A. Nonimmigrant Visas
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 nonimmigrant’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.
There are two ways to apply for a nonimmigrant visa. An individual can apply at a U.S. consulate in his home country. Depending on the type of nonimmigrant visa, a previously approved nonimmigrant petition filed with the U.S. Citizenship and Immigration Services (USCIS) may be required. If the individual is already in the United States and maintaining valid nonimmigrant status, he 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 current status up until the extension or change of status application is granted or denied.
In most cases, refusal of nonimmigrant visa applications at the consulates is based on Section 214(b) of the U.S. Immigration and Nationality Act (INA). Section 214(b) provides that all foreign nationals seeking entry on nonimmigrant status, with a few exceptions, are presumed to be intending immigrants. If visa is refused under this Section, this means that the applicant has not been able to overcome the presumption that he is an intending immigrant by demonstrating strong ties to his home country and that he has a residence in his home country that he has no intention of abandoning.
The presumption in Section 214(b) does not apply to the following visa categories: H-1B, H-1C, H-4, L-1, L-2, and V. The regulations further provide that the approval of a permanent labor certification or the filing of an immigrant petition for an individual shall not be a basis for denying an H-1C or H-1B petition or a request to extend such a petition, or the individual’s admission, change of status, or extension of stay. The individual may legitimately come to the United States as an H-1C or H-1B nonimmigrant and at the same time, seek to become a permanent resident of the United States; provided that he would voluntarily depart at the end of his authorized stay.
DIPLOMATS AND FOREIGN GOVERNMENT OFFICIALS (A)
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:
(1)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;
(2)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
(3)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.
The visitor visa is a type of nonimmigrant visa for individuals coming to the United States temporarily for business (B-1), for pleasure, tourism or medical treatment (B-2), or a combination of both (B-1/B-2).
B-1 Visitor Visa
Whether an individual may be permitted to travel on B-1 visa depends on the specific business purpose.
The following are 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.
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.
B-2 Visitor Visa
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.
In general, 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. While in the United States, B-2 visitors may also be eligible to change status to another nonimmigrant category.
TRANSITING THE UNITED STATES (C)
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.
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.