ABCs of Immigration: Nonimmigrant Visas

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored by Bruce Buchanan, The I-9 E-Verify Handbook.]

What are the five major immigration status/visa categories?

The following are the major categories of immigration status and visas:

• Nonimmigrant visas are for visitors staying temporarily, such as workers, students, or visitors.
• Immigrant visas are for lawful permanent residents, such as green card holders.
• Asylees and other special groups are asylum-seekers, refugees, and temporary protected status (TPS) holders.
• Citizens
• Undocumented immigrants

What are the various types of nonimmigrant visas and to whom are they available?

The following are types of nonimmigrant visas:

• H-1B visas: Available to individuals who are in “specialty occupations.”
• B-1 and B-2 visas: Available to short-term visitors, for either pleasure or business.
• F-1 visas: Available to students.
• J-1 visas: Available to exchange visitors. Exchange visitors include trainees, interns, professionals or research scholars, short-term scholars, foreign doctors, cap counselors, au pairs, and students in work/travel programs in the United States.
• O-1 visas: Available to people with extraordinary ability in the sciences, arts, crafts, education, business, athletics, or any field of “creative endeavor.”
• L visas: Available to intracompany transfers.
• E visas: Available to E-2 treaty investors and E-1 treaty traders.
• R visas: Available to religious employees.
• TN visas: Available to Canadian and Mexican professionals working pursuant to the North American Free Trade Agreement (NAFTA).
• E-3 visas: Available to Australians.

What kinds of issues are relevant for H-1B visa applications?

When coming to the determination regarding the eligibility of an applicant for an H-1B visa, the following are pertinent issues:

• Do you have a university degree?
• Do most individuals in your field in the United States have university agrees?
• If lacking a degree, do you have several years of work experience in your field?
• Do you have an employer in the United States willing to hire you?
• Does the position have compensation on par with that of similarly employed U.S. employees?
• Does the employer guarantee continuous work availability for you?
• If the occupation requires a license, do you have the necessary licensure?

For how long is the H-1B visa valid?

An H-1B visa is valid for up to six years. Initially valid for three years, it can then be extended for three years. It is possible to extend the status further, if a permanent residency application has been filed.

Can an H-1B visa holder apply for a green card?

Yes. It is possible for H-1B visa holders to simultaneously have pending green-card applications.

Are spouses or children of H-1B visa holders permitted employment?

Under specific circumstances, yes. If an H-1B holder has been granted status under the American Competitiveness in the 21^st Century Act of 2000, as amended by the 21^st Century Department of Justice Appropriations Authorization Act, then a dependent spouse is eligible for work authorization. Additionally, the principal benefits of an approved I-140 petition are eligible.

Are H-1B visa holders required to maintain ties to their home countries?

No.

How many H-1B visas are provided annually?

There is a limit of 65,000 visas granted to individuals every year. Many H-1B employees are exempt from this cap, however, with an additional quota of 20,000 for individuals who hold a master’s degree or higher granted by a U.S. university.

Are H-1B visa holders allowed to change employers?

Yes, but the new employer must file a petition with USCIS prior to the employee beginning work.

Are H-1B visas permitted for self-employment?

Yes, however the applicant is required to demonstrate all H-1B requirements, including documenting his or her ability to earn a prevailing wage, which can be extremely difficult.

What happens if the H-1B applicant does not have the appropriate degree?

The applicant must demonstrate equivalent work experience, and an evaluation from an expert must be obtained.

What kinds of issues pertain to B-1 and B-2 visa applicants?

The following questions are of particular interest to B-1 and B-2 applicants, as they will likely face them when they are interviewed at a U.S. consulate:

• Do you have a job that is well compensated and can be left for a few weeks while on vacation?
• Do you have close relatives who will remain in your home country while you are in the United States?
• Will your visit be short?
• Do you have assets in your home country?
• Are you a property owner in your home country?
• Do you have a specific itinerary in place for your trip to the United States?
• Do you have a roundtrip plane ticket?
• Do you have close community ties in your home country?
• Do you have sufficient funds or proof of financial support from friends or relatives in the United States to demonstrate an adequate financial arrangement to carry out your trip in the United States?
• If coming for business, is the work you are doing that which would typically be done by a U.S. employee?
• If coming for business, is the primary location where profits are earned outside of the United States?
• If coming for business, will you be paid abroad rather than in the United States?
• If coming as a B-2 visitor for pleasure, is one of the following purposes your motivation for travel?
• • Social visits to friends or relatives.
  • Health purposes.
  • Participant in conventions of social organizations.
  • Participant in amateur musical, sports, or similar events without compensation?
  • Spouse and children of individuals in the U.S. Armed Forces.
  • Accompanying B-1 business visitors.
  • Coming to marry a U.S. citizen, but the person plans on departing after the wedding.
  • Coming to marry someone on a nonimmigrant visa.
  • Nonspouse partner/spouse (regardless of gender) who accompanies an E, H, or L visa holder.
  • Parent seeking to accompany an F-1 student visa holder.
  • Language student in a course of short duration when the course of study is fewer than 18 hours per week.
• If coming on a B-1 business visitor visa, is one of the following purposes your motivation for travel?
  • Engaging in commercial transactions not involving employment, such as negotiating contracts, litigation, consulting with clients, or business associates.
  • Participating in scientific, educational, religious, or business conventions.
  • Religious employees coming to do missionary work in the United States, ministers exchanging pulpits but are paid by their own churches abroad, and ministers on evangelical tours.
  • Domestic servants accompanying returning U.S. citizens assigned to the United States temporarily or who reside in a foreign country permanently.
  • Domestic servants accompanying nonimmigrant visa holders as long as the applicant has worked for the employer for one year or more.
  • Professional athletes whose compensation is exclusively tournament money.
  • Foreign medical students seeking to take “elective clerkship” without pay.
  • Serving on a board of directors of a U.S. company.
  • Coming to the United States to establish a U.S. subsidiary and explore investment opportunities.
  • Installing equipment as part of a contract.
  • Participating in a religious volunteer service program.
  • Attending an executive seminar.
  • Observing the conduct of business.
  • Domestic partner of an individual who is on a nonimmigrant visa.

For how long is the B-1 or B-1 visa valid?

An approved applicant may be granted an authorized stay of up to six months, but the odds of receiving the visa at all increase the shorter the trip requested. A consular officer is authorized to approve a stay that is shorter than six months.

Are B-1 and B-2 visa holders permitted employment in the United States?

Generally, no.

Nationals from which countries are eligible for the Visa Waiver Program?

Nationals from the following countries are eligible under the Visa Waiver Program (VWP) to enter the U.S. for up to 90 days:

Andorra, Australia, Austria, Belgium, Brunei, Chile, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Malta, San Marino, Singapore, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom. VWP entrants are not allowed to extend their status and cannot change to other nonimmigrant categories while in the United States.

What kinds of issues pertain to F-1 visa applicants?

F-1 visa applicants face the following issues when receiving approval from USCIS:

• Do you have a residence in your home country that you have no intention of abandoning?
• Have you been admitted to study full time in a degree program or in an English language program?
• Is the school at which you intend to study approved for students to attend on student visas?
• Do you have evidence of adequate financial resources to attend school full time in the United States without needing to work?
• If not studying in an English language program in the United States, are you proficient in English?
• Will the education you obtain in the United States improve your career prospects in your home country?

What are the requirements for the F-1 visa holder?

F-1 visa holders must be enrolled full time. They also have limited on-campus work eligibility. Off-campus employment is prohibited, with the exceptions of if the student fits under limited exceptions and the employment authorization is granted by the school or USCIS.

Can an F-1 visa holder work in the United States upon completion of an educational program?

Yes. After finishing a program, F-1 visa holders can receive up to a year of work authorization. Additionally, if the individual holds a degree in certain fields of science, technology, engineering or mathematics (STEM), he or she may receive an additional two years as long as the employee uses E-Verify and produces a training program.

What are the limitations of spouses and children of F-1 visa holders?

What types of issues pertain to J-1 visa applicants?

The following questions are of particular interest to J-1 applicants in receiving approval:

• Are you coming to the United States in order to participate in an exchange program designed by the U.S. Department of State?
• Are you fluent in English and do you have adequate financial resources to live in the U.S. if the program does not pay J-1 visa holders?
• If seeking to enter the au pair program, have you registered with one of the eight designated au pair programs in the United States?
• If you are a doctor seeking to train in the U.S., are you admitted to a medical residency or fellowship program and have you obtained sponsorship from the Educational Commission for Foreign Medical Graduates (ECFMG)?
• If coming for a business trainee or intern visa, have you identified an employer that will provide you with a training opportunity?
• If you have found a training opportunity, have you identified a program sponsor?

Is there a requirement for J-1 visa holders to return home before switching to another visa?

Yes. There is often a requirement for J-1 visa holders to return home for two years prior to changing to another visa.

What are the time requirements for J-1 visa holders?

Time limits are different depending on the type of program:

• Training participants: 18 months.
• Interns: 12 months.
• Scholars and professors: up to three years.
• Au pairs: 12 months with the opportunity to renew for six, nine, or twelve months.
• Medical residents: up to seven years.
• Students: no limit.

Students are eligible for a maximum of 18 months of postgraduate work authorization, if postdoctoral a maximum of 36 months, but they must be enrolled full time.

What about employment opportunities in the United States for the spouses and children of J-1 visa holders?

Spouses and children of J-1 visa holders are entitled to work authorization.

For further reading, including the pertinent issues facing O-1, L, E-1, and E-2 visa applicants, view Chapter 17 in The I-9 and E-Verify Handbook.

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