ABC’s of Nonimmigrant Visas

LITIGATION AND ADMINISTRATIVE PRACTICE SERIES

Litigation

Course Handbook Series Number H-1120

Basic Immigration Law

2019:

Business, Family, Naturalization and Related Areas

Chair

Cyrus D. Mehta

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17

ABC’s of Nonimmigrant Visas

Karin Wolman

Law Office of Karin Wolman PLLC

THE ALPHABET, REIMAGINED

  • A – Diplomats & Foreign Officials
  • B – Visitors
  • C – Transit
  • D – Crewmen
  • E – Treaty Traders, Treaty Investors & Australian professionals
  • F – Students
  • G – Employees of International Organizations
  • H – Temporary Workers
  • I – Foreign Media Representatives
  • J – Exchange: Scholars, Trainees, Teachers
  • K – 90-Day Fiancee
  • L – IntraCompany Transferees
  • M – Vocational Students
  • N – Parents or children of certain Special Immigrants
  • NATO – NATO Employees
  • 0 -Aliens of Extraordinary Ability
  • P – athletes, entertainment groups & performers
  • Q – Reciprocal cultural exchange
  • R – Religious workers
  • S – Federal witnesses
  • T – Trafficking victims
  • TN – NAFTA professionals
  • U – Certain crime victims
  • V – Family awaiting green cards – Defunct

While the alphabet of nonimmigrant (temporary) visas includes a wide variety of options, there are many situations for which there is no applicable temporary visa to come to the United States. Identifying those gaps in the menu requires a detailed understanding of what options exist within the present statutory and regulatory scheme, under INA§101(a)(15); also at 8 USC §101(a)(15), and 8 CFR §214.2. For practical purposes, it is helpful to group the existing nonimmigrant visa categories according to their main similarities and common requirements. However, those new to immigration practice must first learn some basic distinctions, such as how to tell a visa from visa status in the United States, and how to identify the status documents associated with each nonimmigrant visa category.

WHAT’S THE DIFFERENCE BETWEEN A VISA AND VISA STATUS?

A visa is a secure, photo-identified entry document (Machine Readable Visa stamp, or “MRV”) issued into a valid passport by a US Embassy or Consulate abroad. A visa permits and facilitates the traveler’s entry into the United States in the specified classification when presented at a Port of Entry (an airport, sea port, or land border) or a Pre-Flight Inspection station to an Inspections Officer of US Customs & Border Protection (“CBP”). A visa is only an entry document, not a status document.

A foreign national who is present in the United States in valid nonimmigrant visa status may or may not have a corresponding visa in the passport, because visa status can be obtained in one of two ways: either upon admission by CBP based on a valid visa stamp presented for inspection, or, upon approval of a request for change of status by US Citizen­ship and Immigration Services (“USCIS”), after admission in another status. The foreign national’s status and authorized period of stay in that status are indicated on either the I-94, an electronic record issued by CBP at time of admission, which can be retrieved online after admission at https://i94.cbp.dhs.gov, or by the “replacement I-94″ on a Form I-797A Notice of Approval of a request to extend or change status, a paper docu­ment issued by USCIS.

While CBP and USCIS are both part of the Department of Homeland Security, and each agency has access to some of the other’s databases, those two types of I-94 status documents are not maintained in a single, common database. Errors and omissions abound. When a foreign national lawfully admitted in one status has their status changed by USCIS to another nonimmigrant status with a later end date, that information is reflected in a USCIS database, but is not in the CBP electronic I-94 database. Since the demise of paper I-94s issued at Port of Entry and advent of the electronic I-94 in April 2013, when it became impossible for travelers to double-check their I-94s for correctness in real time, while still in front of the inspecting officer at a Port of Entry, it has become apparent not only that CBP officers make frequent individual errors, but also that there are systemic sources of error, such as automatic uploading of airline flight manifests – so the ”travel history” record of entries and exits shown in the CBP database sometimes indicates arrivals or departures that never happened, based on flights the traveler had booked and confirmed, but never boarded.

AUTHORIZED PERIOD OF STAY

What defines the authorized period of stay on an I-94? This is where the interpretation of nonimmigrant visa status documents can get quite com­plicated. The rules vary considerably by visa category, as the period of authorized stay can be limited or defined by many different factors, such as:

  • Visitors:
    • a maximum of 6 months, if visitor presents a valid B-1/B-2 visa, or
    • a maximum of 90 days, for visitors under the Visa Waiver Program (ESTA).

In either case, the period of admission may be less than the maxi­mum allowed, if the inspecting officer believes a shorter stay is warranted: length of stay authorized should be commensurate with the stated purpose of the visit.

  • Validity of Passport: CBP may admit travelers for the full validity period of a work visa petition even if the passport will expire sooner, but they have discretion to limit stay to the passport end date. Recently, CBP has exercised their discretion less generously, to admit travelers only until the passport expiry date. Travelers with a valid visa in a soon-to-expire passport may want to also carry their new passport that has longer validity. The inspector may make a hand­ written annotation in the new passport upon admission, stating “VIOPP” (visa in other passport).
  • Validity of the Visa Petition: In petition-based work visa categories, the petition end date signifies when work authorization will end, and is usually coterminous with the ending validity date of the visa stamp. A foreign worker in H, L, 0, P, or R visa status should generally be admitted until the petition end date.
  • Regulation: some visas result in a fixed period of stay counted from admission.
    • E treaty visa holders are admitted for two years from the date of admission.
    • K-1 fiance(e)s are admitted for 90 days from date of admission.
    • T and U visa principals are admitted for four years from date of admission; T and U derivatives are only admitted until the principal’s status expiration date
  • Validity of Secondary Status document: F-1 and M-1 Students, J-1 Scholars & other Exchange Visitors, as well as A, G & NATO dip­lomats, foreign officials or delegates, and I representatives of foreign information media are admitted not until a specified date, but for Duration of Status (“D/S”). The duration of their status is in tum defined by a secondary document, such as Form 1-20 or DS-2019, a diplomatic note, or an employment contract with an international organization.
  • Reciprocity Schedule and Country of Citizenship: The Department of State maintains a Visa Reciprocity Schedule to ensure that foreign nationals who come to the United States are admitted commensurate with how that home country treats similar US travelers. For example, citizens of the People’s Republic of China who have an approved H-1B petition by a U.S. employer that is valid for three years can only get a US visa stamp valid for one year. An athlete from Brazil with an approved five year P-1 petition, or an artist from Brazil with a valid three-year 0-1 petition, can only get a matching visa stamp valid for three months and a single entry. An artist from Nigeria with a three-year 0-1 petition can get a visa valid for two years. Always check the reciprocity schedule.

B-1, B-2 & VISITORS WITHOUT VISAS UNDER THE VISA WAIVER PROGRAM

All types of visitors have certain requirements in common, including intent to return to an unabandoned permanent residence abroad; a lawful, temporary and finite purpose for each visit (lawful in this context does not include plans to work, marry a US citizen or permanent resident, or remain here indefinitely); and sufficient funds to accomplish the purpose of the visit.

All visitors are subject to INA §214(b), which creates a presumption of immigrant intent, then gives the visitor opportunity to prove their intentions are temporary and lawful, and that they have sufficient ties to the home country to make timely return probable.

Visitors who apply for a visa must prove their nonimmigrant intent first to an interviewing consular officer at the U.S. Embassy or Consulate to obtain the visa, and then again to the CBP Inspections officer at a port of entry upon each visit.

The Foreign Affairs Manual policy rule about changes of intention after admission as a visitor was updated in March 2018. Now found at 9 FAM 302.9(g)(2)(a), the rule presumes that visitors materially misrepresented their intent at the time of admission if, at any time within 90 days after entry, they engage in conduct inconsistent with the purpose for which they were admitted.

  • Generally permissible activities of visitors for pleasure are outlined at 9 FAM 402.2-4(A), and permissible activities of visitors for business are outlined at 9 FAM 402.2-5.
  • The Visa Waiver Program, whose rules are described at 8 CFR §217, currently includes 38 countries: The traveler must have a valid passport issued by one of those countries, and a valid ESTA (Elec­tronic System for Travel Authorization) prior to boarding. VWP visitors waive the right to seek any extension or change of status in the United States, and the right to appear before an Immigration Judge. Individuals who have previously overstayed a period of lawful admission or had a U.S. visa application denied are ineligible for the Visa Waiver Program.

DIPLOMATS, FOREIGN OFFICIALS & EMPLOYEES OF INTERNATIONAL ORGANIZATIONS

The A, G and NATO visas are for diplomats, representatives or delegates, and employees of foreign governments or international organizations coming to perform assigned official functions in the U.S., whether at an Embassy or Consulate of the home country, or at an international organ­ization with offices in the U.S., such as the United Nations, World Health Organization, Inter-American Development Bank, or NATO. They require a “diplomatic note” from the sending home country or an employment contract with an international organization, but no petition. Visas in each of these categories normally result in admission for Duration of Status.

  • A-1: Heads of State, Ministers, Cabinet members, Ambassadors, Consuls
  • EU & AU Delegates
  • A-2: Full-time foreign government employees assigned to a mission, consulate, embassy or military base in U.S., on official business
  • A-3: Personal employees of A-1 or A-2

All A visa holders need a “Diplomatic Note” from the sending country. Certain A-1 and A-2 dependents may apply for employment authorization, if permission to work is provided to similarly situated U.S. citizens in their home country, pursuant to a formal bilateral agreement or de facto reciprocal arrangement.

  • G-1: Principal Representative of Member Government
  • G-2: Other Representative of Member Government
  • G-3: Representative of a Non-Member State or Unrecognized Government
  • G-4: Officers & Employees of the Organization
  • G-5: Attendants, Personal Employees, Servants
  • NATO-1 through 5 visas are analogous to G visa for employees of international organizations, but the organization is NATO

All A, G and NATO visa holders are admitted for Duration of Status, and the underlying period of authorized stay is based on a diplomatic note or employment contract. Spouses and children get the same visa status as the principal. Some A and G spouses are eligible to apply for work authorization if there is a bilateral agreement in place, but they remain ineligible to change status to any other nonimmigrant visa status so long as they remain classifiable in A or G status, per 22 CFR §41.22(b) and §41.24(b).

TRANSIT & CREWMEN

C and D visas offer very limited admissions for people transiting through the U.S, or employed by a common carrier, or as paid crew on a non­ U.S.-flagged vessel.

C-1 visas permit transit through the United States to another destination country, authorizing admission for 29 days, with the obligation to show a confirmed ticket or prove assured passage on a departing ship or flight.

D visas are issued to crewmen employed on a foreign-flagged ship or airline, authorizing admission for 29 days, with the obligation to show assured passage on a departing ship or flight. Much less common are the C-2 and C-3 transit visas for UN dignitaries and foreign government officials, which also have the 29-day and no change or extension of stay limitations.

Travelers in both categories are barred by law from applying to extend stay, change status, or adjust status to permanent resident. They are commonly issued a visa stamp marked “C-1/D.”

E TREATY VISAS

The E visas are for certain classes of temporary workers, based on treaties of friendship, commerce and navigation enacted to support international trade between the United States and the worker’s home country. The E visas are sought directly at a U.S. Embassy or Consulate abroad, by principals or employees of the treaty company. Even if a petition for change of status to E-1, E-2 or E-3 is filed in the US, it carries no weight with a consular post, which will still treat the visa application as de novo.

  • E-1 Treaty Traders:

Principal Treaty Trader must be coming to develop and direct a US enterprise to carry on substantial trade, principally between the US and the treaty country (more than 50% of the company’s total inter­ national trade volume).

  • E-2 Treaty Investors:

Principal E-2 Treaty Investor must be coming to develop and direct a US enterprise, based on substantial capital invested irrevocably in an active, operating U.S. business.

For E-1 and E-2 visas, the U.S. business must share the treaty nation­ality of the worker, but “nationality” for E visa purposes is different than in most other areas of immigration law: here, it means citizenship, not country of birth. For the U.S. treaty company, nationality means the nationality of its individual owners, or the country of the stock exchange on which its shares are principally traded.

Both E-1 Treaty Trader and E-2 Treaty Investor visas may be issued either to an owner/officer of the company, coming as the E-1 or E-2 principal, to develop and direct the activities of the U.S. enterprise, or to employees of the treaty company, coming to work in either a managerial or executive capacity, or in an essential specialized knowledge capacity.

E-3 Australian Treaty Professionals share only a few of these traits: the foreign worker must be a citizen of Australia, but the employing US company need not share treaty nationality. Except for the lack of a petition to USCIS and requirement of nonimmigrant intent, the E-3 visa is more similar to an H-1B than to the other E visas: the offered job must be in a professional specialty occupation, the employer must file a Labor Condi­tion Application (“LCA”) which must be certified by the Department of Labor, offering to pay at least the prevailing wage as salary, and the E-3 worker must have a Bachelor’s or high degree directly related to the duties of the offered professional position. While it is possible to change status to E-3 in the United States, this can take many months, as the E-3 category is ineligible for Premium processing.

All E-1, E-2 and E-3 spouses are eligible to apply for unrestricted work authorization. E visa holders and their dependents are granted I-94s authorizing a period of stay for two years from date of admission. This can create problems for inattentive workers in E-3 status, as the validity of the I-94 may extend considerably past the end date of the underlying certified LCA, and for spouses and children who travel less than the E principal worker, whose I-94s will expire sooner.

STUDENTS & SCHOLARS

F-1 academic students coming to attend a private high school or college and J-1 Exchange Visitors (including graduate students, visiting scholars, postdoctoral research fellows), are admitted for Duration of Status, the length of which is defined in turn by their Forms I-20 or DS-2019, issued by the sponsoring institution in which they enroll. The Form I-20 or DS-2019 describes the terms of the particular approved academic or training program in which the student has enrolled. M-1 vocational technology or business students are admitted until a fixed date, normally the length of the approved course of study on Form I-20M-N, plus any authorized prac­tical training (granted in increments of one month per each four months of M-1 study), plus a grace period of 30 days, if the student maintains valid status in accordance with the I-20.

In the wake of 9/11, all F, J & M students’ compliance with the terms of their approved visa status is monitored by Immigration and Customs Enforcement (ICE) via the Student and Exchange Visitor Information System (“SEVIS”). Students and scholars seeking visas in the F, J & M visa categories must demonstrate nonimmigrant intent, show sufficient financial support to maintain their studies with full-time enrollment, and they must file a Form I-901 and pay a registration fee to register for inclusion in the SEVIS database, which monitors maintenance of valid visa status for those present in F, J & M visa status.

Individuals in these categories are generally admitted for Duration of Status (“D/S”), except for M-1 vocational students. However, a 2018 USCIS policy memo which became effective on August 9, 2018 confuses F, J and M status violations with unlawful presence, and may retroactively impact conduct the student engaged in prior to the effective date of the memorandum. [*Enforcement of this memorandum is temporarily enjoined, pending litigation.]

  • F-1 course of study may authorize Optional Practical Training after degree completion/J-1 course of graduate study may authorize Academic Training
  • Grace Periods: F-1 60 days/J-1 30 days/M-1 30 days

*Grace period is unavailable to those who fall out of status

The J-1 Exchange Visitor category includes much more than gradu­ate students:

  • Students & Research Scholars, Medical Interns & Residents
  • Teachers, Au Pairs, Summer Work-Study
  • Interns & Trainees in private sector, for students & recent graduates of schools abroad
  • Sponsor organization must be accredited by Department of State in order to issue Form DS-2019
  • May entail 2-year Foreign Residence Requirement under INA 212(e), based on:
    -Graduate Medical Training  -Government Funding  -Exchange Visitor Skills List

H-1B PROFESSIONALS

The offered H-1B job must qualify as a professional specialty occupation, which is one that normally requires a bachelor’s or higher degree in a specific academic specialty directly related to the job duties, as a minimum requirement for entry level employment in the occupation.

The foreign worker must have the required academic credentials or equivalent full-time work experience at a ratio of 3:1, i.e three years of work experience equivalent to one year of college-level study. The worker must have earned the degree necessary to perform the job by no later than the petition filing date, as well as a state license where the job is located, if the occupation requires a license.

The employer must notify its US workers of the wages and working conditions of the offered H1B job, and must offer the foreign worker a salary that is at least equivalent to the local prevailing wage for that occu­pation in the geographic area of intended employment. The attestation affirming these particulars is called the Labor Condition Application (Form ETA 9035) which must be filed with and certified by the US Department of Labor before an H-1B petition can be filed.

There is an annual numerical limit on these visas, known as “the H­-1B Cap,” which is 65,000 for the regular cap, plus an additional 20,000 set aside for those with Master’s or higher graduate degrees from an accredited, non-profit US college or university (the “US Master’s cap”).

A petition may be filed 180 days in advance of the requested start date, and the federal fiscal year begins on October 1, so the annual filing period for numerically-limited H-1B visas begins in the first week of April every year. The number of petitions filed in that first week of April more than exceeds the entire annual quota of 85,000, so USCIS subjects all new H-1B petitions received during that week to a two-part random selection lottery. To date, they have first selected 20,000 cases eligible for the “US Master’s cap,” and then selected those for the regular cap. [This procedure was reversed for FY2020]

As of November 30, 2018, USCIS announced a proposed free, online pre-registration process, which an employer would have to complete at least two weeks prior to filing an H-1B petition for a named beneficiary, providing identifying information about the employer, the offered job, and the sponsored worker. This proposed process would reverse the H-1B cap lottery order, selecting regular cap cases first, then those with US Master’s degrees. USCIS claims the proposed rule will ensure that “more meritori­ous” cases are selected.

Spouses and minor children may accompany an H-1B worker in H-4 dependent status. Spouses may not apply for employment authorization until the H-1B principal is the beneficiary of an approved immigrant visa petition, but H-4 spouses and children may attend school. H-1B status allows “Dual Intent,” i.e. it is temporary, but compatible with seeking per­manent residence. H-1B status is granted in increments of three years, for a maximum consecutive stay of six years

H-1B1

There is also a closely-related treaty visa called the “H-1B1,” for nationals of Chile & Singapore. The substantive requirements for the job offer in a professional specialty occupation, the worker possessing the relevant higher education for that job, and the employer filing an LCA and paying the prevailing wage as salary are largely identical to the H-1B requirements. However, the H-1B1 is granted in increments of only two years, and requires continued nonimmigrant intent. The worker may apply directly at a US Embassy, without a petition to USCIS, based on presentation of a certified LCA, offer letter from the US employer, and the worker’s credentials.

THE LABOR CONDITION APPLICATION

The Form ETA 9035 Labor Condition Application is an underlying require­ment of the E-3, H-1B and H-1B1 categories, governed by the labor regulations at 20 CFR §655, and was last revised on November 26, 2018.

  1. Employer must post notice of job title, prevailing wage and offered wage, worksite address locations, dates of employment requested, and whether worker will be placed at any third-party worksites.
  2. Application is filed electronically, gets certified within 7 days
  3. Department of Labor oversees enforcement
  • H-1B petition requires certified LCA, as do visa applications for E-3 and H-1B1- “Approvable when filed”
  • Period of Admission-H-1B: 3 years, 6 year maximum

E-3: 2 years; H- 1B1: 2 years – These have no set maximum stay, but require continued showing of nonimmigrant intent.

Under the American Competitiveness in the 21st Century Act (known as “AC21”), there is an exception to the 6-year maximum consecutive stay allowed in H- lB status, if an employer has filed application for per­manent alien labor certification (ETA 9089, or “PERM”) on behalf of the worker before end of that worker’s fifth year in H-1B status.

H-2B TEMPORARY WORKERS

There are four types of H-2B Workers, all of which are explicitly tempo­rary and require continued nonimmigrant intent, and which result in admis­ sion for a maximum of one year:

  1. One-Time Need
  2. Seasonal, recurrent
  3. Intermittent
  4. PeakLoad

Like the H-1B, the H-2B category has a statutory annual cap, in this case 66,000, but unlike the H-1B, the quota is split in half and the cap is reached twice a year, so there are two periods when H-2B petitions can be filed. Petitions may be filed no more than 120 days in advance of the validity period requested, but the employer must first file an application for temporary labor certification with the USDOL (Form 9142B) to show recruitment efforts and unavailability of US workers. An H-2B employer must pay a wage that is the highest of the prevailing wage, or the Federal, State, or local minimum wage for the occupation.

H-3 TRAINEES

The H-3 Trainee program can accommodate those who need training in the United States but who are not current students or recent graduates of foreign schools, and are therefore ineligible for a J-1 training program. It requires a petition to USCIS, best suited to larger organizations with a well-structured, supervised training program that will rotate participants through multiple departments, and a plausible rationale for providing train­ing to those who will utilize it abroad. An H-3 cannot be used to recruit or staff any positions needed to operate the day-to-day business of the U.S. organization, and its purpose is not primarily to provide services, but to provide a formal training program, unavailable in the trainee’s home country, which will further the worker’s career abroad.

  • The training program must have a detailed schedule, listing week­ by-week topics covered, designated supervisor(s), & formal means of progress evaluation during and at end of the training.
  • It must specify the hours & location(s) of any classroom instruction and any hands-on employment-based training in a workplace setting.
  • Maximum stay of 2 years

I – FOREIGN INFORMATION MEDIA REPRESENTATIVES

The I visa is for representatives of a foreign information media organization with its home office abroad. An I visa requires no petition, but cannot be used for entertainment or “infotainment” media workers. Regardless of whether the distribution medium is print, television, radio or online, substantive content must be limited to news and documentary program­ming. Journalistic information and documentary programming is allowed; re-enactment is not; “reality TV” is not; first-hand accounts of personal experience are not. See 9 FAM 402.11-3 for limitations on content.

The content produced by I media workers in the U.S. must be primarily distributed, broadcast or published abroad. In the age of streaming multi­-lingual websites, the question may arise, what does it mean to be distributed abroad? Where the work product will be disseminated on the Internet, it is increasingly important to show that content is published on the sponsoring organization’s primary website hosted outside the United States, especially if the content is available in English. The application of the home office in a foreign country requirement to new media and bloggers is specifically discussed at 9 FAM 402.11-10

  • Requires a contract of employment & valid press credential
  • Admission: D/S, based on contract term, up to 5 years at a time.

A potential trap for the unwary is that the Foreign Affairs Manual refers to bloggers and other self-employed media workers as “freelance,” which gives the false impression that they may also produce content for U.S. publishers while present under I visa status, and not just produce work under contract for a foreign media organization based abroad: they are not authorized to freelance for U.S. employers, as that would be considered a status violation.

K-1 90-DAY FIANCEES

The K visa is a hybrid, technically a nonimmigrant visa, but it explicitly contemplates immigrant intent, since the beneficiary must intend to marry the US citizen petitioner and remain in the United States indefinitely.

  • US citizen must file petition to USCIS with extensive proof of bona fide relationship
  • Visa application has some elements of immigrant process (requires a medical exam, 1-134 affidavit of support, but both must be redone in the US to adjust status)
  • Petition is valid for 4 months, visa is issued for 6 months but single entry, period of stay is 90 days from admission. K-1 must marry US citizen petitioner within 90 days of entry.
  • If the K-1 beneficiary does not marry the US petitioner, he or she is barred by law from applying for change of status, extension of stay, or Adjustment of Status to permanent resident on any other basis.

L-1 lNTRACOMPANY TRANSFEREES

The L-1 visa for intracompany transferees allows multinational organiza­tions to move key personnel to a U.S. parent, subsidiary, branch office, or affiliated entity. It is available to those who have worked for a multinational abroad for at least one year, full time, within the three years prior to admission to the United States, who are coming to work for either a branch office of the same legal entity or for a U.S. company that is the parent, subsidiary, or affiliated entity under the same ownership and control as the company abroad where the worker obtained the qualifying experience. Both the qualifying experience abroad and the offered position in the United States must be in a position that is executive, managerial, or requires specialized knowledge not generally available in the U.S. labor market, not widely available within the company, and which cannot be reasonably acquired by a short period of training.

A manager manages the organization, or a department, subdivision or function of the organization; supervises and controls the work of other managerial, supervisory or professional employees; has hire & fire authority, as well as authority to set salary and approve leave and promotion, or, if no employees are directly supervised, functions at a senior level within the organizational hierarchy; exercises discretion over day-to-day opera­tions. A first-line supervisor of non-professional employees is not consid­ered a manager. A function manager must at least indirectly supervise others: it is axiomatic that a manager cannot personally perform the function he or she is supposed to manage.

An executive directs the management of the entire organization, or one of its major components or functions; establishes organizational goals, policies and practices; exercises a wide latitude in discretionary decision­ making; and receives only general supervision from higher-level executives, or from the organization’s board of directors and/or shareholders.

A USCIS policy memorandum of November 15, 2018 clarifies that the worker must be physically outside the United States during the qualifying year of employment abroad, except for brief trips, and must meet the one-year experience requirement as of the filing date of the initial L-1 petition.

  • L- lA Multinational Managers or Executives – 7 year maximum stay

No first-line supervisors: the L-1 must manage professionals, sub­ordinate managers, or a key function of the organization

  • L-lB Specialized Knowledge – 5 year maximum stay

Requires specialized knowledge and skills not generally available in US market, nor widely held within the company USCIS policy memo of Aug. 17, 2015 defines L-1B specialized knowledge

L-2 spouses apply for employment authorization, and all L-1 & L-2 status allows “Dual Intent,” i.e. it is temporary, but compatible with seeking permanent residence.

For large multinational organizations engaged in commercial trade or services with annual sales of over $25 million or over 1,000 employees, and at least three domestic and foreign entities, if the U.S. petitioning entity has been doing business for over one year, and has obtained approval of 10 or more L-1 petitions in the preceding 12 months, then there is a process called the L-1 “Blanket” petition. An L-1 blanket petition may be filed with USCIS by a U.S. parent, subsidiary, affiliate or branch of the multinational company, with a list of all the domestic and foreign entities and proof of how they are related, and once it is approved, individuals from those foreign entities may be transferred to the U.S. entity by applying directly at a U.S. Embassy or Consulate, with Form 1-129S and a letter describing the worker’s qualifying employment abroad and the offered position in the United States.

O-1 ALIENS OF EXTRAORDINARY ABILITY

The O-1 is a temporary work visa for “aliens of extraordinary ability,” available to accomplished people who work at the very top of their field of endeavor in the sciences, business, education and athletics (O-1A); who have demonstrated extraordinary achievement in motion pictures and television (O-1B); or who have a record of distinction in the arts (O-1B). Note that the legal standards for the two groups of O-1B visas are different: the threshold is higher for film and television. In practice, the O-1 visa can cover almost any field of endeavor, so long as it is possible to provide three or more types of evidence that the individual is and has been widely recognized for professional accomplishments outside of their own employers.

The O-1A requires proof that the beneficiary has individually received a major internationally recognized award, or at least three of –

  1. prizes or awards for excellence in the field of endeavor;
  2. Membership in associations which require outstanding achieve­ments of their members;
  3. Published material in trade publications or major media about the alien, relating to the alien’s work in the field;
  4. Evidence of participation as a judge of the work of others in the same field or an allied field;
  5. Evidence of the alien’s original scientific, scholarly or business­ related contributions of major significance to the field of endeavor;
  6. Authorship of scholarly articles in professional journals, or articles by the alien in major media;
  7. Evidence that the alien has been employed in a critical or essential capacity for organizations that have a distinguished reputation;
  8. Evidence that the alien has commanded a high salary or other remuneration for services.

The O-1B requires proof that the beneficiary has individually received a major internationally recognized award, or at least three of-

  1. Evidence that the alien has performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation;
  2. Evidence that the alien has achieved national or international recog­nition for achievements;
  3. Evidence that the alien has performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;
  4. Evidence that the alien has a record of major commercial or criti­cally acclaimed successes;
  5. Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field;
  6. Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for ser­vices in relation to others in the field.

Beyond evidence of the beneficiary’s extraordinary ability, the O-1 requires a petition to USCIS by either a U.S. employer or agent, contrac­tual proof of the work offered, an itinerary of confirmed engagements if there is more than one employer or worksite location, and peer advisory consultation from a labor union or other U.S. peer group or expert.

  • Contracts or deal memos:

What type of work is offered, when & where will the work be performed, how & how much will the O-1 get paid?

Agent petitioner = Agency contract+ Itinerary + end-client contracts

  • Labor Union/Peer Group advisory consultation

A new O-1 petition can be granted for a validity period of up to three years; extensions of status with the same petition can be granted for one year. There is no maximum stay. An O-3 spouse and minor children may accompany the 0-1 principal, but cannot work.

The petitioner must file a separate visa petition for any O-2 essential support workers, with proof of the history of their working relationship with the O-1, and proof of essentiality to the offered work in the United States.

P VISAS: ATHLETES & PERFORMERS

The P-1 category includes P-lA internationally recognized athletes, coming to compete in an individual sport or as part of a team, which are granted for up to 5 years, and P-1B performing artists in an internationally recognized entertainment group, which can be granted for up to one year. At least 75% of the entertainment group must have been performing together for one year or more. Both athletes and artists need to provide evi­dence of their international recognition.

The P-2 reciprocal exchange visa is for short-term contract perfor­mances arranged by a US labor union on behalf of members of its foreign counterpart, such as Actor’s Equity or the American Federation of Musicians.

The P-3 is for either an individual or a group coming to perform, coach or teach in a culturally unique art form or discipline, and may be granted for up to one year. All the P visas require copies of contracts, but the contracts need not be fully executed. Both P-1 and P-3 petitions for entertainment groups require a separate petition for accompanying sup­port personnel.

Q INTERNATIONAL CULTURAL EXCHANGE

Known informally as the “EPCOT” visa, the Q visa for reciprocal cultural exchange was created essentially as a vehicle for Disney. The U.S. work opportunity must be sited in a school, museum, or business offering public access to cultural programs that teach U.S. audiences about the culture of the worker’s home country. The cultural offering must correspond to a cul­tural exchange program opportunity for U.S. travelers in the sending coun­try. Q-1 status allows no other employment or training independent of the cultural component, and requires continued nonimmigrant intent. It is based on a petition to USCIS, and can be granted for a maximum of 15 months.

R-1 RELIGIOUS WORKERS

The R-1 temporary religious worker visa requires a petition to USCIS by a sponsoring U.S. 501(c)(3) non-profit religious organization that will be the employer, an offer of paid work as a minister of religion (ordained to conduct service of worship; i.e. priest, rabbi, imam), or in a religious vocation (nun, monk), or in a religious occupation (e.g., cantor, deacon). The petition must include evidence that the foreign worker has been an active member of the same religious denomination for at least two years prior to filing of the petition, and is otherwise qualified for the position. R-1 petitions are ineligible for Premium processing until the petitioning organization has had a site visit by USCIS. The R-1 visa applicant must show nonimmigrant intent. Petition validity maximum is 3 years, total con­secutive stay allowed in R-1 status is 5 yrs.

S IS FOR SNITCH: WITNESSES & INFORMANTS

The S visa is for a foreign national who possesses critical and reliable information about a criminal organization or enterprise, who is willing to supply that information to a federal or state Law Enforcement Agency (“LEA”), and who is actively cooperating with that LEA in a way that is essential to the success of an ongoing investigation. To become eligible to file such a petition, the LEA must file a Form I-854 request with the Depart­ment of Justice, where an Assistant Attorney General must certify it.

  • S-5 relates to criminal witnesses: annual cap is 200
  • S-6 relates to terrorist witnesses: annual cap is 50
  • Maximum validity of three years.

TN-1 NAFTA PROFESSIONALS

As of this writing, there have been several explicit threats that the President would withdraw the United States from the North American Free Trade Agreement, so by the time of publication it is unclear what the status of NAFTA and the TN visa category will be. To date, the TN is available to Canadian and Mexican citizens: Canadian citizens are visa-exempt, but Mexican citizens require a visa stamp. NAFTA is currently still in effect, but has been renegotiated as the US-Mexico-Canada-Agreement, not effec­tive until 2020, but all 64 job categories will remain the same.

  • A U.S. employer has offered the worker a job in one of the 64 job titles listed in the treaty, at NAFTA Ch. 16, Appendix D, also at 8 CFR §214.6
  • Worker has the appropriate degree for that profession, as listed in the treaty, and presents original educational credentials for inspection
  • TN status is approved in increments of l to 3 years, renewable
  • Requires continued nonimmigrant intent

T – TRAFFICKING VICTIMS

T applicants make a personal statement with supporting evidence and a Form I-914B, signed Declaration of Law Enforcement Officer, to show that the applicant is victim of human trafficking; is present in the U.S. as a result of the trafficking; has complied with reasonable requests from the Law Enforcement Agency; and would suffer extreme hardship involving severe and unusual harm if removed.

Adults must show 1 element from each substantive group of evidence, kids need only 1:

  • Process: recruitment, transportation, transfer, harboring, receipt
  • Ways & Means: threat, coercion, abduction, fraud, deceit, abuse of power
  • Goals: prostitution, pornography, violence, exploitation, forced labor, involuntary servitude, debt bondage, slavery

There is an annual cap of 5,000 on T visas.

U – VICTIMS OF CERTAIN CRIMES

U applicants make a personal statement with supporting evidence and a Form 918, Supplement B, signed Certification of Law Enforcement Agency, attesting that the applicant has been the victim of a crime in the United States; has cooperated with a Law Enforcement Agency; and has suffered mental or physical harm as result of the crime.

A certified Form 918-B is only valid for 6 months, but if the petition is approved, U status is valid for 4 years. There is an annual cap of 10,000 on U visas.

V IS… DEFUNCT

The V visa provided family reunification for spouses and minor children of Lawful Permanent Residents in the F2A Second Preference category, whose immigrant visa petitions were filed before Dec. 21, 2000, and who had waited at least 3 years and an immigrant visa still was not yet available to them.

The statute has not been amended with a later threshold date in the ensuing 18 years, to accommodate other people waiting in the current F2A backlog, so this category is essentially a dead letter. It could be revived if Congress cared to act.

This article does not attempt to chronicle how USCIS currently treats each of the evidentiary criteria under every nonimmigrant visa category, as such a review is well beyond the scope of a general introduction to nonimmigrant visas.

© 2019 Practising Law Institute

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