A. NONIMMIGRANT VISAS | Overview

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.