NONIMMIGRANT- TYPE OF VISA DETAILS

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:

VISITORS (B-1/B-2)

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:

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

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.

CREWMEMBERS (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 TRADERS (E-1) / INVESTORS (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: 

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.

Employees of Treaty Trader and Treaty Investor

Employees of E-1/E-2 treaty employers must have same nationality as the treaty employers and must be either executives and supervisors or nonsupervisory essential employees with special qualifications. As defined under the regulations, special qualifications are those skills and/or aptitudes that an employee in a lesser capacity than executive or supervisory brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise.

TREATY TRADER (E-1)

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)

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:

However, in order to be considered “substantial,” the investment must meet the following tests:

The enterprise in which the treaty investor is investing capital must be a bona fide enterprise and not be marginal. It is a bona fide enterprise if it is a real, active, and operating commercial or entrepreneurial undertaking which produces services or good for profit. It is marginal if it does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. If the enterprise is a newly set-up business or still in the process of being set up, but has a present or future capacity to make a significant economic contribution, it may still qualify as E-2 enterprise. In such cases, a business plan with a 5-year financial projection showing the income-generating capacity of the enterprise will be required.

The treaty investor must also demonstrate that he or she will develop and direct the investment enterprise. He or she must assume a position that is principally and primarily executive or supervisory in nature which provides him or her ultimate control and responsibility for the enterprise’s overall operation or a major component thereof. To establish control, the treaty investor must demonstrate ownership of at least 50% of the enterprise. The consular or immigration officer will also consider the treaty investor’s executive and supervisory skills and experience, among other factors, in determining whether he or she meets this particular requirement.

Employees of Treaty Trader and Treaty Investor 

Employees of E-1/E-2 treaty employers must have same nationality as the treaty employers and must be either executives and supervisors or nonsupervisory essential employees with special qualifications. As defined under the regulations, special qualifications are those skills and/or aptitudes that an employee in a lesser capacity than executive or supervisory brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise.

AUSTRALIAN SPECIALTY OCCUPATION PROFESSIONALS (E-3)

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.

To qualify for an E-3 visa, the person must demonstrate that he or she:

STUDENT: ACADEMIC (F) / VOCATIONAL (M)

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.

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

(2) For M-1 students: 

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

EMPLOYEES OF DESIGNATED INTERNATIONAL ORGANIZATION (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:

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 OCCUPATIONS (H-1B)

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.

For the job offer to qualify as a specialty occupation, it must meet at least one of the following criteria:

For the H-1B applicant to qualify to accept a job offer in a specialty occupation, he must meet at least one of the following criteria:

Duration

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.

However, the individual may be allowed extension beyond six years without having to depart the United States under either of the following circumstances: 

CHANGING EMPLOYERS AND MULTIPLE EMPLOYMENT

A person lawfully admitted in H-1B status may port or switch to another employer upon the filing of a new petition by the new employer, provided that the new petition is not frivolous and it was filed before the expiration of his authorized stay. The period from the time of filing and while the new petition is pending, even if the person’s Form I-94 validity period has expired, is considered authorized stay. The H-1B may begin employment with the new employer as soon as the new petition is properly filed and without waiting for the new petition to be approved.

An H-1B may also work for more than one employer at a time, provided each employer has filed an H-1B petition. Unlike in H-1B portability, the petition of each concurrent employer must be approved before the H-1B employee may start working for them.

Dual Intent

The H1B visa is a temporary visa. It is not an immigrant visa, nor does it automatically lead to becoming a permanent resident of the United States. However, an H1B visa holder may be a beneficiary of an immigrant visa petition while in temporary H1B status.

H-1B is one of the so-called “dual intent” visas or exceptions to the application of the presumption established in Section 214(b) of the 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.

FREE TRADE AGREEMENT PROFESSIONALS: CHILE / SINGAPORE (H-1B1)

The H-1B1 visa, created by the U.S.-Chile Free Trade Agreement and the U.S.- Singapore Free Trade Agreement, is similar to the H-1B and is also designed for individuals entering the United States to work in specialty occupations. As in the case of the H-1B visa, H-1B1 visa requires a U.S. sponsor who is willing to employ the individual temporarily in the United States and pay the individual the applicable prevailing wage for the position. However, unlike the H-1B, there is no need for the employer to file an I-129 Petition with the USCIS and the individual may apply for the visa directly at a U.S. consulate, unless the individual is present in the United States and wishes to change status, extend status, or change from one H-1B1 employer to another.

H-1B1 is granted in one-year increments and is not subject to the six-year limitation applicable to

H-1B. Portability is not applicable to H-1B1.

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.

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

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 NONAGRICULTURAL 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.

To qualify for H-2B nonimmigrant classification:

TRAINEE OR SPECIAL EDUCATION EXCHANGE VISITOR (H-3)

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:

An H-3 petition may not be approved if:

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:

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)

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)

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.

J Categories

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

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:

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:

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:

FIANCE(E) OF A U.S. CITIZEN (K-1)

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.

INTRACOMPANY TRANSFEREES (L)

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.

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.

Factors looked at 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.

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.

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

STUDENT: ACADEMIC (F) / VOCATIONAL (M)

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.

Individuals on student visa may not engage in employment, unless authorized under any of the

following circumstances:

(1)For F-1 students:

(2) For M-1 students:

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

EXTRAORDINARY ABILITY (O)

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:

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:

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)

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

(1) P-1 ATHLETES AND GROUP ENTERTAINERS

P-1 classification is further divided into two types:

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:

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:

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:

(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:

(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:

INTERNATIONAL CULTURAL EXCHANGE VISITOR (Q-1)

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

RELIGIOUS WORKERS (R)

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.

CRIMINAL AND TERRORIST INFORMANTS (S)

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.

VICTIMS OF HUMAN TRAFFICKING (T)

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:

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.

NAFTA PROFESSIONAL WORKERS (TN)

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:

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.

VICTIMS OF CERTAIN CRIMES (U)

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:

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:

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)

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.