Foreign nationals who wish to come to the United States for a temporary purpose, including to visit, work for a U.S. or international employer, study, participate in a training program or athletic or cultural event, or to work in an area in which the foreign national possesses extraordinary ability, generally need a non-immigrant visa to enter the U.S. The type of visa needed and the requirements to qualify for it depend largely on the purpose of the visit to the United States.
There are many types of non-immigrant visas. Some non-immigrant visas require a temporary intent to remain in the U.S., which means that a foreign national has a residence abroad which he or she has no intention of abandoning, and some allow for dual intent, which means that even though the foreign national currently has temporary status in the U.S., at some point in the future he or she intends to remain here permanently.
Our firm has the experience and expertise to determine the appropriate non-immigrant visa for a given situation, and will work with you, and where necessary, with other parties, such as a prospective employer, agent, or event organizer, to maximize the probability of success in a carefully drafted application that accomplishes your short-term and long-term goals.
It is important to remember that the issuance of a visa alone does not guarantee entry to the United States. A visa simply indicates that a U.S. consular officer at an American consulate abroad has reviewed the non-immigrant visa application and has determined that the foreign national is eligible to apply for entry to the U.S. for the stated purpose. At the actual port-of-entry, i.e., at a land border crossing, seaport or at an airport, a Customs and Border Protection (CBP) officer will conduct an inspection to determine if the individual is eligible for admission with that visa under U.S. immigration law.
Some foreign nationals do not need to get a visa to enter the United States. For example, nationals from certain countries are eligible to come to the United States to visit for pleasure or business with the Visa Waiver Program. Click here for a list of Visa Waiver Program countries. This program allows visitors to remain in the United States for up to 90 days but does not allow for a change of status or an extension of the time here. Canadian citizens may also apply at an airport or land port of entry to visit for pleasure or business with a valid passport and no visa.
Sometimes while a foreign national is in the U.S., he or she may need to prolong their visit or change the visa because the purpose of the visit changes. For example, a foreign national on a visitor's visa may wish to travel further requiring an application for extension of stay or he or she might want to enroll in school, thereby prompting a need to switch to a student visa. Or an individual with a student visa might want to switch to a status that allows him or her to work. In most, but not all, cases, a foreign national can extend or change status to a different non-immigrant category without leaving the U.S. as long as certain requirements are met, including filing the application for extension or change of status during the validity of the current nonimmigrant status, and demonstrating eligibility for the requested extension or change of status.
Our firm will work with you to determine what applications can be made to reach your goal and help you to submit a successful application.
Under U.S. immigration law, there are many grounds that can make a foreign national inadmissible to the U.S. Among the most common are convictions for certain crimes, prior immigration infractions, and the commission of fraud in applying for a past visa or entry to the United States. If an inadmissibility ground applies, a foreign national may be able to get a waiver of inadmissibility under Section 212 (d)(3) of the Immigration and Nationality Act. This type of waiver is granted at the discretion of the government. The only inadmissibility grounds that cannot be waived under 212(d)(3) are security-related grounds related to espionage, sabotage, genocide, and Nazi persecution. Unlike most other types of immigration waivers, the 212(d)(3) waiver does not require a showing of extreme hardship to a U.S. citizen or lawful permanent resident parent, spouse or child. Once granted, the waiver remains valid for the duration of the visa, and can be used to enter and leave the U.S.
Our firm can work with you on all the steps of the process, from the nonimmigrant visa application to preparation for the visa interview abroad and the CBP inspection at the port of entry. Additionally, our firm can help you plan for and prepare an extension or change of status application should you need it while here in the United States. We can also help you determine if an inadmissibility ground applies, and if necessary, prepare a persuasive application for a 212(d)(3) waiver.
Below is a brief description of the various non-immigrant visa categories and how our firm can help you.
B-1 and B-2 visas for visitors for business and visitors for pleasure
B-1 visas are for foreign nationals who are coming temporarily to the United States for a business purpose such as meeting with clients, attending conferences, negotiating contracts, and attending board meetings. The performance of skilled or unskilled labor is not permitted with a B-1 visa.
B-2 visas are for those coming to the U.S. to engage in tourism, visit family and friends, engage in a short course of study, get medical care, participate as an amateur in an entertainment or athletic event or for other similar temporary purposes. In some special situations, such as accompanying a member of one's household who is here in another non-immigrant category, an extended B-2 stay can be granted. The performance of skilled or unskilled labor is not permitted with a B-2 visa.
F and M visas for academic and vocational students
The F visa classification is for foreign nationals who are enrolled full-time at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program.
The M visa category is for students in vocational or other nonacademic programs, other than language training.
To be eligible for either the F visa or the M visa, applicants must be enrolled full time in a program or course of study that results in a degree, diploma, or certificate. The school must be certified by the Student and Exchange Visitors Program (SEVIS) of Immigration & Customs Enforcement (ICE). Applicants must receive a form I-20 from the academic or vocational program, must be proficient in English or be enrolled in courses leading to English proficiency, have a foreign residence that they have no intent to abandon, and show that they are able to support themselves during their stay in the U.S. without working here, as their opportunities for legal employment are limited. For both F-1 and M-1 students, any off-campus employment must be related to their area of study and must be authorized by the Designated School Official for SEVIS and USCIS prior to commencing employment.
F-2 and M-2 visas may be given to the spouse and children of an F-1 and M-1 student respectively. F-2 and M-2 visa-holders are prohibited from any form of compensated employment. However, minor children may attend public schools.
F-3 and M-3 visas are for "border commuters" who reside in their country of origin while attending school full time or part time in the United States. These visas are granted to nationals of Mexico or Canada only. F-3 visas are for academic students and M-3 visas are for vocational students.
An F-1 student may be authorized for up to a total of 12 months of full-time optional practical training (OPT) at each educational level (e.g., undergraduate, graduate and post-graduate). OPT can be used for work while being enrolled in school or after completion of the educational program. Students who graduate with a qualified Science, Technology, Engineering or Mathematics (STEM) degree, and are currently in an approved post-completion OPT period may be able to obtain a 24-month extension of their post-completion OPT. OPT is only authorized for work that is directly related to the field of study. An F-1 student on STEM OPT can only be employed by an E-Verify program participating employer.
H-1B visa for professional workers
The H-1B visa is for professionals in "specialty occupations" or fashion models of distinguished merit and ability, whose services, either full or part time, are needed by a petitioning U.S. employer. A "specialty occupation" is one that requires a precise and specific course of study which relates directly and closely to the position being offered. If granted, the foreign national is authorized to work for only the petitioning employer.
To qualify for the H-1B visa, the foreign national must have a United States Bachelor's degree or the foreign equivalent of one. Alternatively, it is possible to qualify if he or she has education, specialized training, and/or progressively responsible work experience that is the equivalent to a U.S. Bachelors' degree.
A maximum of 65,000 H-1B visas can be issued per year, with some exceptions for certain non-profit employers. In the past few years, the demand for H-1B visas has exceeded the number available, causing the government to conduct a lottery (H-1B Registration) each year.
H-1B status can be extended to a limit of six years with the possibility of further extensions if an application for employment based permanent resident status is begun before the beginning of the sixth H-1B year. Alternatively, if the professional leaves the U.S. for at least one year, he or she may thereafter apply for a new H-1B visa for a total of up to six years.
The U.S. employer must offer to pay a wage that is equal to or higher than the prevailing wage in that occupation in the geographic location of the offered position. An H-1B worker can bring his or her spouse and/or children with them to the United States, although they cannot be granted employment authorization, except in limited circumstances. An H-4 spouse may now apply for employment authorization if his or her spouse has an approved I-140 petition or has received an extension of his or her H-1B visa under the rules that allow an extension beyond the six-year limitation.
Our firm is very experienced in assisting foreign professionals come to the United States to work for U.S. employers with the H-1B visa, having filed thousands over the years.
J visa for exchange visitors
The J-1 classification is for foreign nationals who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training. J-1 nonimmigrants need to be sponsored by an entity that has been designated by the U.S. Department of State to act as an exchange sponsor.
Categories of exchange visitors include:
J-1 applicants are required to show that they will have sufficient funds to support themselves, be fluent in English, maintain a residence abroad that they do not intend to abandon, and carry sufficient medical insurance for themselves and accompanying family members.
Certain J visa holders are required to return to their home country or country of last residence for two years after completing the J-1 program before they can apply for certain other non-immigrant visas, an immigrant visa or adjustment of status. This requirement may be waived in some, but not all, circumstances, including if there is a showing of hardship to a U.S. citizen or LPR spouse or child, if the applicant would be subject to persecution in his or her country or country of last residence, or if the home country issues a no-objection statement regarding the J applicant's decision to remain in the U.S. However, the "no objection" route does not apply to those coming to the U.S. to receive graduate medical education or training. International medical graduates may apply for a waiver of the two-year foreign residence requirement if recommended by a federal or state agency that facilitates the employment of the international medical graduate in an area that is federally designated as medically underserved.
The spouse and unmarried children under 21 years of age of a J-1 visa holder are entitled to J-2 classification. They are eligible for work authorization; however, it must be shown that their income will not be used to support the J-1 visa holder.
Our firm is experienced in all aspects of the J visa including advising foreign applicants about the implications of incurring the two-year home country residency requirement and in helping clients apply for a waiver where necessary. Also, for interns and trainees, our firm works closely with the sponsoring entity and the foreign national in reviewing a training plan that complies with the regulations and has the highest likelihood of approval.
L visa for intra company transferees
The L-1 nonimmigrant classification allows a U.S. or foreign employer to transfer an executive or manager (L-1A) or an employee with "specialized knowledge" (L-1B) from a foreign office to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States for the purpose of establishing one.
To qualify, the applicant must have worked abroad continuously for the petitioning company for at least one year within the three years immediately preceding the filing of the L-1 petition. The applicant must seek to enter temporarily to work for the petitioning employer in a managerial or executive capacity or in a position involving specialized knowledge. The initial grant is for three years, except it is only granted for one year if the petition is to establish a new U.S. office. L-1B applicants with specialized knowledge may stay for a maximum period of 5 years, an L-1A applicant in a managerial or executive capacity may remain for 7 years.
The transferring employee may be accompanied or followed by his or her spouse and unmarried children under 21 years of age. The L-2 spouse is eligible to work.
Certain employers may obtain blanket approval for qualifying employees who they wish to transfer to the United States, if the petitioning company:
If a blanket L-1 petition is approved, employees of the qualifying employer do not have to submit an individual L-1 petition with USCIS; they can apply for their individual L-1 visas directly with a U.S. consulate.
Our firm works with the employer and the transferring employee in preparing a persuasive application with the best supporting evidence available that maximizes the chances of success.
Click here for information for managers and executives who would like to apply for legal permanent residence.
O visa for persons with extraordinary ability in the sciences, arts, education, business or athletics
An O-1 nonimmigrant visa classification is for a foreign national who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
An O-1 beneficiary must show that he or she is coming temporarily to the United States to continue work in the area of extraordinary ability. A record of extraordinary achievement may be demonstrated in a variety of ways, including but not limited to:
An O-2 visa may be granted to person(s) accompanying the O-1 artist or athlete if the person is, or the persons are, an integral part of the O-1's performance, and have experience with the O-1 so that the services cannot be performed by anyone else. An O-3 visa may be granted to the spouse and children of the O-1.
Critical to the O-1 and O-2 visa is a written advisory opinion from a peer group (including a labor organization or union) or a person designated by the group with expertise in the applicant's area of ability describing the O-1's ability and achievements, and in the case of O-2s, the essentiality of the applicant to the O-1, unless it can be shown that such a peer group does not exist. The advisory opinion can also be waived for O-1s of extraordinary ability in the arts who are reentering to perform similar services within 2 years of the date of a previous consultation.
The petitioner for an O visa may be the actual employer of the beneficiary, the representative of both the employer(s) and the beneficiary, or a person or entity authorized by the employer(s) to act as an agent. The petitioner must establish that there are events or activities in the beneficiary's field of extraordinary ability for the validity period requested, with an explanation of the nature of those events or activities, the beginning and end dates, and a copy of any itinerary, if applicable.
Our firm will work with you in carefully drafting the application and assuring that the most persuasive evidence is gathered and submitted.
P visa for performers and athletes
The P-1A non-immigrant classification is for an internationally recognized athlete, either individually or as part of a group, who is coming temporarily to the U.S. to perform at a special event or competition. The P-1B classification is for a person who performs with, or is an integral part of, an entertainment group that has been recognized internationally as being outstanding for a sustained and substantial period of time. This classification is not available for individual performers. In order to qualify for a P-1B at least 75 percent of the group members must have had a substantial and sustained relationship with the group for at least one year. Circus performers and essential circus personnel are exempt from the one year requirement as well as the international recognition requirement.
Critical to the P visa is a consultation from an appropriate labor organization regarding the nature of the work to be done. In the case of a P-1A petition, the consultation should describe the qualifications of the athlete, and in the case of a P-1B it should state that the group has been established and performing regularly for a period of at least one year. This requirement can be waived if no appropriate labor organization exists.
P-2 Reciprocal Exchange Program
This visa may be given to individuals or groups wishing to come to the United States to perform as part of an exchange program between an organization or organizations in the U.S. and an organization or organizations in a foreign country or countries that provides for the temporary exchange of artists, entertainers or groups. Support personnel also qualify for this visa.
P-3 Culturally Unique Program
A P-3 visa may be given to artists or entertainers, individually or as part of a group, coming to the U.S. for the purpose of "developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical or artistic performance or presentation."
Our firm works with you and a U.S. employer or sponsor or agent in carefully drafting the application and assuring that the most persuasive evidence is gathered and submitted in a timely manner.
R visa for religious workers
An R-1 visa is for a foreign national who is coming temporarily to the United States to be employed by a non-profit religious organization in the United States or an organization affiliated with a religious denomination in the United States to work as a minister or in a religious vocation or occupation. In order to qualify for the visa or status, the foreign national must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately before the filing of the petition. R-1 status may be granted for an initial period of up to 30 months, and subsequent extensions may be granted for an additional 30 months for a maximum period of 60 months in the United States.
An R-1 religious worker's spouse and unmarried children under the age of 21 may be eligible for R-2 classification. An R-2 dependent is not authorized to accept employment based on this visa classification.
Our firm works with the petitioning religious entity or non-profit organization and the foreign national in carefully drafting the application and assuring that the most persuasive evidence available is gathered and submitted.
TREATY BASED NON-IMMIGRANT VISAS
TN USMCA (formerly known as NAFTA) professionals
Pursuant to the United States-Mexico-Canada Agreement (USMCA), which replaced the former North American Free Trade Agreement (NAFTA)and created special economic and trade relationships between the United States, Canada and Mexico, citizens of Canada and Mexico may be eligible to work temporarily in the United States for a U.S. employer in certain professions. Click here for a complete list of eligible professions. A bachelor's degree is generally required to qualify for most of the listed professions, although there are some exceptions to this requirement.
Canadian citizens can generally apply for TN nonimmigrant status at a U.S. port-of-entry and do not need to apply for a TN visa at a U.S. consul, although a visa can be issued upon request. Mexican citizens must obtain TN visas issued by the U.S. consul to seek admission to the United States in this status.
TN visas can be granted for an initial period of three years, although they may be extended. Accompanying or "following to join" spouse and children under the age of 21 may be eligible for TD nonimmigrant status. Spouses and children are not authorized to work while in the United States, but they are permitted to study.
Our firm will work with you and a prospective employer in preparing the application to ensure the maximum probability of success.
E-1 treaty traders and E-2 treaty investors
The E-1 nonimmigrant classification allows a national of a treaty country to be admitted to the United States solely to engage in international trade. The E-2 classification is for those treaty country nationals who are investing a substantial amount of capital in a U.S. business which requires the presence of the foreign national in the U.S. to oversee. Click here for a list of treaty countries.
Certain employees of such a foreign national or of a qualifying investing business may also be eligible for this classification. Existing or new employees may qualify for this type of visa. E-1 and E-2 nonimmigrant visa applications can be filed directly with U.S. consulates and need not be pre-approved by USCIS. There is no legally imposed minimum size of the planned business but it must generate more than the income necessary to support the foreign national. E-1 and E-2 visas can be granted for an initial period of 2 years, and can be extended indefinitely as long as the U.S. business continues to operate and requires the services of the foreign national. There is no need to have a specific date to leave the U.S. as long as there is no intent to remain here permanently.
Our firm works closely with the prospective investor to gather the proofs required and craft an application that maximizes the probability of approval.
E-3 for specialty occupation professionals from Australia
The E-3 nonimmigrant classification applies only to nationals of Australia. The Australian national must be coming to the U.S. solely to perform services in a "specialty occupation," which requires the theoretical and practical application of a specialized body of knowledge in a professional field, and have the minimum of a U.S. bachelor's degree, or a foreign equivalent. The employer must pay the prevailing wage for that position in the geographic area or the actual wage paid to the employer's similar employees, whichever is higher. E-3 nonimmigrant visa applications are filed directly with U.S. consulates and need not be pre-approved by USCIS. Unlike H-1B spouses and children, E-3 spouses are permitted to work in the United States.
Our firm works with the prospective employer and the Australian citizen to ensure the maximum probability of success with a carefully drafted application.
A and G diplomatic visas
A visas are for official accredited representatives of a foreign government to the United States. The A visa categories include ambassadors, consular officials, diplomats, and other officials and employees, as well as attendants, servants, and personal employees of the officials and employees.
G visas are for the foreign representatives to the international organizations located in the United States such as the United Nations, and the employees and officers of those international organizations. Also included are the attendants, servants, and personal employees of those representatives, officers or employees. The immediate families of all of the above may also qualify for a G visa.
Our attorneys have extensive experience with the diplomatic community and the special situations that they present. This may include remaining in the United States after an assignment, section 13 protection for those who cannot return to their country, the aging out of children, and employment authorization for family members.
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