Non Immigrant Visas
This category includes ambassadors, public ministers, career diplomatic or consular officers, other accredited officials and employees, and the attendants, servants, and personal employees of these enumerated officers who are seeking to enter the United States in connection with official business for their government. Immediate family members of each of these officers are also entitled to this classification.
A-1 classification is accorded to duly accredited foreign diplomatic or consular officers, heads of foreign states, and principal executive, legislative, or judicial officials of foreign states coming to perform official duties for their governments, as well as their immediate family members.
A-2 classification is accorded to full-time employees of foreign diplomatic missions or consular posts who are not within A-1 classification, aliens coming to perform duties and services for their governments in the United States (including participation in international meetings or conferences), and their immediate family members.
A-3 classification is accorded to the attendants, servants, or personal employees of A-1 and A-2 nonimmigrants.
A-1 and A-2 categories, are admitted without time limitation and may remain, without the need to apply for extension of stay, as long as the Secretary of State continues to recognize them as members of the diplomatic category. The A-3 attendant, servant, and personal employee groups are admitted for up to three years, which can be extended for two-year periods upon an appropriate showing of need. Nonimmigrants admitted as family members of A nonimmigrants may also attend school without changing their status.
Spouses and unmarried dependent children of A-1 and A-2 nonimmigrants may be eligible to apply for employment authorization.
This category is for individuals wishing to visit the United States temporarily, either for business or pleasure. These individuals must:
- maintain a foreign residence abroad to which they plan to return at the termination of their stay in the United States;
- provide evidence of how they will support themselves during their stay without having to resort to local employment; and
- show that they have sufficient ties to their home countries to ensure their return at the termination of their stay.
Work and study in the United States are prohibited in the temporary visitor category.
"Pleasure," under the B-2 category is defined as "legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature."
"Business" under the B-1 category refers to "conventions, conferences, consultations and other legitimate activities of a commercial or professional nature"; but it does not involve "local employment or labor for hire," i.e., gainful employment in the United States.
For additional activities permitted in the temporary visitor category, see Foreign Affairs Manual (FAM) §41.31.
Application for the visa is made at a U.S. consular office, usually without documentation other than the passport in which the visa is endorsed. It requires no preliminary petition to another agency and usually results in issuance the same day. For an alien otherwise eligible for "B" classification, the consul may exact the posting of a bond to insure departure by the end of the time for which the alien has been admitted or upon failure to maintain status.
Visitors are to be admitted initially for a period not to exceed one year. Even if less time is required, a visitor for pleasure (B-2), whose passport has the required validity and who is otherwise admissible, is to be granted, initially, at least six months. In individual cases the District Director, or designated supervisory inspector, may for good cause limit admission to a shorter period, notably, if the alien does not possess or have access to funds sufficient to maintain a six-month visit. The B-1 is to be admitted for a period fair and reasonable for the purpose of the trip, and not for a lesser time than required except on authority of a supervisor.
Extensions of stay in B-1 or B-2 are limited to increments of six months except that certain visitors coming to do missionary work may have one-year extensions. No appeal lies from the denial of an extension application.
Seeking to expand travel to the United States and to reduce the administrative burden of issuing visas, Congress in 1986 enacted legislation permitting a pilot visa-waiver program restricted to visitors (B-1 and B-2). This program, now permanent, allows certain aliens to enter the United States for up to 90 days without obtaining a visa. The program is limited to nationals of countries that extend or agree to extend reciprocal privileges to U.S. citizens and that have been designated as a program country. Countries whose citizens are currently eligible for the visa waiver program are as follows: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Canada, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, United Kingdom and Uruguay.
A person admitted under this program cannot be authorized to remain in the United States longer than ninety days, except that, in emergency situations, the district director may permit satisfactory departure within another thirty days without a violation of status. Persons admitted under the visa waiver program may not change nonimmigrant status within the United States; nor may they apply for adjustment of status under INA §245(a), unless they are the immediate relatives of a U.S. citizen or unless they are otherwise eligible for a waiver under §245(i).
When a vessel arrives at a port of entry it is boarded by an immigration officer. The crew list is furnished to the officer and the entire crew is gathered so that the officer can examine each crewmember to determine admissibility to the United States. Very often this examination, usually called the inspection, is quite summary, particularly for large passenger vessels and for crewmembers who have been coming regularly with their vessels or planes. Each crewmember is also examined by a medical officer of the Public Health Service. The purpose of this scrutiny is to determine whether the aliens are admissible under the general immigration laws and whether they are bona fide crewmembers who intend in good faith to leave the United States when the period of their shore leave expires. At the conclusion of the examination the immigration officer decides, in his or her discretion, whether shore leave shall be granted. If the officer's decision is favorable the crewmember is admitted.
The immigration officer can authorize one of two types of shore leave. The first is for alien crewmembers who intend to depart with their vessel or aircraft. Such persons are known as D-1 crewmembers and are permitted shore privileges only while their vessel or aircraft is in the port of arrival or other ports of the United States, but in no event for more than 29 days, provided their passports are surrendered for safe keeping to the master of their vessel. D-1 crewmembers are required to depart with their vessel in the port of arrival and other ports in the United States, but may rejoin their vessel at another United States port, before the vessel touches at a foreign port or place, if they have advance written permission from the master or agent to do so. The second type of admission is for crewmembers who intend to reship or depart on another vessel or plane. Such persons are known as D-2 crewmembers and are allowed temporary admission for a period not in excess of 29 days, to reship, or to depart as passengers if satisfactory arrangements for such departure have been made, and the immigration officer has consented to the crewmembers' pay off or discharge by the vessel on which they arrived.
An alien crewmember ordinarily is ineligible to apply for extension of stay beyond the allotted 29-day period or for change to other nonimmigrant status. However, in the event of illness or injury, the alien crewmember may change from D-1 to D-2 status to allow them to depart on another vessel or plane.
In order to encourage global trade and investment, the United States maintains treaties of friendship, commerce and navigation with many countries around the world. The U.S. immigration laws provide for two particular visas that put these treaties into practice on U.S. soil. A national of a country that maintains a treaty of friendship, commerce and navigation with the U.S. may be eligible to apply for a visa to come to the U.S. to carry on substantial trade between the U.S. and the treaty country (E-1 visa) or to develop and direct a substantial investment (E-2 visa).
In order to qualify for the E-1 Treaty Trader visa, the "principal trader" must be coming to the United States solely to carry on substantial international trade principally between the U.S. and the treaty country of which the "principal trader" is a national. Substantial trade is intended to be continuous, contemplating numerous transactions over time. The trade must exist at the time that the application for the visa is made. Existing trade may consist of successfully negotiated contracts, binding upon the parties, which call for the immediate exchange of items of trade. Principal trade contemplates that over fifty percent of the volume of the international trade be carried on between the U.S. and the treaty country. The trade can include goods and/or services. That the "principal trader" must be a national of the treaty country means that either the individual trader must be a citizen of the treaty country or that at least 50% ownership of the company engaged in the trade must be held by citizens of the treaty country.
In order to qualify for the E-2 Treaty Investor visa, the treaty investor must have invested or be actively in the process of investing a substantial amount of capital in a bona fide enterprise in the Unites States. They must be seeking entry solely to develop and direct the enterprise. A bona fide enterprise for purposes of the visa is one that is a real, active and operating commercial or entrepreneurial undertaking that produces services or goods for a profit. The capital for the investment must be placed at risk by the treaty investor in a commercial sense with the objective of generating a profit. That means that the money must be irrevocably committed to the treaty enterprise and subject to a partial or total loss should investment fortunes reverse. There is no minimum dollar amount for the investment. However, the investment must be more than a marginal one that exists solely to provide a living for the visa holder and their immediate family. Both the State Department and the INS have determined that even an investment of under $50,000 may be sufficient in a service enterprise where start-up costs are relatively low and the principal "investment" is the knowledge and skills of the employees. The treaty investor must demonstrate that they will develop and direct the investment enterprise. They must establish control over the enterprise by demonstrating ownership of at least 50% of the enterprise and their position must be principally executive or supervisory in nature.
Treaty investors and traders may also apply for their supervisory or executive employees and/or employees who have special skills that are essential to the successful or efficient operation of the treaty enterprise.
Spouses and minor children of treaty investors or traders may obtain derivative status to that of the principal treaty alien. These family members need not be nationals of the treaty country. Spouses in "E" status are currently eligible to apply for employment authorization incident to their status. Minor children are not eligible to receive employment authorization.
A treaty investor or trader may be admitted for an initial period of no more than two years. Requests for extension of stay may be granted in increments of not more than two years. There is no specified number of extensions of stay that a treaty trader or investor may be granted. As a result, a treaty trader or investor and their spouses and minor children may remain in such status indefinitely, provided that the treaty enterprise continues to operate according to the requirements of the visa and that the treaty trader or investor maintains the intent to the depart the U.S. upon expiration of the visa.
Although as a general rule, F-1 foreign students are not authorized for employment in the U.S., there are certain exceptions to this rule. The following types of employment have been found acceptable for foreign students:
- On-campus employment - An F-1 student may accept on-campus employment without specific authorization from the INS provided that the student is engaged in a full-time course of study and the employment will not displace a U.S. worker.
- Off-campus employment due to severe economic hardship - When a situation arises of urgent financial need based on unforeseen circumstances beyond the student’s control, the student may request approval from the INS for part-time off-campus employment (20 hours per week or less during school but full-time during school vacations and holidays). This exception only applies after a student has been in school full-time for at least one year.
- International organization internships -- An F-1 student who has been offered employment with an international organization that qualifies under the International Organizations Immunities Act may accept such employment upon the submission of an in-person application to the INS office with jurisdiction over the student's place of residence.
- "Special student relief" -- F-1 students whose means of financial support come from Indonesia, South Korea, Malaysia, Thailand, or the Philippines may be able to work either on- or off-campus if the economic crises in those countries has caused them severe economic hardship. Full-time work is acceptable, but there is a specified minimum number of credit hours that the student must be enrolled for in order to accept employment. Employment authorization must be obtained prior to accepting employment.
- Curricular practical training -- Curricular practical training refers to programs that are "an integral part of an established curriculum." Students enrolled in a college, university, conservatory or seminary are eligible to apply to the DSO for authorization to participate in a curricular practical training program. The training must be either alternate work-study, an internship, cooperative education, or any other type of required internship or practicum that is offered by a sponsoring employer through a cooperative agreement with the school. Participating students must be enrolled full-time for at least one year prior to applying for authorization and the program must be directly related to their major area of study.
- Optional practical training - An F-1 student may apply for employment authorization for an aggregate period of up to 12 months either during or at the completion of their studies in an occupation that is directly related to the student’s major area of study. The training must be completed within 14 months after completion of studies. Students in English language, elementary, or secondary programs are ineligible for practical training. Application is made to the DSO.
F-2 spouses and children are not eligible to obtain employment authorization.
The United States is a member in various international organizations and recognizes that many aliens necessarily enter this country to participate in the affairs of such organizations. Therefore, the Immigration and Nationality Act (INA) grants nonimmigrant status to the following groups of aliens identified with designated international organizations:
G-1 Principal resident representatives of a recognized foreign member government to an international organization, their staff, and members of their immediate family.
G-2 Other representatives of a recognized foreign member government to an international organization, and members of their immediate family.
G-3 Representatives of a nonrecognized or nonmember foreign government to an international organization, and members of their immediate family.
G-4 International organization officers or employees, and members of their immediate family.
G-5 Attendants, servants, or personal employees of G-1, G-2, G-3 and G-4 classes, and members of their immediate family.
The international organizations referred to in this section are those designated by executive order of the President as entitled to benefits under the International Organizations Immunities Act. The President thus far has designated the following organizations for this purpose:
African Development Bank; African Development Fund; Asian Development Bank; Caribbean Organization (formerly Caribbean Commission); Commission for the Study of Alternatives to the Panama Canal; Commission for Environmental Cooperation; Commission for Labor Cooperation; Border Environmental Cooperation Commission; North American Development Bank; Customs Cooperation Council; European Bank for Reconstruction and Development; European Space Agency (formerly European Space Research Organization); Food and Agriculture Organization; Great Lakes Fishery Commission; Inter-American Defense Board; Inter-American Development Bank; Inter-American Institute for Cooperation on Agriculture (formerly Inter-American Institute of Agricultural Sciences); Inter-American Investment Corporation; Inter-American Statistical Institute; Inter-American Tropical Tuna Commission; Intergovernmental Committee for Migration (ICM) (formerly Intergovernmental Committee for European Migration (ICEM)); Intergovernmental Maritime Consultative Organization; International Atomic Energy Agency; International Bank for Reconstruction and Development; International Boundary and Water Commission, United States and Mexico; International Center for Settlement of Investment Disputes; International Civil Aviation Organization; International Coffee Organization; International Committee of the Red Cross; International Cotton Advisory Committee; International Criminal Police Organization; International Development Association; International Fertilizer Development Center; International Finance Corporation; International Food Policy Research Institute; International Hydrographic Bureau; International Institute for Cotton; International Joint Commission-United States and Canada; International Labor Organization; International Maritime Satellite Organization; International Monetary Fund; International Organization for Migration (formerly Intergovernmental Committee for European Migration); International Pacific Halibut Commission; International Secretariat for Volunter Service; International Telecommunications Satellite Organization; International Telecommunication Union; International Wheat Council; Multinational Force and Observers; Multilateral Investment Guarantee Agency; North Pacific Anadromous Fish Mission; North Pacific Marine Science Organization; Organization of African Unity; Organization of American States (includes Pan American Union); Organization for Economic Cooperation and Development; Pacific Salmon Commission; Pan American Health Organization (includes Pan American Sanitary Bureau); South Pacific Commission; United International Bureau for the Protection of Intellectual Property; United Nations; United Nations Educational, Scientific and Cultural Organizations; United Nations Industrial Development Organization; Universal Postal Union; World Health Organization; World Meteorological Organization; World Intellectual Property Organization; and World Tourism Organization.
International organization aliens (G-1 to G-4) are admitted without time limitation and are permitted to remain as long as the Secretary of State continues to recognize them as members of this class. There is no requirement that they must have a foreign residence to which they intend to return. G-5 attendants, servants and personal employee group are usually admitted initially for a period not exceeding three years. G-5 aliens may apply for extensions of temporary stay in two-year increments by attaching a written statement from the principal alien describing the current status and intended employment of the applicant.
Dependents of G-1 and G-3 aliens may apply for permission to work if there is a reciprocal work arrangement between the United States and the principal alien's state of nationality. A G-4 dependent of an officer or employee of an international organization may obtain approval to accept employment whether or not there is a reciprocal work agreement in force between the United States and the principal alien's state of nationality.
The H-1B petitioner is further required to make a statement in connection with the petition that it will pay the reasonable expenses of the H-1B worker’s return transportation abroad in the event of dismissal before the end of the period of authorized stay. In most cases, the petitioner is also required to pay $1,000 in addition to the regular filing fee. Those cases are as follows:
- on an initial grant of H-1B status;
- on an extension of H-1B stay, unless the alien's stay had earlier been extended on the petition of that employer; or
- on a petition for change of employers for an alien already in H-1B status.
A petition may be filed and approved as long as six months before the services or training are to begin. If it is approved before the starting date, the petition's validity will reflect the actual period sought. The petitioner must file an amended or new petition, with fee, whenever there are material changes in the terms or conditions of employment or training, or in the beneficiary's eligibility, as specified in the original approved petition. The initial approval period for the H-1B is three years with one extension of three years. The petition for extension is only permitted while the beneficiary is in the United States and by the petitioner's request to extend the beneficiary's stay. At the termination of the six-year period, the H-1B worker must remain abroad for an aggregate period of one year in order to obtain a new nonimmigrant classification.
In October, 2000, Congress passed The American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Under AC21, certain aliens who have previously been in H-1B status may begin employment with a new H-1B employer upon the filing of an H-1B petition by the new employer. What this means is that the H-1B employee need not wait for INS approval of the new H-1B petition before beginning work for the new employer. This increased ''portability'' has allowed businesses to fill vacancies with H-1B employees without having to wait months for INS to approve H-1B petitions.
Immigration Service regulations provide for "dual intent" for H-1B beneficiaries. This means that the H-1B worker may legitimately come to the United States for a temporary period as an H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. H-1B applicants for adjustment and their family dependents may continue to maintain their nonimmigrant status during the processing of their permanent residency and may leave and return to the United States in such status, instead of securing advance parole, without abandoning their adjustment applications. Even if they do get advance parole and are paroled into the United States, they may continue to work for the H-1B employer in their former status and obtain extension of that status.
Spouses and children of H-1B nonimmigrants are admitted in H-4 status. These spouses and children may not be employed in the U.S. unless they are eligible independently for employment authorization.
This category replaces and repeals the H-1A category established by the Immigration Nursing Relief Act of 1989 (INRA). The new nonimmigrant classification for nurses, H-1C, was established by section 2 of the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA). The purpose of this provision is to make foreign nurses available for work in medical facilities located in areas currently underserved by registered nurses. It limits H-1C nurses to a three-year stay with no extension and sets a cap of five-hundred (500) new H-1C nurses per year with a limit of 25-50 visas per state depending on population. This category will sunset four (4) years from the promulgation of regulations. Although this category is modeled after the old H-1A category, its extreme limitations (500 cap, 25-50 per state cap, a limited list of hospitals that can petition and a four-year sunset) make its application very impractical.
Alleged labor shortages in the United States have long resulted in various measures to facilitate the importation of temporary workers, the majority of whom are farmworkers. The hiring of such workers has always been controversial. The goals of the H-2A program are the same as for the H-2 program overall: to try to find domestic workers if possible, and, if not, to make sure foreign workers do not adversely affect the wages and working conditions of similarly employed U.S. workers. One unique aspect of the H-2A process is that the employer must guarantee many employee benefits, including housing, food, tools, and return transportation.
Applications must be filed with three agencies:
- a temporary labor certification application with the DOL;
- a temporary worker petition with the INS; and
- an individual visa application at a State Department consulate overseas by the named visa beneficiary.
The H-2A provision of the Immigration and Nationality Act (INA) allows foreign farmworkers to be admitted to the United States as nonimmigrants to perform agricultural labor of a temporary or seasonal nature. To bring in foreign farmworkers under the H-2A program, a petitioner must prove that (1) ''there are not sufficient [U.S.] workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the [agricultural] labor or services involved in the petition,'' and (2) there will be no adverse effect ''on the wages and working conditions of workers in the United States similarly employed.''
Labor Department regulations require an employer to furnish an H-2A worker on or before each payday a written statement of the person's total earnings and whether the pay is at an hourly or piece rate. The statement must also list the hours offered, the hours actually worked, and an itemization of all deductions made. Violation of these reporting requirements can result in sanctions being imposed on the employer, including the denial of future labor certification privileges.
A foreign farmworker can normally be admitted on an H-2A visa for up to a year. An extension must be granted for any stay beyond that.
Spouses and children of H-2A nonimmigrants are admitted in H-4 status. They may not accept employment in the United States unless they are eligible independently for employment authorization.
This category is for individuals coming to the United States to perform temporary services generally for a period of one year or less, but in no event for more than three years. The requirements of this visa are that:
- the applicant must have a residence in a foreign country which he has no intention of abandoning;
- the applicant is coming temporarily to the United States to perform a temporary service or labor; and
- unemployed persons capable of performing such service or labor cannot be found in this country.
The visa also requires a labor certification.
The employer of an H-2B worker has an obligation to pay the cost of return transportation abroad if the employee is prematurely dismissed.
The temporary nature of the employment and the labor certification requirement make this visa difficult to obtain and limited in its usefulness. The occupations for which this visa may be useful are as follows: camp counselor, entertainers or athletes, a technician or craftsman as a trainer for a particular project, personal servants of U.S. foreign service officers on tour in the U.S., and sheepherders.
Spouses and children of the H-2B worker are admitted in H-4 status. They may not accept employment unless they have some independent eligibility for employment authorization.
This category is generally referred to as the Principal Trainee Category. It permits training in a wide variety of activities provided that the following four conditions are met:
(1) The proposed training is not available in the alien's own country;
(2) The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed;
(3) The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and
(4) The training will benefit the beneficiary in pursuing a career outside the United States.
The following restrictions test whether these four conditions have been met:
- The program may not result in productive employment beyond the need to train;
- The program must not be designed to enlist aliens for the petitioner's regular U.S. staff;
- The program must have a fixed schedule, objectives, and means of evaluation;
- The program must not be incompatible with the petitioner's business;
- It must be possible to clearly accomplish the program with the petitioner’s plant and staff;
- The program must not seek to teach skills that the trainee already has or is unlikely to use outside the United States;
- The program may not extend the total allowable period of practical training previously authorized the trainee as a nonimmigrant student.
The H-3 petition must be supported by a statement including a breakdown of hours for any classroom instruction or on-the-job training; the proportion of time devoted to productive employment; the career abroad for which the training will prepare the trainee and why the trainee needs be trained in the United States. The statement must also indicate the source of any compensation to the trainee and what benefit the petitioner will derive. The maximum validity of the H-3 visa is two (2) years. The spouse and minor children of the H-3 trainee may accompany the H-3 trainee in H-4 status. They may not accept employment in the United States unless they have some independent eligibility for employment authorization.
The first step in attaining exchange visitor status is for the sponsoring organization or agency to formulate an exchange program and present it to the Department of State for approval. J-1 program sponsors include federal, state, or local government agencies like the Department of State, the Agency for International Development, and the State Department's Bureau of Educational and Cultural Affairs itself; international agencies and organizations; educational institutions such as schools, libraries, museums, and institutions devoted to scientific and technological research; educational consortia; hospitals and related institutions; non-profit associations, foundations, and institutes; business and industrial concerns; and host organizations to international conferences.
The application for program designation must satisfy the following general criteria:
- The program must be a bona fide educational and cultural exchange program, and the applicant should clearly define the specific purposes and objectives of the program;
- The program must provide for at least five exchange visitors per year;
- The program must provide cross-cultural activities for the exchange visitor;
- The program must be reciprocal whenever possible;
- All non-government sponsored programs must allow for a minimum stay in the United States for any exchange visitor, except short-term scholars, of three weeks;
- Applicants must provide information regarding the sponsoring organization's legal status, citizenship, accreditation, and licensure;
- Non-government applicants must show that they are financially stable and that they will be able to fulfill all of their financial duties related to the exchange visitor program, including the ability to provide return-trip airfare for exchange visitors to their home countries;
- Applicants must assure that the purpose of the program is not to fill staff vacancies and that the program will not adversely affect the U.S. labor market;
- Applicants must assure that every exchange visitor will be adequately covered with insurance while participating in the exchange program; and
- Applicants should provide full details regarding the selection, placement, orientation, evaluation, and supervision of the exchange visitors. If other organizations are involved, either in the United States or overseas, with the selection, placement or orientation, full details should be given about them.
To obtain a J-1 nonimmigrant visa the noncitizen must establish to the satisfaction of the consular officer that:
- the noncitizen has been accepted and intends to participate in an approved exchange visitor program;
- the noncitizen has, or has been assured of, sufficient funds;
- the noncitizen has adequate knowledge of English or, except for a noncitizen coming to participate in a graduate medical education or training program, has been accepted by the sponsoring organization with knowledge of deficiency in this respect; and
- the noncitizen meets the requirements of Immigration and Nationality Act (INA) § 212(j) if coming to participate in a graduate medical education or training program.
The types of exchange visitors encompassed by this program include but are not limited to: students, professors and research scholars, short-term scholars, trainees, specialists, foreign medical graduates, international and government visitors, teachers, camp counselors and au pairs.
A J-1 exchange visitor is admitted for ''D/S'' (duration of status), plus a period of 30 days for the purpose of travel. The duration of status depends upon the length of the program in which they are coming to participate.
Exchange visitors whose employment is incident to status with the program sponsor (e.g., professors and research scholars) need no special document to permit their employment, and may receive compensation from the program sponsor. Other exchange program categories allow exchange visitors to work part-time, with proper approval and provided that certain criteria are met. The spouse and minor children of an exchange visitor will be permitted to accept employment only if the income from such employment is to be used to support the family's customary recreational and cultural activities and related travel, among other things, but not if it is needed to support the J-1 principal.
A J exchange visitor does not have to apply for approval of an extension of stay. A responsible officer may grant an extension of stay up to the authorized limit for the specific exchange visitor category. Also, an exchange visitor is generally eligible to change from J-1 status to another nonimmigrant status. However, foreign medical graduates coming to the United States for graduate medical education or training may not change status to any nonimmigrant classification except, under very limited circumstances, to H-1B.
Under certain circumstances, individuals admitted to the U.S. in J-1 status are subject to a requirement to reside abroad for two years before they are eligible to obtain lawful permanent residency or to obtain an H or L visa. This “two-year home residency requirement” applies to the following three groups:
- those whose J-1 participation was financed either by the U.S. government or the government of the person’s country of nationality or last residence;
- those who participated in the J-1 program to obtain skills clearly required by the person's country of nationality or last residence; and
- foreign doctors coming for graduate medical education or training.
Exchange visitors subject to the two-year home country residence requirement may seek a waiver of that requirement in four situations:
- upon request of an interested government agency with evidence that the exchange visitor's departure would be clearly detrimental to a program or activity of official interest to an agency of the U.S. government;
- where it has been determined by the INS Commissioner that the exchange visitor's departure would impose exceptional hardship on their U.S. citizen or lawful resident alien spouse or child;
- upon a showing that the exchange visitor cannot return to their country of nationality or last residence because they would be subject to persecution on account of race, religion, or political opinion; or
- where the foreign country of the exchange vistior’s nationality or last residence has furnished the Department of State with a statement in writing that it has no objection to such waiver in the case of such exchange visitor.
A favorable recommendation by the Department of State is an indispensable prerequisite to the procurement of a waiver. The regulations state that upon receipt of a request for a waiver recommendation, the request will be referred to the Department of State's Waiver Review Division, which shall review the program, policy and foreign relations aspects of the case, make a recommendation, and forward it to the INS Commissioner. Upon receipt of the Department of State's recommendation the INS decides the waiver application on the basis of the documents submitted and any supplementary interviews and investigations deemed appropriate.
No action is taken to enforce the exchange visitor's departure while a formal application for a waiver is under consideration or when the Service is informed that a request for initiating the waiver process has been made to an interested government agency or to a foreign government, and is pending with such agency or government or with the Department of State.
Spouses and children of J-1 nonimmigrants are admitted in J-2 status. A J-2 may apply for work authorization on at the local INS office having jurisdiction over the J-1 principal's temporary place of residence in the United States. The purpose of the request for employment must not be to support the J-1. J-2 employment may be authorized for the duration of the J-1's stay or four years, whichever is shorter. Generally authorization is granted in cases where there is need to assist in the support of minor children or to enable the J-2 dependent to maintain a lifestyle comparable to that at home.
This category is for noncitizen fiance(e)’s of U.S. citizens who wish to enter the United States to marry the U.S. citizen petitioner.
In order for a K-1 nonimmigrant visa to be granted, the U.S. citizen petitioner must first file a nonimmigrant visa petition on behalf of the fiance(e) who is residing outside the United States. Approval of the petition depends upon presentation of satisfactory proof that the U.S citizen petitioner and fiance(e):
- Previously met in person within two years before filing the petition, although this requirement of personal meeting may be waived by the Attorney General;
- Have a bona fide intention to marry; and
- Are legally able and willing to conclude a valid marriage in the United States within ninety days after the noncitizen fiance(e)’s arrival.
A visa petition approved under this section is valid for a period of four months, but can be revalidated any number of times for another four-month period provided that the requirements for the visa continue to be met. However, repeated requests for revalidation may call into question the parties’ intentions. The minor children of a K-1 fiance(e) receive derivative K-2 status with no separate petition requirement. A K-1 noncitizen fiance(e) is admitted to the United States for ninety (90) days and can neither change nor extend their status. The K-1 fiance(e) may apply for employment authorization, but it is rarely granted before the 90 days expires. The U.S. citizen petitioner and the K-1 fiance(e) must be married prior to the expiration of the K-1 fiance(e)’s stay. If not, the K-1 fiance(e) must depart the United States or become subject to removal.
This category is for spouses and children of U.S. citizens for whom an I-130 petition has been filed but for whom an immigrant visa has not yet been issued. The K-3 visa is valid during the pendency of the I-130 petition and during the waiting period for the issuance of an immigrant visa. There is no requirement that an I-130 petition have been filed for a K-4 child, as the child derives status from the K-3 petition filed on behalf of the parent. However, once the K-3 nonimmigrant adjusts status, the K-4 child loses his lawful nonimmigrant status. As a result, it is advisable to file an I-130 petition for the children concurrently with the I-130 petition filed for the spouse.
The K-3 petition must be filed with the INS in the United States and then the approved petition must be forwarded to a U.S. consulate abroad for visa issuance. A noncitizen admitted to the United States in another nonimmigrant category may not change status to K-3 or K-4. The visa must be obtained from a U.S. consulate in the country where the marriage was solemnized.
K-3 and K-4 applicants generally receive ten-year, multiple entry visas. Admission of a K-3 nonimmigrant is for two (2) years; a K-4 nonimmigrant for two (2) years or until their 21st birthday. Both K-3 and K-4 nonimmigrants may apply for extension of stay 120 days before the expiration of their authorized period of stay. They are also eligible to apply for employment authorization. However, employment authorization may be renewed only upon a showing that the noncitizen has either an application for immigrant classification or an adjustment of status pending. Individuals in K-3 or K-4 status may travel outside the United States without advance parole, even if they have a pending adjustment of status application.
Intracompany transferees are aliens who come to the United States to work in a managerial, executive or specialized knowledge capacity for a U.S. parent, branch, affiliate or subsidiary of their foreign employer. In order to qualify for the visa, the alien must have been employed continuously with the foreign employer for one year during the previous three years. A manager is defined by the regulations as an employee who manages the organization or a department, supervises the work of other professional employees, has the authority to hire and fire and exercises discretion over the day to day operations of the organization or his department. An executive directs the management of the organization, establishes goals and policies, exercises wide latitude in discretionary decision making and receives only general supervision from higher level executives. A specialized knowledge employee is a professional possessing special knowledge of the company’s particular product or service. Managers and executives are eligible for the L1-A visa, while specialized knowledge employees are eligible for the L1-B visa.
A qualifying U.S. company (petitioner) must be a parent, branch, affiliate or subsidiary of the foreign company. The U.S. company must be doing business actively in the U.S., and not be merely exist as an office or agent of the foreign company. The foreign company must also continue to operate during the validity of the L-1 petition.
The petition must be filed with:
- Evidence of the qualifying relationship between the U.S. and the foreign employer;
- Evidence that the employee’s prior year of employment abroad was in a position that was managerial, executive, or involved specialized knowledge;
- Evidence that the employee’s prior education, training and employment qualify them to perform the intended services in the U.S. (the work in the U.S. need not be the same work that the employee performed abroad);
- Evidence that the employee will be employed in an executive or managerial capacity or in a position involving specialized knowledge, including a detailed description of the services to be performed.
If the employee is coming to the U.S. as an executive or manager to open a new office or to be employed in an office that has been open for less than one year, then the petition must include the following additional evidence:
- Sufficient physical premises to house the new office have been secured;
- The employee has been employed for one continuous year in the three year period preceding the filing of the petition in an execute or managerial capacity and the proposed employment involves executive or managerial authority over the new operation; and
- Within one year of approval, the intended U.S. operation will support an executive or managerial position.
If the employee is coming to the U.S. to work in a specialized knowledge capacity, the following additional evidence is required:
- Sufficient physical premises to house the new office have been secured;
- The business entity in the U.S. is or will be a qualifying organization with respect to its affiliation with the foreign entity; and
- The petitioner has the financial ability to remunerate the employee and to commence doing business in the U.S.
Certain large multinational corporations who regularly file "L" petitions may wish to obtain continuing approval of all branches of its organization as qualifying. This simplifies the process of approving and admitting additional individual L-1A and L-1B workers. In order to qualify for blanket approval, the petitioner must meet the following requirements:
- the petitioner and each of the entities sought to be qualified are engaged in commercial trade or services;
- the petitioner has an office in the U.S. that has been doing business for one year or more;
- the petitioner has three or more domestic and foreign branches, subsidiaries or affiliates;
- the petitioner and its affiliates have obtained approval of petitions for at least ten "L" managers, executives or specialized knowledge professionals during the previous twelve months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a U.S. work force of at least 1,000 employees.
Limitations on Stay
The initial period of stay for an L-1 employee is one (1) year in a new office and three (3) years in an existing office. Extensions can be obtained in increments of two (2) years for a maximum of seven (7) years for managers and executives and five (5) years for specialized knowledge professionals. Indefinite extensions may be obtained for employees whose annual U.S. stay in L-1 status (and the annual stay of their dependent family members) does not exceed six (6) months in the aggregate. An employee who has exhausted his five (5) or seven (7) year maximum stay must depart the U.S. for a period of one continuous year in order to re-enter in L-1 status.
L-1 executives and managers whose duties become permanent during their stay in L-1 status may qualify for permanent residency under the employment based first preference (EB-1) category. For a specific discussion of permanent residence for multinational executives and managers, click here.
Spouses and minor children of L-1 employees are eligible to accompany the L-1 employee to the U.S. in L-2 status. L-2 spouses are currently eligible to file for employment authorization incident to their status. Such employment authorization is valid for any type of lawful employment in the United States. L-2 minor children are not eligible to receive employment authorization incident to their status.
This is the nonacademic or vocational student category. A preliminary requirement for this category is that successful completion of the course of study must lead to the attainment of a specific educational or vocational objective. The ''full course of study'' requirement for nonacademic students will be satisfied in the following situations:
- Study at a community college or junior college certified by a school official to consist of at least 12 semester or quarter hours of instruction per academic term, except where the student needs a lesser course load to complete the course of study during the current term.
- Study for at least 12 hours weekly or its equivalent in a postsecondary vocational or other business school, but not in a language training program except one in the English language at the school where he or she will engage in a vocational or technical course, which confers associate or other degrees or whose credits are accepted unconditionally by at least three institutions of higher learning.
- Study in a vocational or other nonacademic curriculum, but not in a language training program except one in the English language at the school where he or she will engage in the vocational or technical training, certified by a designated school official to consist of 18 hours of classroom attendance a week if the dominant part of the course of study consists of classroom instruction, or at least 22 hours a week if the dominant part of the course of instruction consists of shop or laboratory work.
- Study in a vocational or other nonacademic high school curriculum, for not less than the minimum hours prescribed by the school for normal progress towards graduation.
The foreign student must first contact the school that they wish to attend. The Designated School Official (DSO) at the school will determine whether the student meets the eligibility requirements for attendance. Once the DSO is satisfied, the school issues a Certificate of Eligibility on form I-20M.
Once the I-20M has been issued, the foreign student may then apply for the visa at the consulate. It is possible to apply for a change of status from another nonimmigrant classification to the M-1 classification, but a recent INS rule has limited the ability of foreign students to change their status in the United States. As of April 12, 2002, in order to be eligible to change status, the foreign student must notify the Immigration Inspector upon admission that they intend to pursue a course of study in the United States and to change to M-1 status upon finding a suitable school. The Immigration Inspector is then required to note “Prospective Student” on the foreign student’s I-94 form.
Foreign students seeking M-1 status must establish the following to the satisfaction of the consular officer:
- That they have been accepted by an approved school in the United States, evidenced by the certificate of eligibility (Form I-20M-N), signed by the student;
- Possesses sufficient funds or have made other arrangements to cover expenses; and
- Have sufficient scholastic preparation and knowledge of the English language to pursue a full course of study, or if the student's knowledge of English is inadequate, the approved school has accepted him or her for study in a language with which the student is familiar, or has made special tutoring arrangements that are adequate to enable the student to pursue a full course of study.
Nonacademic students (M-1) are admitted for one year or for the period necessary to complete their course of study plus 30 days thereafter to depart, whichever is less. Their spouses and children are eligible to accompany them in M-2 status and are admitted for the same period as the M-1 student.
M-1 students may obtain permission for practical training to begin only after completion of the course of study. The application for such permission must be submitted before the expiration of the student's authorized period of stay and not more than 60 days before or more than 30 days after completion of the course of study. M-1 students seeking approval for practical training must submit Form I-765 and a I-20 ID endorsed for training by the DSO. A personal appearance by the student is also required.
Spouses and children of M-1 nonimmigrants are admitted in M-2 status. They may not accept employment without an independent nonimmigrant classification permitting employment or another independent basis for employment authorization.
To qualify for an O-1 visa, the beneficiary must meet high standards. The alien must have extraordinary ability in the sciences, arts, education, business, or athletics, or must have a record of extraordinary achievement in television or motion pictures.
There are two separate categories of O-1 visas:
- a general classification for aliens of extraordinary ability; and
- a classification for aliens with a ''demonstrated record of extraordinary achievement'' employed in the motion picture and television industries.
While the statute includes aliens in the arts, sciences, education, business and athletics in one O-1 classification and aliens in the television and motion picture industries in another, the regulations actually delineate O-1 aliens as follows:
- O-1 aliens of extraordinary ability in the arts;
- O-1 aliens of extraordinary achievement in the motion picture or television industries;
- O-1 aliens of extraordinary ability in the sciences, education, business or athletics.
As defined in the statute, the alien's extraordinary ability must be demonstrated by "sustained national or international acclaim." The requirement of "sustained" acclaim excludes aliens with extraordinary talent or extraordinary ability who have not yet achieved significant recognition for their talents or whose achievements have been short-lived. However, the alien's renown need not cross country boundaries because the statute includes national as well as international acclaim. Additionally, the alien beneficiary need not have any specific level of education.
Under the regulations, extraordinary achievement for those in motion pictures and television and extraordinary ability for those in the arts can be shown by documentation that the alien has been nominated for or been the recipient of significant national or international awards or prizes such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or by documentation of at least three of the following accomplishments:
- Services, performed and to be performed, as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;
- National or international recognition for achievements evidenced by critical reviews of other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
- Performance in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as shown by articles in newspapers, trade journals, publications, or testimonials;
- A record of major commercial or critically acclaimed successes, as evidenced by such indicators as title, rating, or standing in the field, box office receipts, credit for original research or product development, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
- Significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form that clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or
- A high salary or other substantial remuneration for services in relation to others in the field, in the past or the future, evidenced by contracts or other reliable evidence.
- Other comparable evidence if the above standards do not readily apply to the occupation.
The regulations list the following types of evidence needed to show extraordinary ability in the sciences, business, education, and athletics: receipt of a major, internationally-recognized award, such as the Nobel Prize, or at least three of the following forms of documentation:
- Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
- Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
- Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
- Evidence of the alien's original scientific, scholarly or business-related contributions of major significance in the field;
- Evidence of the alien's authorship of scholarly articles in the field, in professional journals or other major media;
- Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
- Evidence that the alien has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
O-2 visas are reserved for aliens who accompany and assist an O-1 alien in a specific athletic or artistic event; aliens may not qualify for O-2 in the fields of education, science, or business. O-2 aliens must be an integral part of the performance and must have critical skills and experience, not of a general nature, which cannot be performed by other individuals. O-2 aliens may not work separate and apart from the principal O-1 alien. The statute sets forth separate requirements for O-2 aliens in the motion picture and television industries. These assistants must have skills or experience with the O-1 alien, not of a general nature, that are critical, either because of a previous, longstanding working relationship, or, with respect to the specific production, because much of the main parts of the production work will be done both inside and outside the United States and the continuing participation of the alien is essential to the completion of the production.
In order to obtain the O visa, the employer or agent files a petition with the INS service center having jurisdiction in the area where the alien will be employed. Approval of an O visa petition generally requires an appropriate consultation with an individual or peer group in the alien's field. (The consultation is actually a written opinion from the individual or peer group.) Both O-1 and O-2 petitions in the motion picture or television industries require both management and labor organization consultations. The evident purpose of the consultation is to support the claim of extraordinary ability or achievement with an outside opinion. However, the procedure is required even where the alien is famous or the claim is clearly established by other documentary evidence.
Although submitted well in advance of the proposed starting date, the petition will be approved only for the actual dates requested by the petitioner. The maximum period of validity of an approved O-1 or O-2 petition is three years. An O alien may be admitted to the United States for the validity period of the petition, plus up to ten days before the services begin and ten days after they end, but may not work during either ten-day period.
To obtain an extension for the purpose of completing or continuing the activity or event specified in the original petition, the petitioner must file both a request to extend the validity of the original petition, and a request to extend the alien's period of stay. The dates of extension for the petition and the stay are the same.
A petitioner may seek to extend an O-1 (or O-2) visa petition in one year increments to complete or continue the same activity or event specified in the original petition. The O classification does not have an overall time limit on length of stay. The nature of the activity or event will itself control the length of the stay.
Dependent spouses and children of O-1 and O-2 aliens are admitted in O-3 status. They may not accept employment unless they have an independent basis for employment authorization.
P visas are reserved for athletes and certain entertainers who have achieved national or international recognition as outstanding in the discipline. The P category has three subdivisions:
- P-1 aliens are defined as members of entertainment groups or individual athletes and members of athletic teams;
- P-2 aliens are entertainers who are part of reciprocal international exchanges; and
- P-3 aliens are those coming to perform in programs that are culturally unique.
The most striking feature of the P visa definition is that individual entertainers are excluded, except for reciprocal exchanges and culturally unique performers. All P nonimmigrants must seek to enter the United States temporarily and are required to have a residence abroad that they do not intend to abandon. However, a P nonimmigrant may pursue a plan to immigrate to the United States, so long as he or she maintains P status.
The regulations permit essential support aliens to be admitted in the same classification as the principal alien. To qualify, the accompanying alien must perform support services which cannot be readily performed by a United States worker, and which are essential to the principal alien's performance. Furthermore, the accompanying alien must also be qualified to perform the services, have critical knowledge of the specific services to be performed, and have experience in providing such support to the principal alien.
P-1 classification is available to an athlete who is internationally recognized as an individual; alternatively, each member of an athletic team or group (two or more individuals) may be admitted as a P-1 alien if the team as a unit is internationally recognized, even if its individual members are not. Both the athlete and the position must meet standards of eligibility. The position must have a distinguished reputation and require the participation of an individual or team with a distinguished reputation.
Petitions for P-1 athletes require a tendered contract with a major United States sports league or team, or a tendered contract in an individual sport commensurate with international recognition in that sport (if such contracts are normally executed in the sport), and documentation of at least two of the following:
- Evidence of having participated to a substantial extent in a prior season with a major United States sports league;
- Evidence of having participated in international competition with a national team;
- Evidence of having participated to a substantial extent in a prior season for a United States college or university in intercollegiate competition;
- A written statement from an official of a major United States sports league or an official of the governing body of the sport which details how the alien or team is internationally recognized;
- A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;
- Evidence that the individual or team is ranked if the sport has international rankings, or
- Evidence that the alien or team has received a significant honor or award in the sport.
P-1 athletes must be coming to perform at a specific athletic competition
P-1 status is available only to those entertainers who perform (or are an integral part of the performance) as members of an entertainment group. However, if a solo artist usually performs with the same back-up singers or musicians, the act may be classified as a group. Entertainers admitted as P-1 nonimmigrants must perform as part of a group or must be ''essential support aliens.'' It is the stature of the group, and not of the individual members, that is determinative. The group must be internationally recognized as outstanding for a sustained period. There is no requirement, however, that other members of the group qualify for P-1 classification, or even be aliens.
To qualify an alien as a P-1 member of an entertainment group, the petition requires:
- Evidence that the group has been established and performing regularly for a period of at least one year;
- A statement from the petitioner listing each member of the group and the exact dates which that member has been employed on a regular basis by the group, and
- Evidence that the group is internationally recognized in the discipline. This may be demonstrated by the submission of evidence of the group's nomination or receipt of significant international awards or prizes for outstanding achievement in its field or by three of the following different types of documentation showing that the group:
- Has performed and will perform as a starring or leading entertainment group in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;
- Has achieved international recognition and acclaim for outstanding achievement in their field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material;
- Has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;
- Has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as ratings, standing in the field, box office receipts, record, cassette, or video sales, and other achievements in the field as reported in trade journals, major newspapers, or other publications;
- Has received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field. Such testimonials must be in a form that clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or
- Has commanded or will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field as evidenced by contracts or other reliable evidence.
P-1 entertainment groups may be admitted for the period of time necessary to complete the performance or event.
P-2 Artists and Entertainers under Reciprocal Exchange Programs
Unlike the P-1 classification, P-2 makes no demand that the artist or entertainer have attained any particular level of proficiency, prominence, renown, or even experience. Moreover, P-2 visas do not require a cultural or ethnic component. The statute authorizes P-2 visas either for individual artists or for groups. To qualify, the alien must be either an artist or be an entertainer with skills comparable to those of the U.S. entertainer participating in the exchange. The terms and conditions of employment for the U.S. and foreign participants should be similar. Thus, the artists or entertainers who will take part in the exchange should be of similar caliber. The proposed length of employment should be equivalent, and a similar number of individuals should be involved on both sides of the exchange.
The petition must include a copy of the formal reciprocal exchange agreement between the United States organization or organizations (including management organizations) sponsoring the aliens, and an organization or organizations in a foreign country that will receive the United States artists or entertainers.
P-3 Culturally Unique Artists and Entertainers
This category accommodates exponents of unique art forms that may be less well known to the public because, by their nature, they do not ordinarily receive the widespread acclaim and recognition enjoyed in the mainstream arts or at commercial venues.
For inclusion in this category, artists or entertainers must be coming to the United States primarily for cultural event(s) to further the understanding or development of that art form. Teachers and coaches, as well as performers, are eligible for P-3 status to encourage them to disseminate their knowledge.
The regulations require affidavits, testimonials, or letters from recognized experts which attest to the artist's authenticity, state the expert's credentials, and show the basis for knowing the artist's skill and recognition. Also required is evidence that all of the performances or presentations will be educational or cultural events. ''Culturally unique'' is defined as ''a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.''
P-3 aliens may be admitted for commercial or noncommercial performances.
Spouses and children of P nonimmigrants are admitted in P-4 status. They may not accept employment without an independent nonimmigrant classification permitting employment or another independent basis for employment authorization.
Q-1 Cultural Exchange Visitors
This category allows nonimmigrants to come to the United States for up to 15 months to participate in international cultural exchange programs. The purpose of the Q-1 exchange program is to provide practical training, employment, and the sharing of the culture of the Q-1 cultural visitor’s country of nationality.
An international cultural exchange program must meet the following requirements:
- The program must be accessible to the U.S. public and must take place in a school, museum, business, or other establishment where the public is exposed to a foreign culture as part of a structured program. Activities that take place in private homes or isolated business settings do not qualify.
- The program must have a cultural component that is an essential and integral part of the cultural visitor's employment or training. Acceptable cultural components include exhibits, courses, or lecture series about the arts, literature, history, language, philosophy, or traditions of the Q-1's country of nationality.
- The program must have a work component that serves as the vehicle to achieve the cultural objective, and the sharing of the Q-1 cultural visitor's culture must result from such employment or training.
The Q-1 cultural visitor must be at least 18 years old and be qualified to perform the service or labor or receive the training stated in the position. The beneficiary must have the ability to communicate effectively about the culture of his or her country of nationality to the U.S. public. Command of the English language is generally necessary, unless the cultural sharing involves a non-verbal component, such as dancing.
The Q-1 employer must petition simultaneously for approval of both its international cultural exchange program and the admission of the particular international cultural exchange visitor. The Q-1 cultural visitor's eligibility for admission will be considered only if the international cultural exchange program is approved.
Spouses and children of cultural visitors are classifiable as B-2 visitors, and may maintain this status for the duration of the cultural visitor's stay.
Q-2 Irish Peace Process Participants
The Irish Peace Process Cultural and Training Program Act of 1998 (IPPCTPA) amended the INA by creating a new Q-2 nonimmigrant visa subcategory. Rep. James Walsh (R-NY) sponsored this legislation. Hence, Q-2 visas are also referred to as Walsh visas. Under this provision residents of Northern Ireland or of the counties of Louth, Monaghan, Cavan, Leitrim, Sligo, or Donegal within the Republic of Ireland who are 35 years old or younger may be issued a visa for up to 36 months. The purpose of this new nonimmigrant subcategory is to provide such noncitizens with practical training, employment, and the experience of coexistence and conflict resolution so that they may return to Ireland or Northern Ireland to bolster that region's economy and support the peace process.
Applicants must be physically resident in either Northern Ireland or in the designated border counties of the Republic of Ireland for at least five preceding application to the program. They must be between the ages of 18 and 35 at the time of initial admission to the United States under the program. In addition, applicants must fall within one of the following categories:
- Unemployed people who either (a) have been unemployed for at least three months or (b) have completed or are currently participating in a program of the Training and Employment Agency of Northern Ireland (T&EA) or of the Training and Employment Authority of Ireland (FAS) or another publicly funded training and employment program. This category also includes people who have recently been made redundant in their employment (i.e., lost their job) or have received a notice of redundancy (termination of employment). They may apply to the program immediately without having to wait three months after becoming employed.
- Currently employed people who (a) have been employed by the same employer for at least 90 days and (b) whose current employer has nominated them to participate in the program for additional training and/or job experience that will benefit both the employee and the employer upon that person's return to his or her prior employment.
- Students pursuing university or other further or higher education certificates in Northern Ireland who need to obtain work experience required for that certification.
There is no petition requirement for Q-2 visitors. However, each candidate must have a written certification from the State Department's program administrator indicating that he or she has been selected for participation in the program before applying for a Q-2 visa. The U.S. Consulate General at Belfast accepts Q-2 visa applications from residents of Northern Ireland. The U.S. Embassy at Dublin accepts applications for Q-2 visas from residents of the border counties in the Republic of Ireland. An applicant for a Q-2 visa may not apply at any other consular post.
The entire program is short term in nature; participants may be initially admitted into the United States only through fiscal year 2002. The Q-2 visa program sunsets on September 30, 2005.
The Immigration and Nationality Act (INA) makes no provision for derivative status for spouses or children of Q-1 cultural visitors. Such dependents must separately qualify for nonimmigrant visas to accompany the Q-1 to the United States. The State Department has indicated that spouses and children of cultural visitors are classifiable as B-2 visitors, and may maintain this status for the duration of the cultural visitor's stay.
R-1 religious worker nonimmigrant status is available to three categories of religious workers:
- ministers of religion (members of the clergy);
- persons working in a professional capacity, either in a religious vocation or occupation (must have a baccalaureate degree or foreign equivalent – not equivalent experience or a combination of education and experience); and
- other religious workers working in a religious occupation or in a religious vocation ("an activity which relates to a traditional religious function," including, but not limited to, "liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters.")
Each category requires that the individual applicant for the two years immediately preceding the date of application for admission:
- have been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; and
- seek to enter the United States for a period not to exceed five years.
No petition is required for the R-1 visa. Application is made either directly to the U.S. consulate abroad or as a change of status to the INS in the United States. An R nonimmigrant may be admitted for an initial period of up to three years, which may be extended for two years for a total of five consecutive years. No extensions may be granted beyond the five-year period.
An alien who has spent five consecutive years in the United States as an R nonimmigrant, may not be readmitted in the R visa classification unless the alien has resided and been physically present outside the United States for the immediate prior year. As with the limitation on stay for H and L nonimmigrants, time spent in the United States will not interrupt the one-year period of residence abroad, but will not be counted toward fulfillment of that requirement.
The spouse and unmarried minor children of an R-1 nonimmigrant are entitled to R-2 classification, provided that the principal alien will be employed and residing primarily in the United States. R-2 nonimmigrants are not authorized to accept employment in the United States without independent eligibility.
The 1993 North American Free Trade Agreement (NAFTA) contains immigration provisions relating to various nonimmigrant visas categories for Canadians and Mexicans. This article will focus on the TN-1 (Trade NAFTA Professional) for Canadians.
The TN-1 visa is the functional equivalent of the H-1B visa for other foreign professionals with a few significant advantages. The TN-1 visa, although issued for only one year at a time, has no definite cap on the number of renewals. No forms are required to apply for the visa. It can be obtained in person at the US-Canadian border. No Labor Condition Application (LCA) is required prior to application. Approval of the application is immediate.
REQUIREMENTS FOR TN-1 STATUS
- The Applicant must be a Canadian citizen.
- The business activity and the Applicant must qualify under Schedule 2 of NAFTA
- The Applicant must possess any required licenses to practice the profession in the state of proposed employment.
- The Applicant must provide documentation of remuneration arrangements with the U.S. employer.
- The U.S. employment must be temporary in nature.
- There must be no strike or lockout from a labor dispute at the place of business of the U.S. employer where the TN-1 employee will be employed.
The TN-1 category is available only to Canadian citizens. Qualified Canadian landed immigrants must apply for the H-1B visa. The Applicant must present a Canadian passport or birth certificate to prove the requirement.
Qualifying under Schedule 2 of NAFTA
Generally, the Applicant must fit within one of the scheduled professions listed in Appendix 1603.D.1 of NAFTA. To see a list of the scheduled professions, click here. Like the H-1B category, the TN-1 category generally requires that the Applicant have a baccalaureate (bachelor’s) degree in the listed profession. Unlike the H-1B category, however, no allowance is made for equivalent work experience unless otherwise noted in the list. The degree must be recognizable as one required for practice in the Applicant’s profession and of the necessary level to qualify the Applicant for the U.S. employment. In some cases, both a bachelor’s degree and a level of experience in the field are required. Evidence of the Applicant’s qualifications can be in the form of university or college transcripts indicating the appropriate degree, diplomas, degrees, licenses and/or membership in professional organizations.
With respect to the employment, the nature of the work to be performed must be professional in nature. The employer may be either a U.S. entity or individual, but cannot be the Applicant himself. The U.S. employer must fully detail the work to be done in a letter. TN-1 status is granted for one employer only. Multiple employers require separate TN-1 applications.
Generally, where a license is required in the U.S. state in which the employment is located, the Applicant must provide proof that he has obtained such a license. In certain professions, members of the profession do not require a license provided that they will work under the supervision of licensed personnel. In the case of professions that customarily permit this arrangement, the INS will approve an unlicensed Applicant. Evidence of licensure would be presentation of a valid professional license from the state of intended employment. In the event that Applicant is unlicensed, the employer must explain in the employment letter why the Applicant does not require a license to be employed in the profession in that particular state.
A letter from the U.S. employer stating the amount of remuneration to be paid to the Applicant should be sufficient.
Temporary Nature of Employment
Unlike, H-1B and L-1 professionals, the TN-1 professional may not have dual intent. Dual intent is a doctrine that allows an Applicant to have the intent to depart the U.S. at the conclusion of his non-immigrant visa and, at the same time, the intent to seek permanent residency in the U.S. based on that visa. At the time that the TN-1 application is made, the Applicant must have the intent to depart the U.S. at the conclusion of his employment. This does not, however, preclude the Applicant’s later applying for permanent residency based upon the TN-1 employment.