What is a Visa?

A visa is a stamp placed in your passport by a U.S. consulate or embassy outside of the U.S. All visas serve as U.S. entry documents. They can be designated as either nonimmigrant or immigrant. Nonimmigrant visas are for people with permanent residence outside the U.S., but who wish to be in the U.S. on a temporary basis.  Immigrant visas are for those who intend to live permanently in the U.S.

Except for a few types of visa renewals, visas cannot be issued inside American borders.

Thus, you must be outside the U.S. to obtain a visa.

What is the Difference between a Visa and Status?

Status is the name for the privileges given when you receive immigration benefits, either as a nonimmigrant or permanent resident (i.e., a “green card” holder). Visas and green cards are things you can see and touch. A status is not.

While you must be given a status with each visa, the reverse is not true. If you want nonimmigrant privileges, you can get a nonimmigrant status by applying in the U.S. and keep that status for as long as you remain on U.S. soil.  You will not, however, get a visa at the same time because visas can be issued only outside the U.S.  This is important for nonimmigrants, because they can travel in and out of the U.S. on visas, but not with a status. If you have nonimmigrant status, but not a corresponding visa, you will lose it as soon as you leave the U.S. You can regain your privileges only by getting a proper nonimmigrant visa from a U.S. consulate or embassy before returning.

What is an I-94 Card ?

An I-94 card is a small green or white card given to all nonimmigrants entering the U.S.

It serves as evidence that you have entered the country legally. On this card, an immigration inspector stamps either a specific date or "D/S" (duration of status).  This card, rather than the visa in your passport, governs the authorized period of stay in the U.S. for any given visit.

If you are admitted to the U.S. until a specific date, and overstay the I-94 card end date without filing a timely application for extension of stay or change of status, you will automatically void or cancel all the visas you may have in your passport.  In addition, you may be required to obtain future U.S. visas only in your home country.

What is the Visa Waiver Program ?

Nationals from certain countries may enter the U.S. without a visa as tourists for 90 days or less.  This is permitted under what is known as the Visa Waiver Program (VWP). As of October 26, 2005, all participating countries are required by U.S. law to ensure that their passports are machine readable with biometric information on an electronic chip, and/or digital photos. For countries not able to meet the new passport deadline, people traveling to the U.S. will need to apply for a visa. For more detailed information, click here.

VWP nationals may enter the U.S. under the same rules as the B-1/B-2 classifications, for up to 90 days.  VWP entrants are not eligible for change of status, extension of status, or adjustment of status (unless it is on the basis of an immediate relative petition).  In an emergency, it may be possible for VWP entrants to obtain an additional period of 30 days to depart the U.S., after prior approval from U.S. Citizenship & Immigration Services (USCIS).

What are my rights if I have been stopped by government officials ?

If you have been stopped by the police, the FBI, or any of the Department of Homeland Security Agencies (USCIS, CBP, or ICE) please click here for important information from the ACLU. Citizens and non-citizens alike will find answers to the questions: "What Constitutional Rights Do I Have?" "What If the Police or FBI Contact Me?" "What If I Am Not a Citizen and USCIS Contacts Me"? and "What Are My Rights At Airports?

Paul Philippe Bertoni – Avocat Bilingue

paul@bertoni-law.com

www.bertoni-law.com

B-1 Business Visitors

B-1 visas permit entry into the U.S. temporarily for business activities, such as:

• consulting or meeting with business associates;

•attending a scientific, educational, religious, or professional conference;

•negotiating contracts;

•attending a meeting of the board of directors of a U.S. corporation, if the visitor is a member of the board;

•engaging in non-productive training that benefits the visitors foreign employer;

•conducting types of missionary work;

•performing services as a domestic servant of certain nonimmigrant workers;

•performing services as a domestic servant of a U.S. citizen who permanently resides abroad or who is temporarily assigned to the U.S.;

•conducting independent research;

•participating in nonsalaried professional athletic events;

•investigating a potential E-2 investment or, for foreign corporate employees, coming to set up a U.S. subsidiary; or

•participating in voluntary religious activities.

A B-1 visitor is not allowed to perform productive work in the U.S.  Receiving pay from U.S. sources is not the determining factor in whether a person's activities constitute work.  Productive activities performed on behalf of a U.S. entity while in the U.S. are likely to be viewed as work even if performed voluntarily or where the pay comes from foreign sources.

To prove eligibility for a B-1 visa, you must demonstrate that you: intend to remain for a specific, limited period; have funds to cover the purpose of the U.S. visit; have family, social, and economic ties abroad; and maintain a residence in a foreign country that will ensure your return abroad at the end of the visit.  The B-1 visitor will generally remain on a foreign employer's payroll and perform all duties for the benefit of the foreign employer, and is not allowed to receive compensation from a U.S. source, other than reimbursement for incidental expenses. Applications for a B-1 visa may be made directly at a U.S. embassy or consulate abroad.

 

B-1 Duration

B-1 visa holders are generally admitted for the period of time necessary to conduct the business. In theory, a B-1 entrant may be admitted up to a maximum of six months. However, in practice, immigration officers typically allow business visitors to remain in the U.S. for no more than 30-90 days. When unexpected events necessitate an extension, individuals may apply to extend the authorized period of stay up to six months. However, prolonged business visits may give rise to a presumption that the visitor is engaged in prohibited productive work.

 

B-2 Tourist Visitors

 

B-2 visas permit entry into the U.S. temporarily for activities including tourism; social visits to friends or relatives; medical treatment; participating in conventions of social organizations; participating in amateur musical or sports events; accompanying D or B-1 visitors; and accompanying a non-spouse long-time partner (regardless of gender) in E, H, or L status.

A B-2 visitor is not allowed to work in the U.S. To prove eligibility, you must demonstrate that you: intend to remain for a specific, limited period; have funds to cover expenses in the U.S.; have social and economic ties abroad; and maintain a residence outside the U.S. that will ensure your return abroad at the end of the visit.  Applications for a B-2 visa may be made directly at a U.S. embassy or consulate abroad.

Prospective students seeking admission in B-2 status who plan to change to F-1 student status must declare this intent to immigration officials at the port of entry.  The immigration official will note this intention on the person's Form I-94, which is required in order for the student to change to F-1 status while inside the U.S.

 

B-2 Duration

Tourists are usually given stays of up to six months.

 

E-1 Treaty Traders

 

E-1 visas permit entry into the U.S. to further substantial trade that is international in scope. The trade must be primarily between the U.S. and the treaty country where the person holds citizenship. For a list of current E-1 treaty countries, click here. 

In order for a business to qualify for E-1 visas, it must demonstrate that the U.S. business has created substantial trade between the U.S. and the treaty country. Trade is not limited to goods and services and must be principally with the treaty country. This means that more than 50% of the total volume of international trade done by the U.S. business must be between the U.S. and the treaty country. If the U.S. entity is a branch office, then the foreign business must have more than 50% of its trade with the U.S.

At least 50% of the U.S. entity must be owned by non-U.S. resident nationals of the treaty country. If the company is publicly traded, the firm's nationality is considered to be that of the country in which the firm's stock is listed and traded.

 

 

E-2 Treaty Investors

 

E-2 visas permit entry into the U.S. to further a substantial investment in a U.S. enterprise made by individuals or businesses that are citizens of a treaty country. For a list of current E-2 treaty countries, click here

For a business to qualify for E-2 visas, it must demonstrate that a substantial investment in the U.S. business has been made by individuals or companies that are citizens of the treaty country. In order to be considered a substantial investment, the funds must be "at risk". Whether the actual amount invested is substantial depends on the type of business and is weighed based upon a variety of factors. In addition, the investment must not be "marginal" (i.e., not made solely for the purpose of earning a living).

Similar to the E-1 visa, at least 50% of the U.S. entity must be owned by nationals of the treaty country to qualify for E-2 visas.

 

 

Applying for an E-1 or E-2

 

Before applying for an E-1 or E-2 visa, the company in the U.S. where the applicant will work must become E-1 or E-2 qualified. An initial request to qualify the U.S. company for E-1 or E-2 status must be filed together with at least one individual's E-1 or E-2 application at the U.S. Embassy or Consulate that has jurisdiction over the treaty country. Once the company is E-1 or E-2 qualified, any national of the treaty country who will work for the qualified U.S. entity may apply for E-1 or E-2 visas at the appropriate U.S. Embassy or Consulate.

Once the company is qualified, a treaty country national can apply for an E-1 or E-2 visa as an executive or supervisor, or an essential employee. The individual does not have to be employed by the company abroad to qualify for E-1 or E-2 status.

E-1 and E-2 visas can be issued for up to five years and are renewable indefinitely as long as the company and the individual continue to qualify for E-1 or E-2 status. Upon each entry to the U.S., E-1 and E-2 visa holders are generally granted two years of E status on Form I-94 as long as the E-1 or E-2 visa is valid at the time of entry.

Dependent visas are available for spouses and unmarried children (under 21) of E-1 or E-2 visa recipients. Furthermore, E spouses are eligible to apply for work authorization after they enter the U.S.

E-1 or E-2 nonimmigrants who do not plan to travel internationally may apply to extend their status for up to two years by filing an application with U.S. Citizenship & Immigration Services (USCIS).

 

E-3 Australian Professionals

On September 6, 2005, the U.S. Department of State published regulations for the newly created E-3 visa category, allowing applications for visas for Australian professionals to proceed. The E-3 visa program mirrors the Singapore and Chile H-1B free trade visas, but benefits from a 10,500 cap separate from the H-1B cap. The regulation establishes the following requirements for an E-3 visa:

• The E-3 applicant must be an Australian national.

• The position offered by the U.S. employer must meet the same "specialty occupation" requirements as established by the H-1B program. Thus, this category will only apply to professional level positions (typically requiring a Bachelor's degree or higher).

• The E-3 applicant must present evidence of academic or other qualifying credentials for the specialty occupation to the consular officer.

• Before filing, the employer will need to secure wage and working condition approval from the Department of Labor using the Labor Condition Application process. The original Labor Condition Application must be submitted to the Consular officer as part of the application package. Certified copies are permitted by discretion.

• The employer must detail in writing the job offer, wage and specialty occupation requirements.

• Spouses and children of E-3 nonimmigrants are eligible for E-3 dependent visas. Dependents can be any nationality (i.e. they do not need to posses Australian citizenship). E-3 spouses are eligible to apply for E spousal work authorization once in the U.S. under the same process established for spouses of E-1/2 employees. The spousal work permit is not limited to a specialty occupation or a specific employer. E-3 visas issued to dependents are not counted towards the annual 10,500 allocation.

• The E-3 category is exempt from the six year H-1B time limit and can be renewed indefinitely. However, E-3 visas require "nonimmigrant intent" meaning that the visa holder must demonstrate an intention to depart from the U.S. upon the termination of the E-3 status. It is therefore possible that E-3 status might be rejected if the applicant has indicated an intention to immigrate to the U.S.

  

 

H-1B Specialty Occupation Workers

 

H-1B visas apply to job candidates in a "specialty occupation." U.S. Citizenship and Immigration Services (USCIS) considers specialty occupations to be those requiring the theoretical and practical application of a body of highly specialized knowledge. Typically this will entail completion of a specific course of higher education. For certain individuals with specialized skills and considerable work experience, equivalency evaluations can be obtained to meet the educational requirements.

 

Authorization for H-1B employment is specific to the petitioning company. Additionally, the authorization extends only to the specific occupation named in the H-1B petition. The status cannot be transferred between employers without the new company first filing a petition with USCIS.

 

Before filing an H-1B petition, the company must file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). The LCA defines the employer's obligations to ensure that the foreign worker does not adversely affect the wages or working conditions of U.S. workers. Employers with a large contingent of H-1B workers may be considered an H-1B dependent company and add additional obligations.

 

Upon approval of the LCA, the H-1B petition is filed with USCIS.  At the time of filing, employers are responsible for paying the substantial filing fees for the H-1B classification, including a one time Fraud Detection and Prevention fee ($500), and two time H-1B

 

Education and Training Fee ($1,500). Certain educational institutions and nonprofit or government research organizations are exempt from the Education and Training Fee, and employers with less than 26 full-time employees pay one-half of the Education and Training Fee ($750).

 

Candidates previously issued an H-1B visa or otherwise provided H-1B status and who have lawfully worked in the U.S., may be eligible to take advantage of a "portability" provision in the law. "Portability" makes it faster to transition between H-1B employers. The portability provision permits some H-1B holders to begin their new employment with the new company upon the filing of the new H-1B petition. Candidates and companies should make sure that portability applies in their situation, and candidates are advised to continue with their present employment until portability attaches. Candidates not already holding lawful H-1B status must generally wait for USCIS approval before beginning work.

 

New H-1B visas are subject to annual limits per fiscal year. Currently the annual limit is 65,000 per year with an additional 20,000 available to H-1B applicants holding U.S. advanced degrees. After the limit is reached, a candidate must wait until at least the start of USCIS' fiscal year (October 1) to obtain H-1B status and begin work.  Due to the cap, employers often need to accelerate their H-1B process, to file as early as allowed (April 1) for the next fiscal year.  Certain educational institutions and nonprofit or government research organizations are exempt from the cap.  Special cap number allocations are also available to H-1B non-immigrants who are nationals of Chile or Singapore pursuant to special Free Trade Agreements; however, the H-1B duration is limited to only one year (renewable).

 

H-1B Duration

H-1B petitions may be approved for up to three years, and can be extended for up to a total of 6 years maximum stay, regardless of the number of employers. Ordinarily, after 6 years of H-1B status, the candidate must usually reside outside of the U.S. for a full year before new eligibility arises. However, in certain limited circumstances, H-1B employees who have started a green-card process may be eligible to extend their status beyond six years, in one-year increments. The employee may be eligible for extension beyond six years if either an application for labor certification or an immigrant visa petition was filed on his or her behalf at least 365 days prior to reaching the 6-year H-1B limit. NOTE: A labor certification is different from a labor condition application ("LCA"); it is often a prerequisite for an I-140 immigrant petition filed in connection with obtaining permanent residence (i.e. a “green card”).

 

H4 Dependents H1B

 

Dependent visas (H-4) are available for spouses and unmarried children (under 21) of H-1B workers. H-4 spouses and children may not work.

H-1B Portability

An H-1B worker who wishes to transfer to a new employer must have the prospective employer file a new H-1B petition.  In some circumstances, an individual who was previously in H-1B status or issued an H-1B visa may be able to begin work upon filing of the H-1B petition under a legal provision known as H-1B portability.  Portability requires that:

• The individual was lawfully admitted to the U.S.;

• The new petition is nonfrivolous;

• The new petition was filed before the date of expiration of the previous period of stay;

• The H-1B beneficiary has not worked without authorization since his or her last entry.

Since the portability provisions contain certain restrictions, it is important for the individual and employer to consult with immigration counsel to ensure that portability attaches, and for the H-1B worker to continue with his or her present employment until the new H-1B petition is filed.  Individuals not already holding H-1B status must wait for USCIS approval before beginning work.

 

H-2B Temporary Workers

H-2B visas are for individuals coming temporarily to the U.S. to perform services or labor.  The employer must demonstrate that no U.S. workers capable of performing the service or labor are available in the U.S., and that employment of the H-2B worker will not adversely affect wage rates and working conditions of similarly employed U.S. workers.

To determine whether the job is temporary, the employer must demonstrate that the request for labor is a one-time occurrence, a seasonal need, or an intermittent need.  Generally, H-2B petitions are approved for one year or less.

Before filing the H-2B petition with U.S. Citizenship & Immigration Services (USCIS), the employer must obtain a temporary labor certification approval from the U.S. Department of Labor (DOL), which can take several months.  Although the DOL's approval or denial is given great weight, USCIS is not bound by the DOL's decision.  H-2B petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional $1000 fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.   Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

An employer that dismisses an H-2B worker before the end of the approved period of must pay the reasonable cost of the worker's transportation to his or her last city of residence.

 

 

H-3 Temporary Trainees

 

H-3 visas permit an individual to enter the U.S. to receive training that is not available in the individual's home country, and that will aid the individual in pursuing a career outside of the U.S.

 

H-3 trainees must not be placed in positions in which U.S. citizen and resident workers are regularly employed, and can only engage in productive employment if it is incidental and necessary to the training.

 

H-3 training programs must include the following elements:

• the kind of training to be given;

• the proportion of time that will be devoted to productive employment;

• the number of classroom instruction hours;

• the number of hours in on-the-job training, both supervised and unsupervised;

• the position for which the training will prepare the individual;

• the reason why the individual cannot obtain the trainee in his or her country of origin and why the training must be given in the u.s.;

• the reason why the training program is a benefit to the petitioning company; and

• the source of remuneration received by the trainee.

 

An employer that desires to sponsor an H-3 trainee must file a petition with U.S. Citizenship & Immigration Services (USCIS).  H-3 petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional $1000 fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.  Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

 

H-3 Duration

H-3 trainees are admitted for the length of the training program, up to two years.  No extension, change of status, or readmission will be granted unless the H-3 trainee has resided out of the U.S. for six months.  This rule does not apply if the training is seasonal, intermittent, or lasts for less than six months.