Every year several millions of visas are issued to foreign nationals visiting, working, or studying in the United States. A foreign national wishing to enter the U.S. must obtain a visa unless he or she is;
- a citizen of one of the thirty-seven Visa Waiver Program countries,
- a citizen of Canada (with the exception of E-2 investors and E-1 treaty traders who must obtain visas prior to entry), the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau,
- a British Overseas Territories Citizen from Bermuda or the Cayman Islands,
- a citizen of the Bahamas or a British Overseas Territories Citizen from the Turks and Caicos Islands (if traveling directly to the U.S. from their respective countries with a valid passport and police certificate issued within six months of time of travel certifying they do not have a serious criminal record)
- eligible for visa-free travel under other laws.
U.S. immigration law includes almost 200 different types of visas. In most cases, eligibility for a particular nonimmigrant visa requires the applicant to prove a temporary intention and purpose for entry to the U.S. depending on the type of visa requested. H and L visas are the most common exceptions to this rule. Below are some of the more common types of nonimmigrant visas. Additional requirements apply to Mexican citizens in some circumstances.
Every nonimmigrant visa category, including those summarized below, include additional requirements, restrictions, and often confusing exceptions. The descriptions below provide very basic overviews of some of the most common nonimmigrant visas and statuses, but they do not substitute for a detailed evaluation of your personal circumstances and background to determine if you qualify for a particular visa. Please contact Bakken Law if you have questions about your particular situation.
Visitors (B-1 / B-2 Visas)
Business people and Tourists
The most common nonimmigrant visa is the multiple-purpose B-1 / B-2 visa, also known as the "visa for temporary visitors for business or pleasure." The B-1 visa is for individuals entering the U.S. to engage in temporary business activities and the B-2 visa is for tourists. Please contact Bakken Law if you have questions about whether your particular intended activity qualifies you for a B-1 or B-2 visa. U.S. Customs and Border Protection (CBP) officers have discretion to admit or deny entry in any particular cases and admission in B-1 or B-2 status can initially be granted for up to 6 months. Certain indivuals may be eligible to extend B-1 or B-2 status without leaving the U.S.
TN Status for Citizens of Canada and Mexico
TN status is available to citizens of Canada and Mexico who will work in the U.S. in a designated professional capacity for a temporary period. In most cases, individuals seeking TN status must be coming to the U.S. in order to work in an occupation that appears on a list of professions designated under the North American Free Trade Agreement (NAFTA). With some exceptions, these positions require the TN individual to hold at least a Bachelor's degree. TN status may also be available to Management Consultants and Scientific Technicians or Technologists, though unique requirements apply in these situations.
TN status allows for temporary employment and presence in the U.S., though TNs can be admitted to the U.S. for up to 3 years at a time. Canadians, since they are not required to first obtain a visa, may apply for TN admission at the border (land port-of-entry or airport preflight inspection). Mexicans, who are required in most situations to hold a valid visa in order to enter the U.S., must apply for a TN visa at a U.S. Consulate before applying for admission in TN status at a U.S. port of entry. Canadians and Mexicans lawfully present in the U.S. and maintaining a valid nonimmigrant status may apply to extend TN status or change to TN status without leaving the U.S. Extensions and changes of status are granted at the discretion of the U.S. Citizenship and Immigration Services (CIS).
Professionals (H-1B Visas)
Professionals working in Specialty Occupations
The H-1B visa classification is for professionals working for a U.S. employer in specialty occupations that require a minimum of a bachelor's degree in a specific academic field. (U.S. law also allows H-1B status for fashion models of distinguished merit and ability as well as individuals providing services to certain Department of Defense projects.) The USCIS applies a strict, and often confusing, definition of which positions qualify as specialty occupations. In addition, before an H-1B petition can be filed with USCIS the employer must obtain a certified "Labor Condition Application" (LCA) from the Department of Labor (DOL) demonstrating, among other things, that it will pay the required wage for the position in the geographic region where the job is located and not adversely affect wages or working conditions of U.S. employees.
As a general rule, a person who is in the U.S. and maintaining a lawful nonimmigrant status may not change to another nonimmigrant status or change employers in H-1B status until he or she applies for, and is granted, such a change by USCIS. However, a provision called "H-1B portability" permits certain individuals already in the U.S. in H-1B status to commence employment for a new employer once the new employer's H-1B petition is filed with USCIS.
H-1B status can be granted for an initial period of up to 3 years with the possibility of extensions for a maximum of 6 years. However, in some situations H-1B status can be extended beyond the 6 year period if a PERM labor certification has been filed with the DOL on behalf of the H-1B employee or an I-140 petition (one of the prerequisites for employment-based green card) has been approved by USCIS. The rules for post-6th year H-1B extensions are complex and compliance requires careful planning and close attention to the H-1B employee’s specific circumstances.
The spouse and minor children of an individual in H-1B status are eligible for H-4 visa status. However, the current law does not allow individuals in H-4 status to work.
The law and procedures in the H-1B context are extremely complicated and require U.S. employers filing H-1B petitions to comply with numerous filing and attestation provisions governed by the DOL and CIS, including an annual cap on the number of new H-1Bs that can be approved and a separate annual cap for nationals of Singapore and Chile). Fines and other penalties can be imposed on U.S. employers who do not follow these provisions. Accordingly, it is very important to discuss the particular circumstances of your possible eligibility for H-1B status with an experienced and competent immigration attorney before proceeding.
Temporary Work Visas for Intracompany Transferee (L-1 Visas)
The L-1 visa is available to employees who are transferred to a U.S. company after having worked at least one of the last three years at a foreign subsidiary, affiliate, branch, or parent company. The L-1A visa is available to employees who have worked abroad, and will continue to work in the U.S., in a managerial or executive capacity. The L-1B visa is available to employees who have worked, and will continue to work in a position requiring "specialized knowledge" of the company’s products or services. L-1A managers and executives can be granted a maximum of 7 years of L-1A status. L-1B specialized knowledge employees can be granted a maximum of 5 years of status. A company seeking to establish a new entity in the U.S. may qualify for a “new office” L, which initially allows 1 year of status and can be extended if the U.S. business can demonstrate sufficient success to the satisfaction of the USCIS at the end of the initial 1 year period.
L-1A managers and executives may qualify for a faster path to lawful permanent resident status (green card) than the normal green card process for employment-based green card applicants. L-1A and L-1B spouses and children are eligible to apply for employment authorization documents (EAD) to allow for work in the U.S. Time in L-1 status is counted against the 6 year maximum period of H-1B status (and time in H-1B status is counted against the maximum allowed period of L-1 status) and thus careful analysis and planning is required for individuals holding L-1 or H-1B status who wish to apply for green cards.
Professional Visas for Australians (E-3 Visas)
For 'Aussies' only
The E-3 visa is for nationals of the Commonwealth of Australia, who intend on entering the U.S. on a temporary basis to perform services in a "specialty occupation." The E-3 nonimmigrant visa is similar to the H-1B visa, including the requirement of filing an LCA with the DOL. Unlike H-4 spouses and children of H-1B nonimmigrants, an E-3’s spouse and minor children (who are granted the same E-3 visas classification) are eligible for an employment authorization document (EAD) to allow work in the U.S. Another advantage of E-3 status is that it takes Australians out of the H-1B cap (which has a long queue and has been reached quickly in recent years). There is a separate annual cap of 10,500 E-3 visas, but that cap has never been reached.
Extraordinary Ability or Achievement Visa (O & P Visas)
The O-1 non-immigrant visa is for an individual 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 his or her achievements. O-2 visas are available for individuals who accompany an O-1 artist or athlete and who are an integral part of the O-1’s performance or event. Spouses and minor children of O’s are granted O-3 status, but are not allowed to work in the U.S.
P visas are granted to:
- qualified individual athletes or members of an internationally recognized group or team (P-1A) and essential members with more than 1 year of experience with an internationally recognized entertainment group (P-1B),
- artists or entertainers (individuals or group members) performing under a reciprocal exchange program (P-2),
- artists or entertainers (individuals or group members) performing, teaching, or coaching in a culturally unique program (P-3),
Spouses and minor children of P visa holders can enter the U.S. in P-4 status but are not allowed to work.
Trainee Work Visa (H-3 Visa)
Temporary Trainee Visa
The U.S. issues H-3 temporary trainee visas to foreign nationals who wish to come to the U.S. for training provided by an American company. H-3 trainee visa holders are allowed to work only for the company that is providing the training and the training must not be designed “primarily to provide productive employment”, i.e., the main objective should be training, not actual work. The U.S. company must show that the proposed training is not available in the trainee’s home country and that it will help the trainee pursue his or her career outside the U.S.
Admission in H-3 status is limited to 2 years. Spouses and minor children of H-3 visa holders are eligible for H-4 visas but are not allowed to work.
Students (F, M & J Visas)
Students and Exchange Visitors
Current law requires all U.S. institutions seeking permission to accept students (F and M visas) and exchange visitors (J visa) to keep detailed data on students, exchange visitors, and their family members through the SEVIS program (Student and Exchange Visitor Information System).
Students seeking to attend school in the U.S. to pursue academic studies or language training (F visa) or vocational/nonacademic studies (M visa). F and M students must prove they have a foreign residence and must always pursue a full course of study as determined by the particular school. Before applying for an F-1 visa, the prospective student must first be accepted for admission by a U.S. school and be issued a SEVIS I-20 form to prove that the admitting institution is authorized to accept foreign students and exchange visitors and that the student or exchange visitor has sufficient financial resources to support themselves during their stay in the U.S.. Employment opportunities for F and M students are quite limited. F-2 visas are given to the dependent spouse and minor children, but employment is not allowed. However, minor children may attend public schools.
J visas (Exchange Visitors) are governed by the provisions of the Fulbright-Hays Act of 1961, officially known as the Mutual Educational and Cultural Exchange Act of 1961. The purpose of the Act is to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. The Exchange Visitor Program is administered by the Office of Exchange Coordination and Designation in the Bureau of Educational and Cultural Affairs. In carrying out the responsibilities of the Exchange Visitor Program, the Department designates public and private entities to act as exchange sponsors. Sponsoring organizations facilitate the entry of foreign nationals into the U.S. as exchange visitors to complete the objectives of one of the exchange visitor program categories, which include programs for Au Pairs, business interns, university and secondary school students, government visitors, physicians, professors and research scholars, summer work/travel, teachers, trainees including hospitality training programs.
J visa programs include requirements for financial resources, English fluency, and maintenance of medical insurance, as well as requiring evidence of a residence abroad to which the J visa holder intends to return following the J visa program. Some J programs include a 2 year foreign residence requirement that prohibits changing to another nonimmigrant visa category or applying for a green card until the individual spends 2 years in his or her home country or country of last residence following the completion of the J program. This foreign residence requirement can be waiver in some cases.
Canadians do not require a visa to enter the U.S. in F, M, or J status but they do require advance approval from the F, M, or J institution before applying for admission to the U.S. at a land port-of-entry or airport preflight inspection.
Please contact Bakken Law if you believe you are subject to the 2 year foreign residence requirement or if you have questions about waiving that requirement.
Ministers and Religious Workers (R-1 Visas)
Temporary Visas for Ministers and Religious Workers
A R-1 is a foreign national who is coming to the U.S. temporarily to be work as a minister or religious worker, terms which have precise definitions and requirement in U.S. immigration law. R-1 status is limited to maximum of 5 years and employment is only allowed for the religious organization that filed the R-1 petition. Spouse and minor children may enter the U.S. in R-2 status, but are not allowed to work.
Family Members (K Visas)
Visas for Fiancé(e), Spouses, and Children
K visas are issued to people who have the intent to immigrate permanently to the U.S. but they are still classified in U.S. immigration law as nonimmigrant (temporary) visas. Following are several visa types for individuals with various familial relationships to U.S. citizens.
The K-1 visa is issued to a foreign national fiancé(e) of a U.S. citizen who is requesting admission to the U.S. for the sole purpose of marrying the K-1 petitioning U.S. citizen. With some exceptions, the fiancé(e) and the U.S. citizen must have met in person within 2 years of the filing of the K-1 visa petition. K-1 visa holders must marry the K-1 petitioning U.S. citizen within 90 days after entry to the U.S. Following a valid, qualifying marriage the K-1 visa holder can apply for a green card in the U.S. through the adjustment of status process. Minor children of K-1 fiances can enter the U.S. in K-2 status.
A K-3 visa is for a foreign national who is married to a U.S. citizen who has filed an I-130 petition on behalf of the foreign national spouse. The K-3 visa allows the spouse and unmarried minor children (issued K-4 visas) to enter the U.S. while the family awaits a decision on the I-130 petition. If the I-130 petition is approved, the K-3 and K-4 can apply for green cards through the adjustment of status process. Employment authorization is available to K-3 and K-4 visa holders. Important note: In order for a K-4 who is a step-child of a U.S. citizen to immigrate as a relative of the U.S. citizen step-parent (whether through adjustment of status in the U.S. or through consular processing of an immigrant visa abroad) the marriage between his or her parent and the U.S. citizen must have occurred before the K-4’s 18th birthday.
Victims of Certain Crimes (U-Visas)
The purpose of the U-visa is give victims of certain crimes temporary legal status and work eligibility in the U.S. for up to 4 years. The U visa is a nonimmigrant visa and only 10,000 U visas may be issued every fiscal year. Family members may also be included on the petition including spouses, children, unmarried sisters and brothers under 18, mothers, fathers, as well as stepparents and adoptive parents. An approved U visa petition will automatically grant the applicant work eligibility in the U.S. An Employment Authorization Document will be included with all approved petitions, which can be shown to any employer to obtain a Social Security Number to start work legally.
Employment authorization document (EAD)
Temporary Work Permit
An employment authorization document (EAD), known popularly as a "work permit", is a document issued by USCIS that provides its holder a legal right to work in the U.S.. It should not be confused with a green card.
Certain individuals who are temporarily in the U.S. may apply for an EAD. EADs may also be issued to some green card applicants who are awaiting final processing of their green card applications. If granted, an EAD is issued for a specific period of time based on alien's immigration situation, usually for 1 year though 2 year EADs are issued in some cases. If necessary, and if the underlying qualifying status continues, an EAD may be renewed
Aliens who are sponsored by U.S. employers and issued temporary work visas, such as H, L, or O visas, are authorized to work only for the sponsoring employer. Foreign nationals with such work visas do not qualify for an EAD according to the USCIS regulations.
Deferred Action for DREAMERS
Deferred action, also known as DACA (Deferred Action for Childhood Arrivals) is a discretionary determination to defer the removal (deportation) of an individual who would otherwise be subject to removal. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the U.S. during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence. Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action. USCIS can terminate or renew deferred action at any time at the agency’s discretion.
To qualify for Deferred Action under DACA, the following conditions must be established:
- Must be born after June 15, 1981
- Arrival in the U.S. before age 16
- Continuous residence in the U.S. since June 15, 2007
- Entered without inspection before June 15, 2012 or lawful status expired before June 15, 2012
- Currently in school or graduated from high school
- Are at least 15 years old at the time of filing
- No disqualifying criminal record
Trader & Investor Visa (E-1 and E-2 Visas)
Business people who conduct a substantial volume of trade in goods or services with the U.S. can potentially qualify for the E-1 trader visa. It is available to citizens from countries that have signed a treaty with the U.S. regulating trade and commerce. Both the business and the individual must qualify for the visa.
The E-2 investor visa is a long-term, renewable work visa granted to business investors from countries that have signed a bilateral investment treaty with the U.S. Both the U.S. business and the individual investor, or employee, must qualify for E-2 visa status. The E-2 investor must prove that he or she will be developing and directing the enterprise, that his or her investment is “substantial” as that term is interpreted by U.S. law, and that the E-2 business entity will contribute to the U.S. economy to an extent that is more than marginal, i.e., the investor cannot invest solely for the purpose of earning a living. In order to increase the chances of success with the initial E-2 visa application and future extensions of status, the business must show a profit and employ as many U.S. workers as possible.
Spouses of E visa holders are allowed to work after obtaining an EAD (employment authorization document). Children of E visa holders are not allowed to work (with the exception of dependent children of employees of the Taipei Economic and Cultural Representative Office).