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 nonimmigrant visa applicant (except certain employment-related applicants, who are exempt) is an intending immigrant unless otherwise proven. Therefore, applicants for most nonimmigrant visas must overcome this presumption by demonstrating that:
- The purpose of their trip is to enter the U.S. for a specific, intended purpose;
- 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 ensure their return at the end of their stay.
The immigration visa process is even more stringent and costly. After all processing fees have been paid, most immigration visa applicants pay well over 1000 U.S. dollars to become permanent residents in the United States and may be forced to wait several years before actually immigrating to the U.S.
If you are looking to work or set up a business in the US, to buy property or for any other reason send significant time in the US it is vital that you take advice from a properly qualified immigration lawyer. Failure to do so can lead to you inadvertently falling foul of one of the many provisions of US immigration law (and sometimes State laws).
Here are some of the main classes of visas, but this is not exhaustive:
- A-1, A-2, and A-3 - issued to "representatives of a foreign government traveling to the United States to engage in official activities for that government." They are granted to foreign government ambassadors, ministers, diplomats, as well as other foreign government officials or employees traveling on official business as well as immediate family members.
- B-1 and B-2 - The most common non-immigrant visa is the multiple-purpose "visa for temporary visitors for business or pleasure." Visa applicants sometimes receive either a B-1 (temporary visitor for business) or a B-2 (temporary visitor for pleasure) visa, if their reason for travel is specific enough that the consular officer does not feel they qualify for combined B-1/B-2 status.
- F visa - issued for foreign students enrolled at accredited US institutions.
J-1 - The Exchange Visitor Program is intended to facilitate educational and cultural exchanges. Sponsoring organizations facilitate the entry of foreign nationals into the United States as exchange visitors to complete the objectives of one of the exchange visitor program categories, which are:
- Au Pair
- Student, College/University
- Student, Secondary
- Government Visitor
- International Visitor (reserved for Department of State use)
- Professor and Research Scholar -
- Short-term Scholar (maximum duration of participation in this category is six months; no program extensions are permitted)
- Specialist (maximum duration of participation in this category is one year)
- Summer work/travel
- Trainee (maximum duration of participation in this category is 18 months, except for agriculture programs (limited to 12 months) and hospitality training programs (limited to a maximum duration of 12 months, with any hospitality training program longer than six months required to have at least three departmental rotations).
- H-1B - for professional-level jobs that require a minimum of a bachelor's degree in a specific academic field. The employee must have the degree (or the equivalent through education and experience). Before the H-1B petition can be filed, the employer must fill a "Labor Condition Application" (LCA) with the Department of Labor demonstrating that it is paying the required wage for this position in the geographic region where the job is located. The required wage for the position is the higher of the "actual wage" that is paid to other employees in this position or the "prevailing wage" which can be determined using nearly any source, including the employer's own wage survey. Submitted LCAs may only be rejected if they be "incomplete or obviously inaccurate".
Contrary to popular myth, there is no requirement that employers must prove they could not find U.S. workers before hiring H-1B workers. In the case of "H-1B-dependent employers" (usually those with more than 15% of their workers on H-1B visas), the law requires these employers to recruit U.S. workers in "good faith". However, there is no effective enforcement mechanism in place.
As a general rule, a person who is in one non-immigrant status may not change status or change employers in that status until he or she applies such a change and such change is granted. However, certain individuals already in the United States in H-1B status can commence employment for a new employer once a new employer's H-1B petition is filed with USCIS.
In order to obtain an H-1B visa, the employer must show that it will pay the higher of the prevailing local wage or the wage it pays other U.S. citizens who have similar education and experience.
- L-1 Intracompany Transferee – this visa is for international transferees who have worked for a related organization abroad for at least one continuous year in the past three years and who will be coming to the United States to work in an executive or managerial (L-1A) or specialized knowledge capacity (L-1B).
To qualify as an international executive, the employee must meet the following requirements:
- Direct the management of the organization or a major component or function;
- Establish the goals and policies of the organization, component, or function;
- Exercise wide latitude in discretionary decision-making; and
- Receive only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
To qualify as an international manager, the employee must meet the following requirements:
- Manage the organization or department, subdivision, function or component of the organization;
- Supervise and control the work of other supervisory, professional or managerial employees, or manage an essential function within the organization, or a department or subdivision of the organization;
- The authority to hire and fire, or recommend hire/fire and other personnel actions (such as promotion and leave authorization), or if no employees are directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
- Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
To qualify as a specialized knowledge transferee, the employee must meet the following requirements:
- Possess knowledge of the company product and its application in international markets; or
- An advanced level of knowledge of processes and procedures of the company.
- TN Visa (TN-1) for Canadians/Mexicans to work in the United States - facilitates travel to and employment in the United States (U.S.) of certain Canadian and Mexican professional workers. The TN employee must possess the credentials required as well as proof of qualifying citizenship. TN status allows unlimited multiple entries to the U.S. for the period of service required by the U.S. employer (includes foreign employers), up to a maximum of three years, and can be extended indefinitely as long as the temporary purpose of the employment continues. There is no annual cap on TN work permits (unlike the H-1B visa).
TN: Professionals who are self-employed outside the U.S. may pursue business relationships from outside the U.S. (e.g. contracts for services) with U.S.-based companies and obtain TN status to engage in these prearranged activities in the U.S. However, under TN classification they are not permitted to come to the United States to engage in self-employment in the United States, nor to render services to a corporation or other entity in which he/she is a controlling owner or shareholder.
Spouses and unmarried children under 21 of Canadian and Mexican professionals obtain TD status. They can be included on the application of the TN principal (no separate filing fees) and admitted for the same duration of stay. TD nonimmigrants may study in the US under this classification, but are not authorized for employment.
- K Visas for immediate relatives - Even though these visas are issued to people who have the intent to immigrate permanently to the United States, they are still technically classified as nonimmigrant visas (temporary). U.S.citizens may petition for a K temporary visa for fiancé(e)s, spouses and unmarried dependent children of said fiancé(e)s and spouses. In the case of fiancé(e)s, the K-1 visa will allow them to stay in the U.S. for 90 days to marry the petitioning citizen and apply for adjustment of status to legal permanent resident. If the marriage is not concluded within that time, the fiancé(e) will be subjected to removal proceedings. Compliance with the International Marriage Broker Regulation Act (IMBRA) IMBRA limits the number of K1 fiancee visa petitions a sponsor can file or have approved without seeking a waiver of the limits. Additionally, the child of a fiancee may receive a derivative K-2 visa from his/her parent's fiancee petition. The child may travel with your fiancee or travel later within one year from the date of issuance of the K-1 visa to their parent. A separate petition is not required if the children accompany or follow your fiancee within one year from the date of issuance of her K1 visa. If it is longer than one year from the date of visa issuance, a separate visa petition is required. In the case of spouses, the K-3 visa is valid for two years and may be extended indefinitely as long as the marriage on which it is based is not dissolved. The holders of K-3 and K-4 status are eligible for work authorization and may leave and re-enter the United States as long as their visas are still valid.
Foreign same-sex partners of United States citizens are currently not recognized by USCIS and accordingly cannot be sponsored for K 1 Fiancee Visa or for Permanent Resident status. However, same-sex partners of non-U.S. citizens can qualify for temporary visas to the U.S. on the basis of their relationship according to the U.S. State Department, which effectively gives U.S. citizens fewer rights than non-citizens seeking to live with their same-sex partners in the U.S.
- E5 Immigrant Investors - Visas are available to immigrant investors seeking to enter the United States to engage in new commercial enterprises that benefit the U.S. economy through job creation and capital investment. E5 investors receive up to 7.1 percent of all employment based immigrant visas issued worldwide each year.
To qualify as an immigrant investor, a foreign national must invest, without borrowing, the following minimum qualifying capital dollar amounts in a qualifying commercial enterprise:
- $1,000,000 (U.S.); or
- $500,000 (U.S.) in a high-unemployment or rural area, considered a targeted employment area.
A qualifying investment must, within two years, create full-time jobs for at least 10 U.S. citizens, lawful permanent residents, or other immigrants authorized to work in the United States, not including the investor and the investor’s spouse, sons, or daughters.
Immigrant investor visa categories are:
- Employment creation outside a targeted area – C5
- Employment creation in a targeted rural/high unemployment area – T5
- Investor Pilot Program not in a targeted area – R5
- Investor Pilot Program in a targeted area – I5
This is not an exhaustive list of available immigration visas and you should seek advice to idenify the options and the processes to obtain the visas.
V visas and LIFE Act for spouses of legal permanent residents (Green Card holders) - A lawful permanent resident can file an immigrant visa petition for spouse and unmarried children under 21 years old. It can take several years for visa to be available for such person to come to the U.S. or adjust his or her status to permanent resident, if already in the U.S. So, if the person is in the U.S, he or she may be in illegal status and/ or without work authorization while waiting for visa to become available. “V” Visa is intended to end the several years families have to remain separated while waiting for visa. It also allows those spouses and children in the U.S. to remain legally and obtain work authorization while waiting for a visa to become available for them.
This is how “V” non immigrant visa works: if your permanent resident spouse or parent filed (Form I- 130) immigrant visa petition for you more than three years ago, you may be eligible to get this non immigrant “V” visa. If you are eligible, you can also obtain work authorization while waiting for your immigrant visa to be adjudicated. If you are in the US even in violation of law, e.g., came in without visa or overstayed your visa, you can still apply and get work authorization.
If the person is overseas, the person can go to the American Consulate to apply for “V” Non Immigrant Visa, and seek admission to the US under such category. The person will be allowed to remain and work in the US while waiting for the immigrant visa to be adjudicated