/ national of
Canada
or
Mexico
?
3.
Do you meet the minimum job requirements for that position as
listed in the TN NAFTA Schedule?
General
Notes: Valid for a year; can be extended in one year increments; is a
non-immigrant visa, therefore the beneficiary cannot have immigrant intent; is
employer specific; there are no prevailing wage requirements; experience
cannot be used as a substitute for the degree requirement; there is no annual
limit to the visas issued; Canadians can apply for the status at the port of
entries with “TN offer letters” and Mexicans can apply directly at the US
Consulates; extensions and change of status applications may be filed in the US
(only at the USCIS’ Nebraska Service Center).
This list is not an exclusive
list of all the non-immigrant visas. Currently
there are over 25 major non-immigrant visa classifications and the above
discussion includes only the most common ones.
More information about these and other non-immigrant visas may be found
at our website http://www.visalaw.com/abcs.html.