Immigrant/Non-immigrant Visa

Non-Immigrant Visas

A citizen of a foreign country who seeks to enter the United States generally must first obtain a U.S. visa, which is placed in the traveler’s passport, a travel document issued by the traveler’s country of citizenship. Certain international travelers may be eligible to travel to the U.S. without a visa if they meet the requirements for visa-free travel.

The type of visa you must obtain is defined by U.S. immigration law, and related to the purpose of your travel. There are two main categories of U.S. visas: 1) Nonimmigrant visa: for travel to the U.S. on a temporary basis 2) Immigrant visa: for travel to live permanently in the U.S.

E-1/E-2 Visa (Treaty Trader/Treaty Investor)

The E-1 Visa designed to advance trade and investments between the United States and foreign nations with which the U.S. has signed treaties, the E-visa category has been established to facilitate the temporary work authorization of aliens for the purpose of enterprise. Investors, business owners, managers and essential employees are able to obtain a Trade Investment Visa and perform work here in the United States. The goal of these visas is to effect reciprocal economic benefits for the U.S. and treaty signing countries. Providing a means for substantial investors to establish businesses in the United States creates a continuous exchange of goods and/or services between the U.S. and foreign nations. Aliens who are citizens of treaty signing nations (Treaty Foreign Nationals) are eligible to receive an E-1 or E-2 visa, allowing that individuals to live and work lawfully in the United States for an extended period of time.

The two most common uses of the E-2 visa are for:

  • Investors
  • Employees, Executive, Supervisors and Essential employees.

As an investor, the Foreign National applicant will generally be required 1) to purchase an existing business or enterprise, 2) to invest into an existing business or enterprise 3) invest into a new business enterprise.

Where the E-2 Visa applicant is an employee rather than an investor that employee must be of the same Nationality of the investor OR Company/Enterprise that has majority ownership of the Business/enterprise. The Employee can be a Manager/supervisor or a worker with special skills making him or her essential to the running of the business.

  1. A supervisory position grants the employee ultimate control and responsibility for a large proportion of the enterprise’s operations or a major component of the enterprise. It does not involve the supervision of low-level employees. The supervisory element of the employee’s position must be a principal and primary function, and not an incidental or collateral function.
  2. The essential nature of an alien’s “special skills” is determined by assessing the degree of proven expertise of the alien in the area of specialization, the uniqueness of the specific skills, the length of experience and training with the firm, the period of training needed to perform the contemplated duties, and the salary the special expertise commands.

Unlike the H1B, there is no Quota on the number of employees permitted. The E-2 employee visa can be filed directly at the Consulate of the Home Country of the applicant without the prior approval of the USCIS or can be filed as a change of status if the applicant is in the United Sates. The E-2 Visa can be approved in a matter of a few weeks if the applicant is filing under premium processing in the United States. The Spouse of the E-2 Investor is eligible for an employment Authorization Card, (Work Permit) allowing the spouse the ability to work legally in the United States at any legal job. The E-2 Visa must be extended every Five (5) years however there is NO limit in extensions and an applicant may remain in E-2 Visa for an indefinite time, as long as the investment enterprise is ongoing.

F-1 Visa (Student)

An alien who has a residence in a foreign country which he/she has no intention of abandoning, who wishes to come to the United States to pursue a course of study at an academic institution accredited by the USCIS, may qualify for an F-1 visa. The alien must have a valid educational purpose for coming to the United States, and must be able to support himself or herself while in the United States without working. All students are given permission to be in the United States for “duration of status”, that is for the period of time needed to complete the educational program plus 60 days. At the end of the course of a period of work authorization may be requested for the purpose of gaining experience in the field of study, known as “practical training.” If qualified, the student may also change non-immigrant status to a temporary non-immigrant work visa or adjust status to a permanent resident visa.

H-1B Visa (Professional Occupations)

The H1B Professional Work Visa is available to foreign national workers whose position requires at least a Bachelor’s degree (or its equivalent) to perform. The lack of a college education does not necessarily preclude the applicant; however he or she does need to show a combination of work and experience that would be considered equivalent to a Bachelors degree in order to qualify. Skilled professional that work in specialty occupations such as accounting, computer programming, web designing, engineering, doctors, nurses, scientists, lawyers and architects are eligible to apply for an H1-B Visa. A maximum of 65,000 such visas are issued each year so it is critical to submit one’s application in a timely manner. In the event that the H1-B quota has been reached, the applicant must wait for the next fiscal year to begin (October 1st) for his or her application to be considered; however, the USCIS will allow you to file as early as April 1st of that same year. University employees, non-profit entity workers, some researchers, and government agents are exempt from the quota and may still apply even after 65,000 visas have been issued.

The maximum duration of this type of work visa is 6 years. However, H1-B holders who have a Labor Certification application pending for over 365 days or have approved immigrant visa petitions can stay beyond the 6 year limit. Unlike other non-immigrant visa, the H1B is a “dual intent” visa, meaning that it will not be denied simply because the applicant has applied for permanent residency. A spouse or unmarried child of an H1-B visa holder is entitled to an H-4 visa, allowing them to remain in the U.S. for the same length of time as the principal. These dependents cannot accept employment but may attend school in the United States.

J-1 Visa (Academic Trainee)

Eligibility for a “J” Visa requires an applicant to be a bona fide trainee. The applicant must be a student, professor, research scholar, on-academic specialist, foreign physician, teacher, counselor, au pair or summer student in a travel/work program. The applicant must be entering the U.S. to participate in an exchange visitor program that has been designated by the U.S. Information Agency and whose participation includes such purposes as teaching, studying consulting, training. Certain J Visa holders as subject to a requirement that they must return to their home country of last residence for a two year period upon completion of their training in the U.S. Applicant may apply for a waiver of this 2-year home residence requirement.

K-1 Visa (Fiancé)

The K-1 visa is a hybrid visa that enables to a U.S. citizen to bring their fiancé to the U.S. with the intention of getting married and pursuing permanent residence. The K-1 Fiancé Visa allows a U.S Citizens only (not Legal Permanent Residents) to apply for permission with a U.S Consulate abroad to allow his or her Fiancé to enter the U.S with a Fiancé visa. The U.S Consulate abroad will only review this application after there has been an approved petition by the USCIS which must be applied inside the United States by the US Citizen on behalf of his or her fiancé.

The marriage must take place within 90 days of the fiancé entering the United States. If the marriage does not take place within 90 days or the fiancé marries someone other than the U.S. citizen filing USCIS Petition for Alien Fiancé, the fiancé will be required to leave the United States. Until the marriage takes place, the fiancé is considered a nonimmigrant. A nonimmigrant is a foreign national seeking to temporarily enter the United States for a specific purpose. A fiancé may not obtain an extension of the 90-day original nonimmigrant admission.

If the marriage does not occur, the beneficiary must leave the U.S. within their 90-day period of authorized admission. If they fail to leave within this time, they become subjected to deportation.
You may also apply to bring the fiancé’s unmarried children, who are under age 21, to the United States.

K-3/K-4 Visa (Spouse and Unmarried Minor Children of U.S. citizens)

Often, the process of immigrating based on a marriage to a U.S. citizen spouse can take quite some time. In an effort to shorten the proves of family unification, USCIS will grant a K-3 and K-4 visa. The spouse and children of a U.S. citizen may be admitted to the U.S. as K-3 and K-4 nonimmigrants to complete their process for permanent residence.

Once in the U.S., the K-3 or K-4 nonimmigrant must file the application to adjust status to lawful permanent residence. These applications are submitted once the I-130 visa petitions have been approved by USCIS.

L-1A/L-1B Visa (Intra-company Transferee Executive or
Manager/Specialized Knowledge)

L-1 intracompany transfer visas are for individuals who are working for multinational companies and are coming to the U.S. to work for a company in the U.S. that has a legal relationship to a company abroad. The L-1 category offers a number of advantages over other visa categories. First, there is no annual limit on the number issued. Second, it is a dual intent visa which means that one may pursue permanent residency without affecting the ability to enter on or extend the L-1 visa. Third, for L-1A managers and executives there is an easier path to lawful permanent residency.

To qualify for L-1 status, the applicant must have been continuously employed abroad for one out of the three previous years for a foreign company that has a qualifying legal relationship to a company in the U.S.

The qualifying legal relationship can be a parent, affiliate, subsidiary or branch of the U.S. company. The employer may be a company or other any other legal entity including a for-profit, non-profit, religious, or charitable organization. Both the U.S. and the foreign company must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity.
For L-1A visas, the applicant must be coming to the U.S. as a manager or executive. For L-1B visas, the individual must be coming to the United States because he or she possesses specialized knowledge. “Specialized knowledge” means that the applicant has a special knowledge of the company’s products, specialized skills, or particular knowledge about the application of the product in world markets. Specialized knowledge can also include an advanced or proprietary knowledge of the company’s processes or procedures.
An L-1 visa applicant must intend to depart the U.S. when his or her stay is over. Despite this requirement, however, the L-1 visa is a dual-intent visa. This means that the applicant may also pursue permanent residency simultaneously without a negative impact on the ability to keep or extend the L visa.

If the L-1 applicant is coming to open a new office, the examiner will require information about the new office including proof that office space has been obtained, that the applicant is qualified to open a new office and that the foreign company will remain in existence during the full period of the applicant’s transfer to the U.S. If the company wants to have the L-1 visa extended beyond the initial year, it will have to demonstrate at the time of extension that it has proceeded with the plans outlined in the initial petition.

Executives and managers may stay in L-1A status for up to seven years. Specialized knowledge employees may stay in L-1B status for up to five years. Persons coming to open up a new office in the U.S. will initially be granted a one-year stay in the U.S.

There are special procedures that make it easier for companies with large numbers of multinational employees to obtain L-1 visas for their employees. Companies that qualify can receive a “blanket approval” for all of their L-1 employees rather than having to apply individually for each employee. To qualify for a blanket petition, the company must show:

  • That the U.S. and foreign offices are engaged in commercial trade or services;
  • That the employer’s U.S. office has been in business for at least a year;
  • That the employer has at least three domestic or foreign branches, subsidiaries, or affiliates; and
  • That the employer has:
  • Had at least ten L-1 visas approved in the last year; or
  • The company had U.S. sales of at least a million dollars; or
  • The U.S. work force numbers over 1,000 workers.

A key difference between blanket L-1 employees and regular L-1 employees is that the employee need only work for six months outside the U.S. for the company rather than a year.

A new office L-1 visa is valid for one year. For an employee with specialized knowledge working for a Company that has been in business in the United States for one year or longer, the initial visa validity is up to three year with a two-year extension, for a total of up to five years, and up to seven years for an Executive or Manager transferee.

The spouse and children of the L-1 alien are eligible for L-2 status. L-2 spouses can obtain independent employment authorization pursuant to their L2 status.

O-1 Visa (Individuals with Extraordinary Ability or Achievement)

The O-1 non-immigrant visa category applies to aliens of extraordinary ability in the arts, athletics, sciences, education, business or the motion picture or television industry who are coming to the United States to perform temporary services relating to an event or events. It is also available to accompanying aliens who are coming to assist in the artistic or athletic performances of an alien or extraordinary ability.

An O-1 visa may be valid for the period necessary to accomplish the event or activity, but must not exceed three years. A spouse and unmarried minor children of an alien who holds an O-1 visa are eligible for O-3 visas. They may not accept employment while in the United States while on an O-3 visa.

P-1A/B Visa (Internationally recognized athlete/entertainment group)

Artists and athletes are an essential portion of healthy cultural exchange. The global community benefits greatly from the work of each country’s greatest thinkers and performers. P1 visas are issued to entertainers, circus artists, and athletes who wish to work in the U.S. Outstanding athletes may apply for this visa in order to compete in the U.S., either as individuals or as members of an internationally recognized athletic team.

Entertainment groups with an outstanding international reputation can be granted P-1 classification as a unit; however individual entertainers within these groups cannot apply for separate visas.

P-2 Visa (Individual Performer)

Artists and athletes are an essential portion of healthy cultural exchange. The global community benefits greatly from the work of each country’s greatest thinkers and performers. P2 Visas are issued to troupes or bands entering the U.S. as a part of an exchange program. There should be two organizations involved in this exchange program: one in the US and one abroad.

P-3 Visa (Artist or Entertainers)

The P-3 visa is for artiest or entertainers, individually or as a group, who are coming to the U.s. for developing, interpreting, representing, coaching or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical artistic performance or presentation.

R- 1 Visa (Religious Worker)

This R-1 religious visa applies to individuals who, for at least two year immediately preceding the time of application for admission, have been a member of a religious denomination having a bona fide, nonprofit religious organization in the United States, may be admitted temporarily to the United States to carry on the activities of a religious worker. The Religious Organization must be a bona fide Religious nonprofit organization in the U.S., the Organization may show tax exemption under the IRS 501(c)(3). The Applicant will need to document that he or she was a member in the same religious denomination as the sponsoring organization for a two-year period immediately preceding the application.

Q Visa (Cultural Exchange)

The Q-1 nonimmigrant visa is designed for foreign nationals who are coming to the U.S. to participate in an international cultural exchange program. Under the Q-1 visa, the foreign national can engage in practical training and employment which is related to sharing the history, culture and traditions of their home country.

The exchange program must meet the following requirements:

  • It must take place in a public area such as a school, museum, business, or similar location so that the public can be exposed to aspects of a foreign culture;
  • The program must include a cultural component as an essential part of the cultural visitor’s employment or training; and
  • The program cannot provide for employment or training independent of the cultural component.

The program employer must designate a management level employee to administer the program and act as a liaison to USCIS.

The employer must be engaged in the active conduct of business in the U.S., and must agree to pay the foreign national the same wage as similarly employed U.S. workers and that the employer has the ability to pay the wage.

Also, applicants who have previously been granted Q-1 status must remain outside the U.S. for one year before again being granted Q-1 status.

The Q-1 program designation is approved either for the length of the program, or 15 months, whichever is shorter. The person is also given 30 days after the expiration of the visa in which to make travel plans for their departure from the U.S.

TN Visa (NAFTA Professionals)

NAFTA is the North American Free Trade Agreement. It creates special economic and trade relationships for the United States, Canada and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals to work in the United States. Permanent residents, including Canadian permanent residents, are not able to apply to work as a NAFTA professional. Self-employment is not permission on a TN visa, except in the management consultant category. However, the TN visa holder can work for a company in which they have an ownership interest, even a controlling interest.

Canadian citizens can apply for the TN visa at a port of entry or pre-flight inspection at a Canadian airport. If approved, the Canadian will be given an I-94 valid for multiple entries over a three years period.

Mexican citizens may apply for the TN directly at a U.S. consulate in Mexico and do not need prior approval from USCIS. Mexicans may not apply for a TN at pre-flight inspection. Spouses and children of TN visa holders are given TD visas. Dependents do not have to be citizens of Mexico or Canada. Work is not authorized for TD visa holders, but TD visa holders may attend school.

The maximum period of admission into the U.S. is one year. The US Citizenship and Immigration Services (USCIS) grant extensions of stay in time amounts of one year. There is no limit on the number of years a TN visa holder can stay in the United States. However, the TN visa status is not for permanent residence.

V-1 Visa (Spouses and Unmarried Minor Children of Lawful Permanent Residents)

The backlog and wait times in the family based second preference (FB-2) category for spouses and unmarried minor children of lawful permanent residents can last several years. The V visa is designed to reunite spouses and minor children of lawful permanent residents with their families while their visa applications are processed. The V visa allows the visa holder to be lawfully employed in the U.S., and, in some cases, to travel outside the U.S.

To qualify for a V visa, the applicant must be the spouse or unmarried child under 21 of a permanent resident for whom an application for immigration was filed on or before December 21, 2000. The application for immigration must have been pending for three years at the time of the application for the V visa.

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