U.S. IMMIGRATION SYSTEM | NON-IMMIGRANT
Temporary, non-immigrant status provides foreign nationals with finite and limited periods of residence in the United States. Generally speaking, it is far less time-consuming and arduous to obtain temporary, non-immigrant visa status than it is to undergo the process leading to Permanent Residence. But the trade-off to this relatively short lead-time to obtain the visa is: 1) limitation on the time allowed to reside in the United States; and 2) limitations on the scope of authorized activity.
Types of Non-Immigrant Visa Status
The categories of nonimmigrant visas read like alphabet soup and are notated by a letter-number combination as appearing on the I-94 Arrival-Departure Card. The main types of temporary, nonimmigrant visas are:
- A: Diplomats and foreign government officials
- B: Visitors for business or pleasure (B-1/B-2 information)
- C: Transit visa
- D: Crewmen
- E: Treaty Traders and Investors (E-1 & E-2 information)
o E-1 Treaty Trader
o E-2 Treaty Investor
o E-3 Australian Professionals
- F: Students (academic) (F-1 information)
o Top 10 List of Facts for International Students
- H: Temporary Workers
o H-1B classification applies to a specialty occupation that requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires a Labor Condition Application issued by the Secretary of Labor. Numerical limits apply to H-1B for certain types of applicants. Spouse and child dependents of H-1Bs can maintain H-4 status. (more H-1B information)
o H-2B classification applies to nonagricultural work of a temporary, seasonal, or peak-load nature. This classification requires a temporary labor certification issued by the Secretary of Labor. Numerical limits apply to H-2B.
o H-3 classification applies to trainees other than medical or academic.
- I: Representatives of foreign media
- J: Exchange Program students, scholars, trainees, teachers, research assistants, medical graduates, etc. (J-1 information)
- K: Fiancees of U.S. citizens
- L: Intracompany transferees (L-1 information)
- M: Students (vocational) (M-1 information)
- N: Parents or children of an alien accorded Special Immigrant status\
- O: Individuals with extraordinary ability in the arts, sciences, business, athletics, movies, or television
o O-1 classification applies to a person who has extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field. Spouse and child dependents of O-1s can maintain O-3 status. (O-1 information)
o O-2 classification applies to a person accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance.
- P: Athletes and entertainers - highly qualified individuals / groups as well as accompanying group members
o P-1 classification applies to an individual or team athletes, or members of an entertainment group who are internationally recognized.
o P-2 classification applies to artists or entertainers who will perform under a reciprocal exchange program.
o P-3 classification applies to artists or entertainers who perform under a program that is culturally unique (same as P-1).
- Q: Participants in international cultural programs
- R: Religious workers
- S: Individuals coming to the U.S. to testify in a criminal proceeding
- TN: Canadians and Mexicans entering under the North American Free Trade Agreement (NAFTA). The TN classification is for Canadians and Mexicans entering as professionals and pursuant to a qualifying job offer from a U.S. employer. Their occupation must be listed on the schedule for NAFTA purposes.
Components of Application Process
There are four (4) basic components to temporary, nonimmigrant admission to the United States:
Component #1: The Petition Process
Given the incredibly wide variety of temporary, non-immigrant visa classifications covering so many different types of activities in the United States, it is not surprising that there is no single set application process. Some temporary, non-immigrant visa classifications require the filing of a petition to USCIS, essentially requesting approval that the intended activity conforms to a visa classification. In other instances, a foreign national needs to apply directly to a US consulate for a visa, authorizing travel to the United States for an intended purpose that again conforms to a designated visa classification. Yet in other instances, operating under the “visa waiver pilot program”, a foreign national can bypass any review at a US consulate and instead travel directly to the United States so as to apply for admission granted at the border by an official of Consular and Border Protection (CBP).
Component #2: The Visa Application Process
Most foreign nationals require visas to come to the United States. (There is an exception for foreign visitors qualifying under the Visa Waiver Program.) Under law, a foreign national requiring a visa needs to appear personally at a U.S. Consulate to make this application. At this point in time, it is vital for the foreign national to understand fully the underlying nature of the visa being requested, since he/she needs to show through the documentation presented and the verbal assertions being made that this particular application conforms with the visa being requested.
Most applications for temporary, nonimmigrant visa status require the applicant to establish the following points:
- That the stay is temporary;
- That there are sufficient funds to live on while visiting the United States (unless the nonimmigrant visa allows employment while in the United States); and
- That a residence abroad will be retained or that the applicant will depart the U.S. at the conclusion of his/her stay.
Component #3: The Admissions Process
Every time an alien appears at an airport or other port of entry in the United States, an inspection will be conducted by an officer of U.S. Customs and Border Protection (CBP) who will focus on the following:
- Whether or not the foreign national is an intending immigrant;
- Whether the foreign national’s intended purpose matches up with the activity authorized by the visa;
- Whether the foreign national is admissible into the United States.
If the CBP Officer is satisfied that the duration and purpose of the foreign national’s trip to the United States meets all the criteria for admission, an I-94 Arrival-Departure Card will be issued. This card should be retained in the passport. It essentially identifies two key elements of the authorized stay in the United States:
- The period of time authorized to the foreign national;
- The foreign national’s allowable activity in the United States.
Implicit here is the notion that a foreign national may be lawfully admitted, but may subsequently lose legal status either through violation of the activities that have been authorized or overstaying the duration of time that has been granted. In many instances, such violations not only raise the possibility of removal from the United States, but they can have potentially serious long-term consequences in such areas as: eligibility for permanent residence; validity of a visa; inadmissibility to the United States (perhaps for periods of 3/10 years); and restricting the foreign national to processing for future visas solely in his/her home country.
Component #4: Changing Status
A foreign national who is admitted to the United States under one type of nonimmigrant classification may change to another type of nonimmigrant status by making proper application to the USCIS. Also, the period of time allowed to stay here may under certain circumstances be extended for a good reason. In order to apply for an extension of stay in the United States, an extension request must be submitted to the USCIS.
Spouses and Children
If a foreign national obtains a temporary, non-immigrant visa, his/her spouse and dependent children are generally entitled to apply for derivative visas. This enables the entire family unit to reside in the United States. However, most derivative visa classifications do not provide the dependent with employment authorization. Certainly, the dependent in his/her own right could apply for employment authorized visa status. But the important point is that as long as they reside under derivative status, in most instances (most notable exceptions: dependents of L-1 and E-1/E-2 principals) they are not allowed to work and, indeed, the dependent’s employment would be unauthorized, thereby exposing the dependent to possible removal from the United States. |
