A second area of immigration practice involves non-immigrant visas. Non-immigrant visas are temporary and do not give rise to permanent residence or citizenship. The applicant for a non-immigrant visa is required in all cases to demonstrate that their purpose in the United States is temporary, and that they will ultimately return to their home country. There are a number of non-immigrant visas which are involved in this area. The following is a listing and short description of some non-immigrant visas:
VISA WAIVER PROGRAM
Aliens wishing to come to the United States for tourism or business for 90 days or less from qualified countries may be eligible to visit the United States without a visa. Visitors entering the United States on the visa waiver program cannot work or study wall in the United States, and cannot stay longer than 90 days. In addition, they are not eligible to apply for adjustment of their status. Currently, 29 countries participate in the visa waiver program. They are Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland , Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, United Kingdom and Uruguay.
B-1 AND B-2 VISAS
B-1 and B-2 visas are also known as visitors visas. B-1 is for business and B-2 is for pleasure, or personal reasons.
The B-1 visa is considered the visitor for business visa. Individuals with B-1 visas cannot receive a salary or payment from any United States employer, other than reimbursement for expenses. The activities of an individual with a B-1 visa must benefit a foreign employer, and not a United States business.
The B-2 visa is considered the visitor for pleasure visa. B visa holders are not permitted to work in the United States and the visa will allow admission to the United States for an initial period of up to six months.
Applications for a visitor visa are generally made at the American Embassy or Consulate in the country where the applicant resides permanently. The applicant has to overcome a presumption that he or she intends to remain permanently in the United States, and is therefore not intending to return to the home country. The applicant must demonstrate that the purpose of the trip to the United States is for business, pleasure or medical treatment. The applicant must also demonstrate that and he or she intends to visit for a specific, limited period of time, and that he or she has a residence outside of the United States as well as other binding ties which will ensure the applicants return to his or her home country at the end of the visit. Documentation necessary for approval of a visitor visa can vary given him an applicant=s particular situation.
D VISA
The D Visa is for crewman of boats and airlines
E-1 and E-2 VISAS
The E-1 visa is often referred to as Atreaty traders@. They are citizens of countries that have a trade agreement with the United States, and seek to enter on a temporary basis to carry on a trade of a substantial nature for an enterprise. The enterprise must be established, and capable of carrying on the trade. Substantial is interpreted to mean that half of the trade must be between the United States and the visa holder=s home country.
The E-2 visa is available to persons who invest a substantial amount of money in an enterprise. The enterprise does not have to be established, as required by the E-2 visa. The focus of eligibility for the E-2 visa is on the amount of investment, rather than the actual trading itself, which is the focus of the E-1 visa. The more money that is being invested in an enterprise in the United States, the easier it is to obtain the E-2 visa.
F-1 and M-1 VISAS
Foreign student seeking to study in the United States may enter in the F-1 or M-1 categories. The F-1visa includes academic students in colleges, universities, seminaries, conservatories, academic high schools, other academic institutions, and in language training. The M-1 visa includes vocational students. The following criteria must be met in order to obtain an F-1 or M-1 visa:
1. The student must be enrolled in an Aacademic@ educational program, a
vocational program, or a language training program.
2. The school must be approved by the United States Citizen and Immigration
Service (USCIS).
3. The student must be enrolled as a full-time student in the school.
4. The student must be proficient in English, or enrolled in courses leading to
proficiency in English.
5. The student must have sufficient funds available for self-support, or support by
others in the United States , during the entire time he or she is at school.
6. The student must demonstrate that he or she has a residence in their home country, and that they intend to return their upon completion of their courses.
You are permitted to stay in the United States for as long as you are enrolled as a full-time student in an educational program, and are making progress towards completion of your courses. In addition, if approved, you may be permitted to stay an additional one-year if you are pursuing practical training after completion of your studies.
H-1B VISA
The H-1B visa is the most common form of temporary work visa, and it enables foreign workers to enter the United States to work on a temporary basis mostly in a professional capacity. There are three categories of H-1B visas:
1. H-1B workers with advanced degrees or exceptional ability
2. H-1B professionals (namely a bachelors degree or the equivalent)
3. H-1B skilled workers and other workers
The sponsoring employer is required to demonstrate that the occupation is of a special nature and cannot be easily filled with the workforce already available in the United States. The wages and benefits for the position must be equivalent to what is being given to similar United States workers. These and other requirements are necessary in order to approve the position as an H-1B position. The primary document filed by the employer is the Labor Condition Application.
The applicant employee is required to demonstrate that he or she possesses the education and experience required by the category in which he or she is applying. Generally, the H-1B Visa is valid for three years, but may be extended for an additional three years. After the expiration of the H-1B visa, the alien is required to leave the United States for a minimum of one year. Thereafter, the alien may again apply for H-1B status.
There is an annual cap for H-1B visas, presently set at 65,000 each year. There are exceptions to the annual cap for institutions of higher learning and a certain research organizations. Applications are generally made with the beginning of the fiscal year on October 1. Because of the overwhelming amount of applications, a lottery system has been put in place. Approvals are granted, and the applicants approved must act relatively quickly in order to obtain the visa.
Spouses and any unmarried children under 21 years of age of an H-1B visa holder may apply for admission under an H-4 visa. A person with an H-4 visa may not work, but is able to acquire a drivers license, open a bank account, and go to school. H-4 visa holders
may adjust their status to H-1B in order to work, or F-1 or M-1 in order to attain a secondary education.
H-2 VISAS
The H-2 visas are used by United States employers to obtain skilled or unskilled alien workers to meet temporary or seasonal needs in positions where United States workers are not available. The employer is required to file for a temporary labor certification, which is designed to demonstrate that United States workers are not available for the temporary positions. The temporary labor certification is filed with the petition, which can apply to one prospective worker or multiple workers, as long as they work at the same location and perform the same type of work, and are included in the temporary labor certification.
H-2 visas may be used for a number of positions, and are generally used for agricultural positions, landscaping and other similar work, and summer and winter work at vacation sites.
K VISAS
The K-1 visa is commonly known as the fiancée visa. It is used by United States citizens to bring a fiancée into the United States in order to complete a marriage. The petition is filed along with supporting documentation which includes a valid passport, evidence of support, birth certificate, medical examination report, criminal history reports, and evidence of the validity of the relationship to the United States Citizen. Upon issuance of the visa, a fiancée is permitted to enter the United States and must marry the United States Citizen within 90 days or else leave. There are no extensions beyond the 90 day period, and if the marriage is not completed, the fiancée is subject to deportation and possible bars from returning to the United States for specified periods of time.
After marriage, the former fiancée may apply for a green card, and will receive conditional permanent residence status because the marriage was for less than two years. After the two-year conditional period, an application may be made to remove the condition. Along with the application for a green card, the former fiancée may apply for employment authorization.
The K-3 visa is available to spouses of United States citizens waiting abroad to enter the United States to join their United States citizen spouse. The K-3 visa permits the foreign spouse to enter the United States while awaiting approval of the I-130 family based petition to obtain a green card. The K-4 visa is available to persons under 21 years of age and the unmarried child of an alien eligible to obtain a K-3 visa.
J VISA
The J visa is available for exchange visitors who participate in the Exchange Visitor Program. Exchange visitors are permitted to enter the United States for a period of up to two years, and is designed for the educational and cultural exchange between the two countries.
L-1 VISA
The L-1 Visa is commonly known as the Intra Company Transfer Visa, and is used for owners, executives, managers or employees with specialized knowledge who have worked for at least one year at a the past three years for an foreign employer. To qualify, a foreign company must have, or must create, a United States affiliate company. The affiliate submits a petition to request approval of the L-1 visa. And L-1 visa holder may stay in the United States for up to seven years, and may apply for a green card within one year. Spouses and children of L-1 visa holders may enter the United States under an L-2 visa.
O VISA
An O-1 visa holder is defined as an alien who has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions, a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability. O-1 visas are most commonly used by individuals having extraordinary ability in the field of arts.
An O-2 is available to aliens who seek entry to accompany an O-1 visa holder, and whose essential skills make them integral to the performance. O-3 status is available to dependents of O-1 and O-2 visa holders.
P VISA
The P visa is used by athletes and entertainers to enter the United States.
R VISA
The R visa is used by religious workers who desire to enter the United States to complete religious work.
TN VISA
The TN visa is available for Canadian and Mexican business visitors, treaty
traders, investors, intra-Company transferees, and professionals to work in the United
States.