- United States visas
United States Visas are used by millions of foreign nationals visiting the
United Statesevery year. Other foreign nationals come to live in the U.S. permanently.
A foreign national wishing to enter the U.S. must obtain a visa:
*1) If he or she is not a citizen of one of the twenty-seven
Visa Waiver Programcountries
*2) If he or she is not a citizen of
*3) Or if he or she has a statutory ineligibility for visa-free travel (e.g. criminal past, etc.).
There are separate requirements for Mexican citizens [ [http://www.travel.state.gov/visa/temp/without/without_1260.html#mexico Border Countries: Canada, Mexico and Bermuda ] ] .
There are two basic types of U.S. visas:
* Nonimmigrant visa - for temporary visits such as for
tourism, business, work or studying.
* Immigrant visa - for people wanting to be permanent residents in the United States without any time limitation.
Contrary to a popular misconception, a U.S. visa does not authorize the alien's entry to the United States, nor does it authorize the alien's stay in the U.S. in a particular status. A U.S. visa only serves as a preliminary permission given to the alien to travel to the United States and to seek admission to the United States at some port of entry. [ [http://www.unitedstatesvisas.gov/whatis/index.html What is a Visa?] U.S. State Department] The final admission to the United States in a particular status and for a particular period of time is made at the port of entry by a U.S. immigration officer. For aliens entering the U.S. in a nonimmigrant visa status these details are recorded by the immigration officer on the alien's
Form I-94(Form I-94W for citizens of the Visa Waiver Programcountries entering the U.S. for short visits), which serves as the official document authorizing the alien's stay in the United States in a particular non-immigrant visa status and for a particular period of time. [ [http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/arrival_departure_record.xml FAQs on the Arrival-Departure Record (I-94 Form) & Crewman Landing Permit (I-95 Form).] U.S. Customs and Border Protection. Accessed May 1, 2008]
Applicants for visitor visas must show that they qualify under provisions of the
Immigration and Nationality Act. The presumption in the law is that every visitor visa applicant (except certain employment-related applicants, who are exempt) is an intending immigrant. Therefore, applicants for visitor visas must overcome this presumption by demonstrating that:
* The purpose of their trip is to enter the U.S. for business, pleasure, or medical treatment;
* They plan to remain for a specific, limited period; and
* They have a residence outside the U.S. as well as other binding ties which will ensure their return abroad at the end of the visit.
All tourist visa applicants must pay a 131
U.S. dollar(increased $131 from $100 by January 1, 2008) interview fee to a US Consulate in order to be interviewed by a Consular Officer who will determine if the applicant is qualified to receive a visa to travel to the U.S (additionally, the officer may also ask the United States Department of Statefor a Security Advisory Opinion, which can take two weeks to several weeks to resolve). If the applicant is rejected, the $131 fee is not refunded. Amongst the items included in the qualification decision are financial independence, adequate employment, material assets and a lack of a criminal record in the applicant's native country.
The immigration visa process is even more stringent and costly. After all processing fees have been paid, most immigration visa applicants pay well over 1,000 U.S. dollars to become permanent residents in the United States and are forced to wait several years before actually immigrating to the U.S.
Classes of Visas
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." Visa applicants sometimes receive either a B-1 (temporary visitor for business) or a B-2 (temporary visitor for pleasure) visa, if their reason for travel is specific enough that the consular officer does not feel they qualify for B-1/B-2 status.
H-1Bclassification is for professional-level jobs that require a minimum of a bachelor's degree in a specific academic field. In addition, the employee must have the degree or the equivalence of such a degree through education and experience. Before the H-1B petition can be filed with USCIS the employer must file a "Labor Condition Application" (LCA) with the Department of Labor demonstrating that it is paying the required wage for this position in the geographic region where the job is located. The required wage for the position is the higher of the "actual wage" that is paid to other employees in this position or the "prevailing wage" which can be determined using nearly any source, including the employer's own wage survey.
When the employer submits the LCA, the law specifically limits the approval process so that LCAs may only be rejected if they be "incomplete or obviously inaccurate" (8 U.S.C. 1182 (n)). An employer may claim anything is the prevailing wage and the LCA is certain to be approved. In F.Y. 2005 <<1% of LCAs were rejected. In cases where the prevailing wage source is not valid (e.g a national survey rather than a local one or a survey of entry level wages rather than one for the occupation and location) or where the prevailing wage is misstated (e.g. fabricated or using the 25th percentile wage) the LCA routinely will be approved.
Contrary to popular myth, there is no requirement whatsoever that employers must prove they could not find U.S. workers before hiring H-1B workers. In the case of "H-1B-dependent employers" (usually those with more than 15% of their workers on H-1B visas), the law requires these employer to recruit U.S. workers in "good faith" (8 U.S.C. 1182(n) (1)(G)). However, there is no effective enforcement mechanism in place.
As a general rule, a person who is in one nonimmigrant status may not change status or change employers in that status until he or she applies with USCIS for such a change, and such change is granted. However, a provision called "H-1B portability" permits certain individuals already in the United States in H-1B status to commence employment for a new employer once a new employer's H-1B petition is filed with USCIS.
In order to obtain an H-1B visa, the employer must show that it will pay the higher of the prevailing local wage or the wage it pays other U.S. citizens who have similar education and experience. The employer is not required to prove there are no American workers available to perform the work. However, some economists saw H-1B expansion as an assault on the American middle class that benefited the wealthy and made it impossible to maintain traditional American standards of living, or provide incentives to improve productivity as rapidly as nations like Japan with more restrictive immigration policies.
The companies who hired workers on H-1B visas often argue that the U.S. lacks enough skilled American workers to do the specific work needed by the company. Many economists argue that hiring these foreign workers provides more benefits to the U.S., and otherwise the recruiting companies would simply offshore the entire operation. It was claimed this would likely prove worse for the U.S. economy as a whole, because in the first scenario foreign national workers living in the United States would at least spend money in the United States, while the multi-national corporations that would purportedly export the jobs to overseas locations would probably not pass down as much of the savings to the U.S. consumer who purchased for them.
L-1 Intracompany Transferee
The L-1 classification is for international transferees who have worked for a related organization abroad for at least one year in the past three years that will be coming to the United States to work in an executive or managerial (L-1A) or specialized knowledge capacity (L-1B).
To qualify as an international executive, the employee must meet the following requirements:
*Direct the management of the organization or a major component or function;
*Establish the goals and policies of the organization, component, or function;
*Exercise wide latitude in discretionary decision-making; and
*Receive only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
To qualify as an international manager, the employee must meet the following requirements:
*Manage the organization or department, subdivision, function or component of the organization;
*Supervise and control the work of other supervisory, professional or managerial employees, or manage an essential function within the organization, or a department or subdivision of the organization;
*The authority to hire and fire, or recommend hire/fire and other personnel actions (such as promotion and leave authorization), or if no employees are directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
**Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
To qualify as a specialized knowledge transferee, the employee must meet the following requirements:
*Possess knowledge of the company product and its application in international markets; or
*An advanced level of knowledge of processes and procedures of the company.
An employee has specialized knowledge if the knowledge is different from that generally found in the particular industry. Possible characteristics of an employee who possesses specialized knowledge including knowledge that is valuable to the employers competitiveness in the market place; knowledge of foreign operating conditions as a result of special knowledge not generally found in the industry; has worked abroad in a capacity involving significant assignments which have enhanced the employer's productivity, competitiveness, image or financial position; possesses knowledge which normally can be gained only through prior experience with that employer; or possesses knowledge of a product or process which cannot be easily transferred or taught to another individual.
TN Visa (TN-1) for Canadians/Mexicans to work in the United States
General Information about TN StatusSince the effective date of
January 1, 1994, (NAFTA) facilitates travel to and employment in the United States (U.S.) of certain Canadian and Mexican workers. NAFTA created TN classification for eligible Canadian and Mexican professional workers and affected terms of Canadians' admissions to the U.S. under other classifications.A TN position must require services of a NAFTA professional whose profession is noted in Appendix 1603.D.1(see attached Appendix 1603.D.1); the TN employee must possess the credentials required as well as proof of qualifying citizenship. TN status allows unlimited multiple entries to the U.S. for the period of service required by the U.S. employer (includes foreign employers), up to a maximum of one year, extendible indefinitely as long as the temporary purpose of the employment continues.
There is no annual limit on Canadians granted TN status.
Self-Employment in the U.S. Not PermittedTN: Members of Appendix 1603.D.1 professions who are self-employed outside the U.S. may pursue business relationships from outside the U.S. (e.g. contracts for services) with U.S.-based companies and obtain TN status to engage in these prearranged activities in the U.S. However, under TN classification an alien is not permitted to come to the United States to engage in self-employment in the United States, nor to render services to a corporation or other entity in which he/she is a controlling owner or shareholder.Other NAFTA Admissions CategoriesNationals Canada and Mexico may also seek admission as B-1 (business visitor), E-1 (treaty trader), E-2 (treaty investor), or L-1 (intra-company transferee) nonimmigrants under NAFTA. This bulletin does not address those alternatives.
TN Processing and Admissions ProcedureCanadians may apply for TN-1 classification directly at a U.S. Class "A" port-of-entry, at a U.S. airport handling international traffic, or at a U.S. pre-flight/pre-clearance station in Canada1. Documentation must include:
*Proof of Canadian citizenship,
*$50 filing fee,
*Proof of required Appendix 1603.D credentials; and
*Letter from U.S. employer (or a sending employer in Canada) describing nature and duration of professional employment and salary/wages in the U.S2.
Canadian citizens are visa exempt and do not need consular visas to travel or apply for admission to the U.S. TN-1 applicants at land ports-of-entry must also pay a modest I-94 fee.
TN-2 non-immigrants from Mexico must be approved beneficiaries of I-129 petitions filed by prospective US employers and approved by the Department of Homeland Security, U.S. Citizenship and Immigration Services' Nebraska Service Center. Documentation must include:
*Proof of Mexican citizenship,
*Form ETA-90353 Labor Condition Attestation (LCA) certified by the US Labor Department,
*$130 filing fee,
*Proof of the purpose for entry, and proof of participation in a permitted NAFTA professional activity.
Mexicans applying for admission to the US under TN-2 classification must obtain visas at US consulates. Note that the above requirements will sunset on
December 31, 2003. On and after January 1, 2004, Mexican TNs will file the necessary paperwork with a Department of State Consulate in Mexico in order to receive a TN visa. Visit the Department of State web site for more information on the procedures Mexican citizens must follow in order to obtain a TN visa.
Family MembersSpouses and unmarried children under 21 of Canadian and Mexican professionals obtain TD status. They can be included on the application of the TN principal (no separate filing fees) and admitted for the same duration of stay. TD nonimmigrants may study in the US under this classification, but are not authorized for employment. Canadian dependents' eligibility may be adjudicated at a US port-of-entry. Although Mexican family members are automatically included in TN petitions filed at the Nebraska Service Center, they must file separate application for TD visas at US consulates.Note: Dependents are not required to be Canadian or Mexican citizens.
K Visas for immediate relatives
Even though these visas are issued to people who have the intent to immigrate permanently to the United States, they are still technically classified as nonimmigrant visas (temporary). U.S.
citizensmay petition the USCIS for a K temporary visa for fiancé(e)s, spouses and unmarried dependent children of said fiancé(e)s and spouses. In the case of fiancé(e)s, the K-1 visawill allow them to stay in the U.S. for 90 days to marry the petitioning citizen and apply for adjustment of status to legal permanent resident. If the marriage is not concluded within that time, the fiancé(e) will be subjected to removal proceedings. Compliance with the International Marriage Broker Regulation Act (IMBRA) IMBRA limits the number of K1 fiancee visa petitions a sponsor can file or have approved without seeking a waiver of the limits. Additionally, the child of a fiancee may receive a derivative K-2 visa from his/her parent’s fiancee petition. The child may travel with your fiancee or travel later within one year from the date of issuance of the K-1 visa to their parent. A separate petition is not required if the children accompany or follow your fiancee within one year from the date of issuance of her K1 visa. If it is longer than one year from the date of visa issuance, a separate visa petition is required. In the case of spouses, the K-3 visa is valid for two years and may be extended indefinitely as long as the marriage on which it is based is not dissolved. The holders of K-3 and K-4 status are eligible for work authorization and may leave and re-enter the United States as long as their visas are still valid.
Foreign same-sex partners of United States citizens are currently not recognized by the
INSand accordingly cannot be sponsored for a K Visa or for Permanent Resident status. Many families based on a same-sex relationship are accordingly forced to live outside the U.S., if a different visa type cannot be procured. Many foreign partners reside in the U.S. as illegal aliens. The Uniting American Families Act, if passed, would create a new family category, "Permanent Partner", allowing foreign partners recognition by the INS. The term "Permanent Partner" was established to avoid sensitivities about same-sex marriageand civil unions.
However, same-sex partners of non-U.S. citizens can qualify for temporary visas to the U.S. on the basis of their relationship according to the U.S. State Department, which effectively gives U.S. citizens fewer rights than non-citizens seeking to live with their same-sex partners in the U.S. [ [http://travel.state.gov/visa/laws/telegrams/telegrams_1414.html Cohabiting Partners] ]
V Visas and LIFE act for spouses of Legal Permanent Residents (Green Card holders)
Adjustment of status is the final step of what is commonly called the green card or (LPR) process, i.e. that of becoming a legal permanent resident (LPR). It requires that the foreign national in question file an I-485 Application for Adjustment of Status, most often based on a preexisting and approved or approvable I-140 Immigrant Petition for Alien Worker or I-130 Petition for Alien Relative. Due to comprehensive immigration reform in 2002, I-485 applications and I-130 or I-140 petitions may be filed concurrently given the immediate availability of an immigrant visa number. The application must be filed with an I-693 Medical Examination of Alien issued by a licensed Civil Surgeon and a G-325A Biographic Information form, which documents provide a complete medical and immunological history as well as a record of the foreign national's places of employment and residence for the last five years. The USCIS then sets a date for the foreign national to have their fingerprints, picture and signature recorded for their FBI background check and entry in the USCIS database. A usually perfunctory interview with a USCIS officer is required in the vast majority of cases.
A pending adjustment of status application entitles the applicant to work and travel authorization in the forms of an Employment Authorization Document (EAD) card and Advance Parole documents that must be renewed on a yearly basis. The application may be considered abandoned if the applicant does not attend a biometrics appointment or interview. Applications may also be denied for any of the following reasons:
# The underlying immigrant petition is denied or withdrawn
# The applicant is found to have entered or resided in the United States illegally (although this may be waived for one who originally entered with a valid visa and is an immediate relative of the US citizen-petitioner)
# The applicant is judged as undesirable on the grounds of prior criminal convictions, affiliation with unsuitable political parties or organizations (e.g. former members of the
Communist Party), poor character or have debilitating health problems, as well as other grounds.
If an adjustment application is approved, a permanent residency card (green card) valid for ten years is issued to the applicant. After five years LPRs are eligible to apply for
naturalization, except that an LPR who obtained their green card through marriage may apply for naturalization after only three years if he or she is still living with the same spouse who originally filed the petition for the LPR.
Legal Permanent Residents (LPR)s, have some restrictions on their rights. If they marry a foreign born spouse, the green card holder may have to remain separated for years from his spouse or family while the paper work needed to get immigration authorization grinds through the system. The option of returning to their original home to immediately effect a reunion with their spouse and family is often not attractive.
INA 245(i) was initially enacted by Congress in 1994, with an expiration of November 1997. INA 245(i) allowed otherwise ineligible 'adjustment of status' applicants to apply for and receive green cards in the United States by paying a $1,000 fine.
In late 1997 amid much controversy, the law was extended to allow Immigrant Visa Petitions or Labor Certifications filed before
January 14, 1998to be 'grandfathered', essentially extending the time limit for 'adjustment of status.'
With INA 245(i) set to expire on
January 14, 1998, a mechanism was implemented to unite families --effectively expediting entry of spouses and their children into the United States-- by creating a nonimmigrant classification for families of LPRs through the Legal Immigration Family Equity Act of 2000 (the LIFE Act), signed into law by President Clinton on December 21, 2000as Public Law 106-553.
The LIFE act extended, until
April 30, 2001the "grandfathering deadline" of the previous amendment to Section 245(i) of the Immigration & Nationality Act (INA), giving applicants who failed to meet the previous 1997 INA deadline, a second extension in which to file an Immigrant Visa Petition or Labor Certification.
This extension to applicants for Immigrant Visa Petitions or Labor Certifications who filed prior to
April 20, 2001, who were physically present in the United States, allowed them to be 'grandfathered', as was permitted with the previous extended deadline of INS 245(i), and gives applicants the opportunity to transfer their eligibility later.
Section 1102 of President Clinton's LIFE act of 2000 amended section 101(a)(15) of the Act (8 U.S.C. 1101(a) (15)) adding a new nonimmigrant classification, paragraph ('V' Visa), for certain spouses and children of lawful permanent residents (LPRs), who have waited at least 3 years for the availability of an immigrant visa number in the family-based second (F2A) preference category in accordance with the State Department’s monthly Visa Bulletin.
Section 1102 also added section 214 (o) to the Act (8 U.S.C. 1184(o)) in order to provide the terms and conditions of V nonimmigrant status and employment authorization, and makes conforming amendments to sections 214 (b) and 214 (h) of the Act (8 U.S.C. 1184 (b) and 1184 (h)) to include reference to the V non immigrant classification.
Prior to the passage of the LIFE Act of 2000, aliens who were married to a U.S. Citizen and living abroad had to obtain an immigrant visa 'outside of the United States' prior to admission.
Following President Clinton's signing and enactment of the LIFE act of 2000, spouses of U.S. Citizens and their children who were beneficiaries of pending or approved visa petitions could be admitted initially as nonimmigrants and adjust to immigrant status later while in the United States.
This amnesty allowed aliens already present in the U.S. to obtain 'V' nonimmigrant status while remaining in the United States. In addition spouses and unmarried children under 21 years old could apply for visa abroad and for admission to the United States as a 'V' nonimmigrant.
The 'K' nonimmigrant classification in the LIFE Act of 2000 was limited to a fiancee or fiancee of a U.S. citizen seeking to enter the U.S. to complete a marriage within 90 days of entry, and the fiance/fiancee's child.
However, changes were made to the LIFE Act of 2000 and effective
August 14, 2001at Subsection 1103(a), which amended section 101(a)(15)(K) of the Act, and implemented a new "K" nonimmigrant classification.
Subsection 1103(a) redesignates the "K" nonimmigrant classification as section 101(a)(15)(K)(i) of the Act, adds a classification for the spouse of a U.S. Citizen at section 101(a)(15)(K)(ii), and classifies the children of aliens at section 101(a)(15)(K)(iii) of the Act.
The new section 101(a)(15)(K)(ii) of the Act has three requirements for an alien to obtain this nonimmigrant classification.
# The alien must already be married to a U.S. Citizen who has filed a relative visa petition on his or her behalf with the Service for purposes of an immigrant visa.
# That same U.S. citizen spouse must be petitioning on that alien's behalf to obtain a nonimmgrant visa.
# The alien must be seeking to enter the United States to wait the "availability of an immigrant visa.
More information on the LIFE Act of 2000, the
August 14, 2001and other amendments can be perused online at the U.S. Citizenship and Immigration Services (USCIS) website, or by contacting a local Services field office.
Legal Permanent Residents (LPRs), more commonly known as Green Card holders, are foreigners who do not have U.S. citizenship but are permitted to live and work here. Those who have opted to get married to non U.S. citizens are unable to bring their spouses and families directly to the U.S.. The foreign spouse of a U.S. Green Card holder must wait for approval of an 'immigrant visa' from the State Department before legally entering the U.S.. Due to a backlog in processing, such visas can sometimes take upwards of five years to be approved. In the interim, the foreign born spouse and family cannot enter the U.S. on any other visas, or as visitors. LPRs always have the option to return to their country of citizenship but lacking U.S. citizenship and if they want to stay in the U.S. and stay married to their "foreign" family they are in a semi-unique situation:
* Temporary visitors and non-immigrants coming to the U.S. on temporary visas for work, business or studies (including on H1, L1, B, and F1 visas) can sponsor their dependent spouses to travel along with them and return with them when they leave.
* American Citizens have more options and can sponsor their spouses to come to the U.S. in non-immigrant status and then convert to an immigrant status under the Legal Immigration and Family Equity Act (the "LIFE Act")
V visapage has more details on the V visa as enacted by the LIFE Act.
elect List of the Various Types of Visas
Visa Waiver Program
Security Advisory Opinion
European Union visa lists
* [http://www.dhs.gov/ximgtn/statistics/ U.S. Immigration Statistics]
* [http://travel.state.gov/visa/reciprocity/index.htm Visa Reciprocity and Country Documents Finder of the United States]
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