Table of Contents

Non Immigrant Visa

The nonimmigrant visa classification covers a broad range of visas that people may use to enter the United States for work, pleasure, or study.

As opposed to immigrants coming to live permanently in the United States, nonimmigrants are admitted for a specific temporary period of time and for a specific purpose.

It is important to understand the specific terms and conditions of each nonimmigrant visa category, as any violations thereof may affect the non-immigrant’s ability to be admitted into or maintain lawful status in the United States, apply for change of status, or adjust to lawful permanent resident status.

2 Ways of Applying for Non Immigrant Visa

Consular Processing

If the applicant is outside of the United States, he can apply at a U.S. consulate abroad. Depending on the type of nonimmigrant visa, a previously approved nonimmigrant petition filed with the USCIS may be required

Application through a U.S. embassy or consulate abroad is called “consular processing

Extension of Stay/Change of Status

If the individual is already in the United States and maintaining a valid nonimmigrant status, he or she may apply to USCIS for extension or change of status without need of departing from the United States during the pendency and beyond the expiration of his or her current status up until the extension or change of status application is adjudicated

An application made while in the United States is called “extension of stay” or “change of status,” as the case may be.

Diplomatic (A) Visas

  • Diplomatic (A) visas are issued to diplomats and other government officials who are traveling to the United States on behalf of that government to engage solely in official activities for that government. Heads of state or government qualify for A visa regardless of the purpose of their travel. For all others, qualification for A visa will be determined by the specific purpose of their travel. Only officials of the national government travelling on behalf of the national government can qualify for A visa classification; local officials do not qualify.

  • UNDER SECTION 101(A)(15)(A) OF THE INA, THE FOLLOWING MAY QUALIFY FOR A CLASSIFICATION:
  • A-1: Ambassadors, public ministers, or career diplomatic or consular officers who have been accredited by a foreign government recognized de jure by the United States and who are accepted by the President or by the Secretary of State, and the members of their immediate families;
  • A-2: Upon a basis of reciprocity, other officials and employees who have been accredited by a foreign government recognized de jure by the United States, who are accepted by the Secretary of State, and the members of their immediate families; and
  • A-3: Upon a basis of reciprocity, attendants, servants, personal employees, and members of their immediate families, of the officials and employees of A-1 and A-2 visa holders.

B1/B2 -Temporary Business Visitor Visa

  • B1- Visitor Visa is a non-immigrant visa for foreign individuals seeking to enter the U.S. for business of legitimate nature and for a limited period of time.  

  • Individuals who intend to participate in business activities in the US such as consulting with business associates, negotiating a contract, settling an estate, participating in short term training or traveling for a scientific, education or professional business convention or conference may apply for B-1 Visa.  

  • In addition, Athletes, amateur and professional (to compete for prize money only), business visitors, domestic employees or nanny accompanying a foreign national employer may apply for B-1 visa 

The main categories of temporary business travel that may qualify for B-1 classification:

  • Professional athletes seeking to enter the United States as members of a foreign based team in order to compete with another sports team, subject to certain requirements of immigration law.
  • Investors seeking to enter the United States to survey potential sites for a business and/or to lease premises in the United States, but not to remain in the United States to manage business.
  • Attendees of conferences, meetings, trade shows or business events who will not receive salary or income from a U.S. based company/entity.
  • Exposition or trade show employees of foreign exhibitors at international fairs (except government representatives) who will not receive salary or income from a U.S. based company/entity.
  • Lecturers or speakers who will not receive salary or income from a U.S. based company/entity, other than expenses incidental to the visit. Payment of honorarium may be permitted, provided: (1) activities do not last longer than 9 days at any single institution or organization; (2) payment is offered by an institution of higher education, a related or affiliated nonprofit entity of an institution of higher education, a nonprofit research organization or a Governmental research organization; (3) honorarium is for services conducted for the benefit of the institution or entity; (4) the individual will not have accepted such payment or expenses from more than 5 institutions or organizations over the last 6 months.
  • Independent researcher who will not receive salary or income from a U.S. based source or the research will not benefit a U.S. institution.
  • Sales individuals who will undertake exhibitions, take orders, or negotiate and sign contracts for products produced outside the United States.
  • Service Engineer who will install, service, or repair commercial or industrial equipment or machinery sold by a non-U.S. company to a U.S. buyer, when specifically required by the purchase contract. Installation cannot include construction work, except for supervision or training of U.S. workers to perform construction.
  • Trainees who will participate in a training program that is not designed primarily to provide employment and who will not receive payment or income from a U.S. based company/entity, other than an expense allowance or expense reimbursement related to traveler’s stay.
  • Personal or domestic employees of U.S. citizens on temporary assignment in the United States or foreign nationals in nonimmigrant status in the United States, subject to certain requirements of the immigration law.
B-1 visitors may be admitted for not more than 1 year and may be granted extensions of temporary stay in increments of not more than 6 months each, subject to certain exceptions. While in the United States, B-1 visitors may also be eligible to change status to another nonimmigrant category.

B2- Visa Tourism

B-2 visitor visas are issued for pleasure, tourism, and medical treatment purposes. B-2 is the appropriate visitor visa category if the purpose of the planned travel is recreational in nature, such as sightseeing, spending holidays with relatives in the United States, vacation or rest, attending social events, or participation by amateurs in musical, sports and similar events or contest without remuneration.  

B-2 visitors will be admitted for a minimum period of 6 months, regardless of whether less time is requested, provided that any required passport is valid for at least 6 months prior to the planned departure from the United States

B-2 visitors may be admitted for not more than 1 year and may be granted extensions of temporary stay in increments of not more than 6 months each, subject to certain exceptions

Visa Waiver Program

Find out if you are a citizen or national of a Visa Waiver Program (VWP) Designated Country

Transit Visa (C)

E visas are issued to individuals seeking to enter the United States, based on a qualifying Treaty of Friendship, Commerce, or Navigation or its equivalent existing between the United States and the country of the applicant’s nationality, for the following purposes:  

In general, a valid transit visa (C) is required when a citizen of a foreign country travels in immediate and continuous transit through the United States in route to a foreign destination, such as in the following cases:

(1) If the traveler is a passenger embarking at a foreign port on a cruise ship or other vessel which is proceeding to a foreign destination other than the United States, and during the course of the journey, the vessel makes port in the United States with no intention of landing in the United States.

(2) If the traveler is a crewperson traveling to the United States as a passenger to join a ship or aircraft.

(3) If the foreign traveler is proceeding in immediate and continuous transit through the United States to or from the United Nations Headquarters District, under provisions of the Headquarters agreement with the United Nations, would require a diplomatic transit (C-2) visa and have certain restrictions on travel within the United States.

To qualify for C visa, the applicant must be able to demonstrate that he or she:

  • (1) intends to pass in immediate and continuous transit through the U.S.;
  • (2) possesses a common carrier ticket or other evidence of transportation arrangements to his or her destination;
  • (3) has sufficient funds to carry out the purpose of the transit journey; and
  • (4) has permission to enter another country upon departure from the United States. The period of admission of a person under this visa category shall not exceed 29 days. A person cannot apply for extension of stay, change of status, or adjustment of status in the United States while on C visa.

Crew Member Visa (D)

Crewmember visas (D) are issued to individuals who provide services that are required for normal operation on board a sea vessel or aircraft. The individual does not have to be employed at the time of the application, as long as he or she is employed on the sea vessel or aircraft on which he or she arrives in the United States. D visa may also be obtained by a trainee on board a training vessel.

The period of admission of a person under this visa category shall not exceed 29 days. A person cannot apply for extension of stay, change of status, or adjustment of status in the United States while on D visa.

 

Treaty Trade (E-1) and Treaty Investor (E-2) Visa

E visas are issued to individuals seeking to enter the United States, based on a qualifying Treaty of Friendship, Commerce, or Navigation or its equivalent existing between the United States and the country of the applicant’s nationality, for the following purposes:  

  • (1) Solely to carry on trade of a substantial nature, which is international in scope, either on the applicant’s own behalf or as an employee of a foreign person or organization engaged in trade principally between the United States and the country of which the applicant is a national (E-1);
  • (2) Solely to develop and direct the operations of a bona fide enterprise in which the applicant has invested or is actively in the process of investing a substantial amount of capital (E-2).
Key employees of treaty traders and treaty investors whose work requires executive, supervisory or essential skills may also be accorded E-1 or E-2 classification provided they meet the requirements under immigration law. Spouse and unmarried children under 21 years old may also accompany or follow-to-join them under the same classification as the principal nonimmigrant. E-1 or E-2 nonimmigrants may be admitted for an initial period of 2 years and may apply for extension of stay in 2-year increments.

Treaty Trader (E-1) Visa

Trade is defined under 8 C.F.R. §214.2(e)(9) as “the existing international exchange of items of trade for consideration between the United States and the treaty country.” To be substantial, it must be of an amount sufficient to ensure a continuous flow of international trade items between the two countries and contemplates numerous transactions over time. For this purpose, items of trade include but are not limited to goods, services, international banking, insurance monies, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, and some news-gathering activities. Domestic trade is not counted in considering substantial trade.

Trade is considered to be principally between the United States and the treaty country when over 50% of the volume of international trade of the treaty trader is conducted between the two countries. In the calculation of the required over 50% volume, domestic trade is excluded.

Treaty Investor (E-2) Visa

TREATY INVESTOR (E-2)

Investment is defined under 8 C.F.R. §214.2(e)(12) as “the treaty investor’s placing of capital, including funds and others assets…, at risk in the commercial sense with the objective of generating profit.” For the capital investment to be eligible for E-2 purposes, it must not have been obtained, directly or indirectly, through criminal activity.

The regulations further require that:

  • E-2 visa is commonly confused with EB-5 Immigrant Investor’s Visa, giving rise to a misconception that E-2 visa requires a minimum amount of investment. There is no fixed, minimum amount of investment to qualify for E-2 classification.
  • The capital must be subject to partial or total loss if investment fortunes reverse.
  • The investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets.
  • The capital must be irrevocably committed to the enterprise.
E-2 visa is commonly confused with EB-5 Immigrant Investor’s Visa, giving rise to a misconception that E-2 visa requires a minimum amount of investment. There is no fixed, minimum amount of investment to qualify for E-2 classification.

Australian Specialty Occupation Professionals (E-3) Visa

The E-3 classification applies only to nationals of Australia who are coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States.

Requirements to Qualify

  • Must be a national of Australia;
  • Has a legitimate offer of employment in the United States;
  • Possesses the necessary academic or other qualifying credentials; and
  • Will fill a position that qualifies as a specialty occupation.

Student Visa

A student visa is required if the alien is traveling to the US to pursue a course of study of 18 hours or more a week, or to attend seminars, conferences, or a program of study for academic credit. There are two categories of student visa. The F visa is the appropriate visa for academic students attending a university, college, high school, private elementary school, seminary, conservatory or other academic institutions, including a language training program. For students attending vocational or other recognized nonacademic institutions, other than a language training program, the M visa is the appropriate category.

The first step to apply for a student visa is to be accepted for enrollment in an educational institution accredited with the Student and Exchange Visitor Program (SEVP) of the Department of Homeland Security (DHS). If the student applicant is accepted in the program applied to, the school will issue a SEVIS Form I-20 which the student applicant will need to present when applying for a student visa. The student applicant must pay the SEVIS I-901 fee before applying for a student visa.

Additionally, the student applicant must also meet the following requirements:

  • He must have a residence abroad which he has no immediate intention of abandoning;
  • He must intend to depart from the United States upon completion of the course of study; and
  • He must possess sufficient funds to pursue the proposed course of study.

F-1 Visa

Individuals on student visa may not engage in employment, unless authorized under any of the following circumstances: (1) For F-1 students:

  • On-Campus employment may begin as soon as the student is admitted in F-1 student, which includes work performed on school premises or at an off-campus location that is educationally affiliated with school. F-1s can only work 20 hours per week while school is in session and full-time when school is not in session. On-campus employment is permitted only when it will not displace U.S. workers. Employment Authorization Document (EAD) from the USCIS is not required.
  • Off-campus employment after first academic year may only be permitted due to severe economic hardship caused by unforeseen circumstances beyond student’s control, or to take up internship with a recognized internal organization.
  • Practical Training, including Curricular Practical Training (CPT) and Optional Practical Training (OPT), may be available to a full-time student of at least one academic year to take up employment related to the course of study and for the purpose of practical training (excluding English language training). EAD is required for both CPT and OPT. Unlike in the case of OPT, a job offer is required to apply for CPT. CPT and pre-completion OPT may be part-time (no more than 20 hours per week) or full-time (more than 20 hours per week). A student working part-time for two years or full-time for one year is not eligible for post-completion OPT.

M-1 Visa

M-1 students may not accept employment, except practical training, which may only be obtained after completion of study.

Employees of Designated International Organizations (G1-G5) AND NATO

International Organization (G) and NATO visas are issued to diplomats and other government officials for travel to the United States. With the exception of a Head of State or Government who qualifies for an A visa regardless of the purpose of his or her visit to the U.S., the type of visa required by a diplomat or other government official depends upon their purpose of travel to the United States.

International Organizations

Applicants must meet specific requirements to qualify for an Employee of International Organization (G) visa under immigration law. The consular officer will determine whether the applicant qualifies for the visa. The purpose of the intended travel to the United States must be pursuant to official duties.

 

The following are the different sub-categories of G visa:

  • G-1: Permanent mission members of a recognized government to a designated international organization are eligible for a G-1 visa.
  • G-2: Representatives of a recognized government traveling to the United States temporarily to attend meetings of a designated international organization are eligible for G-2 visas.
  • G-3: Representatives of non-recognized or non-member governments are eligible for G-3 visas.
  • G-4: Individuals who are proceeding to the United States to take up an appointment at a designated international organization, including the United Nations are eligible for G-4 visas.

NATO

Applicants must meet specific requirements to qualify for an Employee of NATO (NATO) visa under immigration law. The consular officer will determine whether the applicant qualifies for the visa. An applicant is classified under the symbol NATO-1 through NATO-6 if they are seeking admission to the U.S. under the applicable provision of the Agreement on the Status of the North Atlantic Treaty Organization or the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty. This includes national representatives, international staff and immediate family members of an individual classified NATO-1 through NATO-6.

Specialty Occupation (H-1B) Visa

The H-1B nonimmigrant visa allows foreign workers to enter the United States and work in a variety of fields ranging from architecture and engineering to health and medicine. The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration.

General Requirements

The H-1B visa requires a U.S. sponsor, who is willing to hire the applicant temporarily, pay the applicant the applicable prevailing wage for the offered position, and file a petition with the U.S. Citizenship & Immigration Services (USCIS) to classify the applicant as an H-1B nonimmigrant worker. The petition process begins with the sponsoring employer filing a Labor Condition Application (LCA) with the Department of Labor after obtaining a prevailing wage for the position. Upon obtaining an approved LCA the employer files the petition with USCIS. The petition must be filed with documentation that shows the job is a professional or specialty occupation and that the H-1B applicant is qualified for the position.

Requirements For a Job Offer to Quality As a Specialty Occupation

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or

Requirements For the H-1B applicant to qualify to accept a job offer in a specialty occupation

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty
The H1B petition is initially granted for up to three years. A maximum of six years is generally possible, with extensions in increments of up to three years at a time. Upon reaching the maximum stay of six years in H-1B status, the individual must depart the United States for at least one year before he may be granted H-1B status again.

Temporary Agricultural Workers (H-2A)

The H-2A program allows U.S. agricultural workers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature. Employment is of seasonal nature where it is tied to a certain time of year by an event or pattern, and requires labor levels far above the necessary for ongoing operations. Employment is of a temporary nature where the employer’s need for the temporary worker will last generally no longer than one year.

Requirements to qualify for this classification

  • The job offered must be of a temporary or seasonal nature;
  • The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work;
  • The employer must show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
  • Generally, a single, valid temporary labor certification from the U.S. Department of Labor must be submitted with the H-2A petition.

A petition filed by the U.S. employer with the USCIS is required. Prior to filing the petition, the employer must first apply for a Temporary Labor Certification from the U.S. Department of Labor (DOL). The employer will need to submit a copy of the approved Temporary Labor Certification in its petition to USCIS requesting for H-2A workers.

Not all countries are eligible to participate in the H-2A program. The list of H-2A eligible countries is published in the Federal Register by the Department of Homeland Security on a rolling basis. Designation of countries as H-2A eligible is valid for one year from publication. A national from a country not on the list may only be the beneficiary of an approved H-2A petition if the DHS Secretary determines that it is in the interest of the United States for that alien to be the beneficiary of such a petition.

Generally, USCIS may grant H-2A classification for the period of time authorized on the temporary labor certification (usually no longer than one year). Extensions may be granted for qualifying employment in increments of up to one year, subject to the maximum period of three years. After three years, the individual must depart and remain outside the United States for an uninterrupted period of three months before seeking readmission as an H-2A worker.

Temporary Non Agricultural Workers (H-2B)

The H-2B nonagricultural temporary worker program allows U.S employers to bring foreign workers to the United States to fill temporary nonagricultural jobs. As in the case of H-2A visa, a petition by a U.S. employer is required duly supported by an approved Temporary Labor Certification. However, unlike the H-2A, H-2B classification is subject to a statutory numerical limit of 66,000 visas per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 to March 31) and the remaining 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 to September 30). While unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year, there is no carry over of unused H-2B visa numbers from one fiscal year to the next.

Requirements to Quality for H-2 B Non Immigrant Classification

  • The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need.
  • The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application.)

Trainee or Special Education Exchange Visitor (H-3) Visa

The H3 nonimmigrant classification allows foreign nationals to enter the United States as either a (1) Trainee to receive training, other than graduate or medical education training, that is not available in the alien’s home country; or (2) Special Education Exchange Visitor to participate in a special education exchange visitor training program for children with physical, mental, or emotional disabilities.

Trainee

This classification is designed to provide an alien with job-related training for work that will ultimately be performed outside the United States. To obtain H-3 Trainee classification, the U.S. entity that will provide training to the alien beneficiary must file a petition with the USCIS establishing the following:

  • The training will follow a structured training program.
  • The training program is not available in the foreign national’s home country.
  • The training is beneficial to the trainee’s career abroad. (The purpose of the training must be to allow beneficiary to pursue a career outside of the United States.)
  • The petitioner has no intent of employing the trainee in the United States.
  • The training will benefit the petitioner’s business.

An H-3 petition may not be approved if:

  • The training program involves productive employment with the beneficiary performing work as part of the petitioner’s regular staff.
  • The training program has no stated objectives.
  • The training program has no performance evaluation standard.
  • The petitioner has no sufficient and qualified trainers or the proposed training cannot be accomplished by the petitioner given the petitioner’s resources.
  • Beneficiary has prior experience on the proposed training.
  • The training program is being used to extend the training of a former student who has used their maximum period of optional practical training.

Petition Requesting an H-3 “Special Education Exchange Visitor

The H-3 Special Education Exchange Visitors visa is subject to a numerical cap of no more than 50 per fiscal year. A petition requesting an H-3 “special education exchange visitor” must be filed by a U.S. employer or organization with the USCIS, and the petition should include a description of:

  • The training the alien will receive.
  • The staff and facilities where the training will occur.
  • The trainee’s participation in the training.
  • US employer or organization must show that (1) the trainee is nearing the completion of a baccalaureate degree program in special education; (2) Has already earned a baccalaureate degree in a special education program, or Has experience teaching children with physical, mental or emotional disabilities.
If the petition is approved, the trainee may be allowed to remain in the United States for up to 2 years. If the trainee petition is approved for a special education exchange visitor, the trainee may remain in the United States for up to 18 months.

Media, Journalists (I) Visa

The I visa is a vital tool in a global system, where news and cultures are shared and dispatched across national lines. The I visa is available to media employees including reporters, freelance journalists and film crewmembers. Mainstream filmmakers are not eligible for this status. I visas are available to persons only to work for a foreign media outlet, or a U.S.-based subsidiary of a foreign media company.

An approved petition with the USCIS is not required to apply for an I visa. The visa application is submitted to the United States consulate at the applicant’s home country. In addition to the standard documentation requirements for nonimmigrant visa applications at U.S. consulates, the applicant must also present an employment letter issued by the foreign media company detailing the individual’s position, purpose of the trip, and expected length of stay in the United States.

Exchange Visitors (J) Visa

The J-1 visa is designed to provide educational and cultural exchange programs, and to promote the sharing of individuals’ knowledge and skills in education, arts and sciences. This visa enables people to participate in exchange visitor programs in the United States. Participants in this visa include students, trainees involved in on-the-job training, teachers engaged in research and teaching and international visitors interested in traveling, researching, consulting and demonstrating specific knowledge.

The first step for a prospective nonimmigrant exchange visitor is to be accepted in an established exchange visitor program that is SEVP certified. At the conclusion of their program, Exchange Visitor program participants are expected to return to their home countries to utilize the experience and skills they have acquired while in the U.S.

The following are the different J-1 Exchange Visitor categories:

  • (1) Au pair and EduCare
  • (2) Camp Counselor
  • (3) Government Visitor
  • (4) Intern
  • (5) International Visitor
  • (6) Physician
  • (7) Professor and Research Scholar
  • (8) Short-term Scholar
  • (9) Specialist
  • (10) Student, college/university
  • (11) Student, secondary
  • (12) Summer Work Travel
  • (13) Teacher
  • (14) Trainee

General Requirements:

Before a person can apply at a U.S. Embassy or Consulate for a J visa, he must first apply, meet the requirements, and be accepted for one of the Exchange Visitor Program categories through a designated sponsoring organization. The applicant must have a SEVIS-generated DS 2019 issued by a Department of State designated sponsor, which he must submit when applying for the visa.

Exchange visitor applicants must meet specific requirements to qualify for an exchange visitor (J) visa under immigration law. The consular officer will determine whether the applicants qualify for the visa. Additionally, applicants must demonstrate that they properly meet requirements, including the following:

  • (1) That they plan to remain in the U.S. for a temporary, specific, limited period;
  • (2) Evidence of funds to cover expenses in the U.S.;
  • (3) Evidence of compelling social and economic ties abroad; and
  • (4) Other binding ties which will insure their return abroad at the end of the visit.

Two-year Home-country Physical Presence Requirement

An exchange visitor is subject to the two-year home country physical presence requirement if the following conditions exist:

  • (1)Government funded exchange program – The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor’s nationality or last residence;
  • (2)Graduate medical education or training – The exchange visitor entered the U.S. to receive graduate medical education or training;
  • (3)Specialized knowledge or skill: Skills List – The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country, as shown on the Exchange Visitor Skills List.
  • List Item

If a J-1’s program falls under the conditions stated above, he will be subject to the two-year home-country physical presence requirement, which means he will be required to return to his home country for two years at the end of the exchange visitor program. The J-1 is ineligible to change his status to that of H, L, or K, or adjust status to that of a lawful permanent resident until he has returned to his home country for at least two years.

The two-year home-country physical presence requirement may be waived based on the following grounds:

  • No Objection Statement
  • Exceptional Hardship
  • Persecution
  • Conrad Program
  • Interested Government Agency

Fiancé(e) of a US Citizen (K-1) Visa

A fiancé(e) of a U.S. citizen who will be entering the United States solely to marry that U.S. citizen should apply for a K-1 visa. The marriage should take place within 90 days of entering the United States. Minor children of the fiancées can accompany their K-1 parents to the United States under K-2 status. The K-1 Visa enables one to apply for conditional permanent resident status.

To qualify for K-1 visa, there must be no legal impediments to marriage; the U.S. citizen and the fiancé(e) must have met in person within the past two years; and the petitioner must comply with the International Marriage Broker Regulation Act (IMBRA).

The U.S. citizen should first file a petition with the USCIS having jurisdiction over the place of his residence in the United States. The approved petition will then be forwarded by USCIS to the U.S. consulate where the beneficiary will apply for the K-1 visa.

1 status is valid for four months from approval, and may be revalidated for four-month periods.

Temporary Intracompany Transferees (L-1) Visa

In summary, L-1 visa applies to managers, executives, and persons with specialized knowledge who own or are employed by a business abroad and will continue to work for the branch, parent, subsidiary, or affiliate of the same employer in the United States. This visa comes in the following categories: (1) L-1A visas – for executives and managers; and (2) L-1B visas – for personnel with specialized knowledge.

How to qualify for L-1 Visa

  • 1. There must be a qualifying organization- The US company must be a parent, subsidiary, affiliate or branch office of the company abroad. One way to qualify is for the U.S. company to own more than 50% of the foreign company. The foreign company must be in business for at least 1 year.
  • 2. Qualifying aliens – The aliens must be working in the foreign company in the executive or managerial positions or positions involving specialized knowledge. Also aliens must have worked in the foreign company for one continuous year in the preceding three years of filing the applications and is coming to United States to continue his/her work with the same employer, its affiliate or subsidiary.

Factors to determine qualifying organization

  • Common name.
  • Regular sharing and exchange of personnel.
  • Cross directorship.
  • Sharing of technical, financial and research skills.
  • Size and general recognition of organization.

If the alien is coming to the US to open a new office, the following additional requirements apply:

  • Evidence showing that the business entity is located in the United States;
  • Evidence a sufficient physical premise to house the new office has been secured;
  • Evidence of financial ability to remunerate the alien and to begin doing business in the United States, including evidence about the size of the U.S. investment, the organizational structure of both firms, the financial size and condition of the foreign employer, and if the alien is coming as an L-1 manager or executive to open a new office, such evidence must establish that the intended U.S. operation will support the executive or managerial position within one year.

A petition filed by the U.S. company is required. The foreign employee may be eligible to change status to L-1 status if in the United States in valid nonimmigrant status, or apply for a visa at U.S. consulate.

L-1 visa can be granted up to a maximum initial period of 3 years. The total period of stay may reach 7 years for managers and executives, and 5 years for specialized knowledge personnel. However, for a new U.S. office, the L-1 is only approved for one year with extensions available in three-year increments, with a total stay not exceeding 7 and 5 years, as stated above.

Extraordinary Ability (O) Visa

O-1 Visa

The O-1 nonimmigrant visa is for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.

There are two types of O-1 visa. O-1A classification is for individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry). The other classification, O-1B, is for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.

To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability, but not necessarily to perform services requiring a person of O-1 caliber.

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

Extraordinary ability in the fields of science, education, business or athletics may be proved by receipt of a major internationally recognized award such as the Nobel Prize, or documenting at least three of the following:

  • (1) receipt of nationally or internationally recognized awards;
  • (2) membership in an organization that requires outstanding achievement;
  • (3) published materials about the applicant in professional or major trade publications;
  • (4) judgment of the work of others;
  • (5) original scientific or scholarly work of major significance in his or her field;
  • (6) evidence of authorship of scholarly work;
  • (7) evidence that he or she has been employed in a critical or essential capacity at an organization with a distinguished reputation; or
  • (8) has commanded or will command a high salary in relation to others in the field. Extraordinary ability in the field of arts means distinction, which is defined as a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered.

To qualify for this classification, the beneficiary must prove prominence in his or her field by being nominated for or the recipient of a significant international or national award or prize (e.g., Academy Award, Emmy, Grammy or Director’s Guild Award) or by documenting at least three of the following:

  • (1) lead in production having a distinguished reputation;
  • (2) critical reviews in major newspapers or trade journals;
  • (3) lead for organization that has a distinguished reputation;
  • (4) record of major commercial or critically acclaimed successes;
  • (5) significant recognition from organizations, critics, government agencies or other recognized experts in the field; or
  • (6) has commanded or will command a high salary.

The same criteria apply to extraordinary achievement in the motion picture or television, except that the USCIS will weigh the evidence differently by requiring a person of extraordinary achievement to meet a higher standard.

O-2 Visa

O-2 visas are offered to support personnel of O-1 visa holders in the fields of athletics, entertainment, motion picture and television production. This status is not applicable to personnel in the sciences, business or education. Individuals accompanying and assisting O-1 artists and athletes may be accorded this classification if the person is an integral part of the actual performance and has skills and experience with the O-1 that are specific in nature and which cannot be performed by U.S. workers. Like any other applicant for a nonimmigrant visa, O-2 applicants must also prove that they have foreign residence which they have no intention of abandoning.

Performing Athletes, Artists, Entertainers (P) Visa

There are three general classifications of Performing Athletes, Artists, and Entertainers visas, as follows:

  • (1) P-1, Athletes or Entertainment Group;
  • (2) P-2, Reciprocal Exchange;
  • (3) P-3, Culturally Unique Program.

P-1 Athletes and Group Entertainers

P-1 classification is further divided into two types:

  • (1) P-1A, Internationally Recognized Athlete; and
  • (2) P-1B, Member of Internationally Recognized Group.
  • List Item

P1-A, Internationally Recognized Athletes

P-1A classification applies to individuals who are coming to the United States temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance. The term “internationally recognized” is defined under 8 C.F.R. 214.2(p) as “a high level of achievement…evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent such achievement is renowned, leading or well-known in more than one country.”

P-1A has now been expanded to include minor league or amateur athletes who must demonstrate the following requirements:

  • (1) that the foreign league is part of an international league or association of 14 or more amateur sports teams;
  • (2) that the foreign league is operating at the highest level of amateur performance in the foreign country;
  • (3) that participation in the foreign league renders the players ineligible for scholarship or amateur athletics under the NCAA; and
  • (4) that a significant number of players who play in the foreign leagues are drafted by major league or minor league affiliates in the United States.

To request classification of a foreign athlete as a P-1A Internationally Recognized Athlete, the U.S. employer or authorized agent must file a petition with the USCIS, accompanied by the following documentation:

  • (1) A written consultation (in the form of specific opinion or letter of no objection) from an appropriate labor organization regarding the nature of the work to be done and the person’s qualification;
  • (2) A copy of the contract with a major U.S. sports league or team or a contract in an individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport;
  • (3) An explanation of the event and itinerary;
  • (4) Documentation of at least two of the following: a.Evidence of having participated to a significant extent in a prior season with a major United States sports league;: b.Evidence of having participated to a significant extent in international competition with a national team;: c.Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition;: d.A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how you or your team is internationally recognized;: e.A written statement from a member of the sports media or a recognized expert in the sport which details how you or your team is internationally recognized;: f.Evidence that you or your team is ranked, if the sport has international rankings; or: g.Evidence that you or your team has received a significant honor or award in the sport.:

If approved, a P-1A individual may be admitted for up to five years, with an extension up to another five years. After 10 years, the P-1A individual may file a new petition, depart the United States, and obtain a new five-year period in the same status.

P-1B, Members of Internationally Recognized Entertainment Group

P-1B is the classification for an individual who performs with or is an integral part or essential part of an entertainment group that has been recognized internationally (see definition above) as being outstanding in the discipline for a sustained and substantial period of time. To qualify for this classification, at least 75 percent of the members of the group must have had a substantial and sustained relationship with the group for at least one year. Individual entertainers not performing as part of a group are not eligible for this visa classification, but may be eligible as O-1s or O-2s.

The petition for classification as P-1B, to be filed by a qualified petitioner, must include the following documentation:

  • (1) A written consultation (in the form of specific opinion or letter of no objection) from an appropriate labor organization regarding the nature of the work to be done and the person’s qualification;
  • (2) Itinerary with the dates and locations of the performances;
  • (3) A copy of the contract between the petitioner and the beneficiary or summary of terms of the oral agreement under which the beneficiary will be employed;
  • (4) Evidence that the group has been established and performing regularly for at least one year;
  • (5) Statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group; and
  • (6 )Evidence that the group is internationally recognized as outstanding in the discipline for a sustained and substantial period of time as demonstrated by evidence of your group’s receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field, or evidence of at least three of the following: (a).The group has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements; (b).The group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material; (c).The group 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; (d).The group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications; (e).The group has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field; or (f).The group has commanded and 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-1B entertainment group admission may not exceed one year.

(2) P-2 Reciprocal Exchange

The P-2 classification applies to individuals who are coming temporarily to perform as an artist or entertainer, individually or as part of a group, under a reciprocal exchange program between an organization in the United States and an organization in another country. To qualify for this classification, the artist or entertainer must be entering the United States through a government recognized reciprocal exchange program. In addition, they must possess skills comparable to those of the United States artists and entertainers taking part in the program outside the United States.

To obtain P-2 visa, a sponsoring labor organization in the United States, or a U.S. employer or agent of U.S. employers must file Form I-129, Petition for a Non-Immigrant Worker. A petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent.

The petition must be accompanied by the following documentation:

  • (1) A written consultation (in the form of specific opinion or letter of no objection) from an appropriate labor organization regarding the nature of the work to be done and the person’s qualification;
  • (2) Copy of the formal reciprocal exchange agreement between the sponsoring U.S. organization(s) and the organization(s) in a foreign country which will receive the United States artist or entertainer;
  • (3) An itinerary listing the dates and locations of the events, if the events or performances will take place in multiple areas;
  • (4) Statement from the sponsoring organization describing the reciprocal exchange of United States artists or entertainers as it relates to the specific petition for which classification is sought;
  • (5) Evidence that the foreign artist or entertainer and the U.S. artist or entertainer subject to the reciprocal exchange agreement are artists with comparable skills and that the terms and conditions of employment are similar; and
  • (6) Evidence that an appropriate labor organization in the United States was involved in negotiating, or has concurred with, the reciprocal exchange of U.S. and foreign artists or entertainers.

P-2 artists and entertainers are granted admission for the time necessary to complete the event, up to one year, and extensions in one-year increments.

(3) P-3, Culturally Unique Program

The P-3 classification applies to individuals who are coming to the United States temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique. The foreign artists or entertainers must be coming for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. Additionally, they must be coming to participate in a cultural event or events which will further the understanding or development of their art form. The program may be of a commercial or noncommercial nature.

The U.S. employer or sponsoring organization must file a petition to classify the foreign artists or entertainers as P-3 nonimmigrant workers. A petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent.

The petition must be accompanied by the following documentation:

  • (1) A written consultation (in the form of specific opinion or letter of no objection) from an appropriate labor organization regarding the nature of the work to be done and the person’s qualification;
  • (2) A copy of the contract between the petitioner and the beneficiary or the summary of the terms of an oral agreement between the petitioner and the beneficiary;
  • (3) An itinerary listing the dates and locations of the events, if the events or performances will take place in multiple areas
  • (4) An explanation of the event and itinerary;
  • (5) Affidavits, testimonials or letters from recognized experts attesting to the authenticity of the beneficiary’s or the group’s skills in performing, presenting, coaching or teaching the unique and traditional art forms and giving the credentials of the expert including the basis of his or her knowledge of the beneficiary’s or the group’s skills; OR documentation that beneficiary’s or the group’s performance is culturally unique as evidenced by reviews in newspapers, journals or other published materials.
  • (6) Documentation that all of the performances or presentations will be culturally unique events P-3 artists and entertainers are granted admission for the time necessary to complete the event, up to one year, and extensions in one-year increments.

International Cultural Exchange Visitor (Q) Visa

The Q nonimmigrant visa is for individuals seeking to participate in an international cultural exchange program to provide the exchange visitor practical training and employment and to share the history, culture, and traditions of his home country with the United States.

The U.S. employer or sponsoring organization administering cultural exchange programs must file a petition for Q-1 classification. In support of the petition, the petitioner must submit evidence that it maintains an established internal cultural exchange program, which must:

  • (1) take place where there is interaction with the American public
  • (2) have cultural component designed to exhibit or explain the attitude, customs, history, heritage, philosophy or traditions of the country; and
  • (3) have a work component that serves to achieve the cultural objective of the program.

In addition, the petition must also establish that the petitioner: 

  • (1) has designated a qualified employee to administer the program and serve as liaison with USCIS;
  • (2) will offer the alien wages and working conditions comparable to those accorded local workers similarly employed; and has the financial ability to compensate the participants.

The Q nonimmigrant classification does not have a provision for any spouse or children to accompany or follow to join a Q-1 nonimmigrant. Therefore, any spouse or children wishing to enter the United States must qualify independently for a nonimmigrant classification.

Religious Workers (R) Visa

R-1 visas are available to ministers and religious workers of non-profit religious organizations, or an affiliate of one, in the United States. To qualify for R-1 visa, the minister or religious worker must have been a member of the religious denomination for at least two years immediately preceding the filing of the petition and is qualified for the position.

A minister may qualify for R-1 classification if he or she is fully authorized and trained in religious denomination to conduct religious worships and perform other duties usually performed by clergy of denomination and is coming to the United States to work solely as a minister for at least 20 hours per week.

A religious worker may qualify if he is coming to the United States to perform a religious vocation or occupation in either a professional or nonprofessional capacity, for at least 20 hours per week. For this purpose, religious vocation means a form lifetime commitment through vows, investitures, ceremonies, or similar indicia to a religious way of life such as nuns, monks, and religious brothers and sisters.

The religious denomination or organization employing the minister or religious worker must file a petition with the USCIS. An R-1 nonimmigrant may be admitted initially for up to 30 months and allowed extensions in 30-month increments up to a maximum of five years. This maximum period does not apply if the R-1 nonimmigrant does not stay continuously in the United States and whose employment is seasonal, intermittent, or less than six months per year, or if the person resides abroad but regularly travels to the United States.

An R-1 religious worker’s spouse and unmarried children under the age of 21 may be eligible for R-2 classification. An R-2 dependent is not authorized to work based on this visa classification.

Criminal and Terrorist Informants (S) Visa

The S visas, S-1 and S-2, are available to those who have critical reliable information regarding a criminal organization or enterprise and are willing to supply or has supplied such information to enforcement authorities or court. A person may qualify for S-1 visa if his or her presence in the United States is determined by the Attorney General to be essential to the success of an authorized criminal investigation or prosecution. The S-2 visa may be granted to those who will be or have been placed in danger as a result of providing such information and are eligible to receive an award under 22 U.S.C. §2708(a).

S visas are subject to annual numerical limitation of 200 visas for S-1 and 50 visas for S-2. A person can be admitted for a maximum period of three years, with no extensions. A person may change status from one nonimmigrant category to S visa, but a person holding S visa may not change status to another nonimmigrant visa.

The application for S visa is made on Form I-854, filed by the federal or state law enforcement agency. The application must be endorsed by the U.S. Attorney having jurisdiction over the investigation or prosecution and by the highest level of the federal or state law enforcement agency.

S nonimmigrants must go through a two step process to apply for a Green Card.

  • Step One – File Form I-854 or Interagency Alien Witness and Informant Record.
  • Step Two – After Form I-854 is approved, file Form I-485 or Application to Register Permanent Residence or Adjust Status.

Among the supporting evidence for Form I-485 are the following: Two passport-style photos; Copy of birth certificate; Form I-693, Report of Medical Exam and Vaccination Record; Copy of Form I-94, Entry/Exit Record; Copies of all pages in your passport. If you do not have a passport, you should submit an explanation of why you do not have a passport; A list showing the dates of all arrivals and departures from the United States while you were in S nonimmigrant status with an explanation for each departure of why you left the United States; Evidence of the relationship to the principal S nonimmigrant witness or informant (e.g., birth certificate, marriage certificate) if you are filing for a Green Card as a derivative beneficiary of an S nonimmigrant; Proof of employment; Applicable fees

Victims of Trafficking (T) Visa

There are 5,000 T visas allocated every year for persons who are or have been victims of severe forms of human trafficking and are willing to assist law enforcement in the investigation or prosecution of acts of trafficking. Human trafficking is a form of modern-day slavery in which traffickers lure individuals with false promises of employment and a better life. Traffickers often take advantage of poor, unemployed individuals who lack access to social safety nets. The term “severe forms of trafficking” can be broken into two categories, as follows:

  • (1) Sex trafficking, which is the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act where the commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such act is under 18 years of age; and
  • (2) Labor trafficking, which refers to the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery.

The T nonimmigrant visa allows victims to remain in the United States to assist in the investigation or prosecution of human traffickers. To qualify for T visa, the applicant must:

  • (1) Be or have been a victim of severe trafficking in persons.
  • (2) Be physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry on account of trafficking.
  • (3) Comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking.
  • (4)Demonstrate that he or she would suffer extreme hardship involving severe and unusual harm if removed from the United States.
  • (5)Admissible to the United States or obtain a waiver of inadmissibility.

If the applicant is under the age of 18 at the time of the victimization, or if he or she is unable to cooperate with a law enforcement request due to physical or psychological trauma, the applicant may still qualify for the T nonimmigrant visa without having to assist in investigation or prosecution.

The application is made on Form I-914, which is currently not subject to filing fees. Once a T nonimmigrant visa is granted, the person may hold such status for up to four years and can apply for permanent residence after three years subject to certain requirements. While in T status, the person is eligible to work in the United States but must obtain an Employment Authorization Document from the USCIS on Form I-765.

Eligibility for qualifying family members: 

Certain qualifying family members may be eligible for T nonimmigrant status

  • (1) Your parents;
  • (2) Your unmarried siblings under 18 years of age; and
  • (3) The children of any age or marital status of your qualifying family members who have been granted derivative T nonimmigrant status.

NAFTA Professional Workers (TN) Visa

Under the North American Free Trade Agreement (NAFTA), the nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the U.S. in a prearranged business activity for a U.S. or foreign employer.

To qualify for this visa, the following requirements must be met:

  • (1) The profession be on the NAFTA list.
  • (2) The foreign national must possess the necessary training or qualifications for that profession.
  • (3) The proposed position must be classified as a professional position.
  • (4) The foreign national must work for a US employer.

Canadian citizens usually do not need a visa as a NAFTA Professional, although a visa can be issued to qualified TN visa applicants upon request. A Canadian citizen without a TN visa can apply at a U.S. port of entry. A Canadian residing in another country with a non-Canadian spouse and child would need a visa to enable the spouse and child to be able to apply for a visa to accompany or join the NAFTA Professional, as a TD visa holder.

In contrast, Mexican citizens require a visa to request admission to the U.S. However, a USCIS approved petition is not required.  Once you are approved for a TN visa, you may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station

Victims of Crimes (U) Visa

Victims of qualifying criminal activity who have suffered substantial mental or physical abuse because of that activity and who are also willing to assist law enforcement agencies or government official in the investigation of that activity may file for U visa. There are 10,000 visas allocated every year for this nonimmigrant classification, which limit applies only to the principal applicants.

The term “qualifying criminal activity” includes abduction, incest, rape, abusive sexual contact, involuntary servitude, sexual assault, blackmail, kidnapping, sexual exploitation, domestic violence, manslaughter, slave trade, extortion, murder, torture, false imprisonment, obstruction of justice, trafficking, felonious assault, peonage, unlawful criminal restraint, female genital mutilation, perjury, witness tampering, hostage, prostitution, and other related crimes.

 

A person is a victim of qualifying criminal activity if he or she falls under any of the following categories:

  • (1) A person who has suffered direct and proximate harm as a result of the commission of one of the criminal acts named in the statute;
  • (2) “indirect victim” family members where the direct victim is deceased due to murder or manslaughter or is incompetent or incapacitated and where the family is— (a). the spouse and children under 21 or (b) his or her siblings under 18 and parents as well as spouse and children, if the direct victim is under 21.
  • (3) Where the person is the victim of witness tampering, obstruction of justice or perjury, including attempt, solicitation or conspiracy to commit one or more of those offenses if he or she has been directly and proximately harmed by the perpetrator of those crimes and the perpetrator committed them as a means to avoid or frustrate efforts to investigate, arrest, prosecute or otherwise bring justice to the perpetrator for other criminal activity, or to further the perpetrator’s abuse or exploitation of or undue control over the petitioner.

In order to apply for that status, the alien must file a petition on Form I-918 with the USCIS and include in the petition a signed statement describing the facts of the victimization and a certification from a federal, state, or local law enforcement official certifying the following:

  • (1) The alien has been a victim of qualifying criminal activity;
  • (2) The alien possesses information about the qualifying criminal activity; and
  • (3) The alien has been, is being or is likely to be helpful to the investigation and/or prosecution of that qualifying criminal activity.

Without the certification, the alien will be ineligible for U nonimmigrant status. The certification must be prepared and issued by qualified certifying agencies, which include federal state or local law enforcement agencies or other agencies that have criminal investigative jurisdiction in their respective areas of expertise.

Once approved, the alien will be authorized to work in the United States incident to status and will be automatically issued an initial EAD by the USCIS, subject to the filing of an application for EAD renewal on Form I-765 once the validity of the initial EAD has expired. U status may be granted for a period of four years, and may be extended if the certifying official attests that the U-1’s presence in the United States is necessary to assist in the investigation or prosecution of qualifying criminal activity, or it is determined by the Department of Homeland Security that there are exceptional circumstances warranting the extension.

The U visa holder adjust status to that of a lawful permanent resident if he or she has been physically present in the United States for a continuous period of three years and in the opinion of the Secretary of DHS his or her continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.

Spouses and Minor Children of Lawful Permanent Resident (V, K-4) Visa

On December 21, 2000 the President signed into law significant new immigration legislation, effective April 1, 2001. The Legal Immigration and Family Equity (LIFE) Act and amendments have effectively created new categories of nonimmigrant visas, including the V Visas, the K-3 Visa and the K-4 Visa. Intended for second preference beneficiaries and spouses of U.S. citizens, these visas help ease the immigration process for thousands of individuals, and reunite families separated for long periods of time during the process of immigration.

These categories allow the issuance of nonimmigrant visas to spouses, children and, in some cases, grandchildren of both lawful permanent resident aliens and spouses of U.S. citizens. Beneficiaries may apply for admission to the United States as non-immigrants and then remain in the United States until the visa petition is approved or denied. If the petition is approved, beneficiaries may continue to remain in the United States until the application for adjustment of status is approved or denied, or may seek an immigrant visa at a consular office abroad.

These categories specifically relate to spouses and children for whom an immigrant visa or adjustment of status is not available even though the petition has been filed. This unavailability may be due to lengthy processing delays or the absence of available visa numbers due to annual visa limitations.

V Visa

The V category is open to spouses and unmarried children under the age of 21 of legal permanent residents who have filed petitions for second preference (F2A) status with the USCIS on their behalf. These petitions must have been filed on or before December 21, 2000 and fall under any of the following circumstances: (1) the petition has been pending for at least three years; (2) if the petition has been approved, three years or more have elapsed since the approval and a visa number is still not available; or (3) a visa number is available but the petition or adjustment application remains pending. Unmarried children under the age of 21 of those beneficiaries may also be eligible for this classification.

K-3 Visa

The K-3 visa is open to spouses of U.S. citizens who are the beneficiaries of an immigrant visa petition (I-130). The spouses’ unmarried children under the age of 21 are also eligible and will be classified as K-4. Unlike the V category, there are no laws enabling visa issuance for grandchildren of the spouse or the petitioner.

In order to obtain K3 classification, the nonimmigrant visa petition must have been filed in the U.S. by the U.S. citizen spouse. Applicants must demonstrate that their marriage to the U.S. citizen is valid, that they are the beneficiaries of an I-130 immigrant visa petition filed with the USCIS, and that they wish to enter the U.S. to await approval of the I-130 petition or the availability of an immigrant visa.

If the petition has been approved, beneficiaries may wish to process their immigrant visas rather than the K3 visa. When the beneficiary applies for the nonimmigrant K3 visa, the consular officer will ask whether they wish to find out if the approved petition has been received from USCIS. If so, the applicant may then have the petition forwarded to the processing consular so that the applicant may file an immigrant visa application. The application should be filed at the consular post designated by the Deputy Assistant Secretary of State for Visa Services to process immigrant visa applications for nationals of the country in which the K3 processing post is located.

Children of spouses who qualify for this status will be classified as K4. In order to obtain K4 classification, the candidate must establish that he/she is the child of an alien entitled to K3 classification. If the marriage of the beneficiary to the U.S. citizen took place abroad, the visa must be issued in the country where the marriage took place. If the country does not have a consular post, the beneficiary must apply at the consular post designated by the Deputy Assistant Secretary of State for Visa Services to accept immigrant visa applications from nationals of that country. If the marriage took place in the U.S. the applications must be filed in the country of residence of the alien spouse.

Because the K3 and K4 Visas function as substitutes for immigrant visas, much of the process is similar to that of obtaining an immigrant visa. Applicants may be asked to provide local documents establishing family relations and, in some cases, testimonials to establish the truth of these relationships. Applicants may also be asked to present evidence to establish that their health and criminal backgrounds meet standards sufficient to protect the American public.

Looking to enter the United States for work, pleasure, or study on a temporary basis? At MTS Law, we specialize in providing legal representation to help individuals obtain nonimmigrant visas. Navigating the nonimmigrant visa application process can be complex, as each visa category has specific requirements and eligibility criteria. Our experienced immigration lawyers possess in-depth knowledge of the different visa classifications and can guide you through the entire process. We understand the significance of your temporary stay in the United States and are dedicated to maximizing your chances of a successful outcome. Contact our law firm today for comprehensive legal representation and guidance in obtaining your nonimmigrant visa.

Disclaimer

The information presented in this section provides a general overview of the naturalization process in the United States. For accurate and up-to-date information tailored to your individual case, we recommend seeking professional assistance from MTS Law. With over 10 years of experience, our team has successfully guided clients through various aspects of immigration law, ensuring the best possible outcomes for their clients. Contact MTS Law today for comprehensive and reliable immigration legal services.

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