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Please note that the information contained at this web site is for general informational purposes only and is not comprehensive. You should discuss the specific facts of your case with an attorney who practices immigration law.
Foreign Government Officials
Foreign government officials or employees of foreign government officials are classified as non-immigrants in the A category. The A-1 subcategory is reserved for officers of permanent diplomatic missions or consular posts in the United States and visiting high-level officials of a foreign state. The A-2 subcategory is reserved for other accredited officials and employees of a foreign government, including consular employees. The A-3 subcategory covers personal employees of aliens in the A-1 and A-2 categories. Family members of an A-1, A-2, or A-3 alien are included in the same A subcategory as the principal alien.
A-1 and A-2 visa holders are admitted to the United States for an indefinite period of stay, dependent on their continued recognition by the State Department as qualified A nonimmigrants. A-3 visa holder are admitted to the United States for a period of no more than three years, and can receive extensions of stay in two-year increments.
Temporary Visitors for Business or Pleasure
Foreign visitors for business and pleasure are classified as nonimmigrants in the B category. The applicant must be coming to the United States temporarily, must have a foreign residence that he or she has no intention of abandoning, and must not work or act as a representative of the foreign media. The B visa applicant must not come to the United States to study, although some study incident to a legitimate visit to the United States is permissible.
The B category is comprised of two subcategories: B-1 business visitors and B-2 visitors for pleasure. B-1 business visitors may engage in commercial transactions but may not receive a salary or fee from a U.S. source. B-2 visitors may travel to the United States as tourists, to visit to friends and relatives, for medical treatment, to take part in conferences or conventions, or as amateur athletes, musicians, or artists who will receive no compensation.
Treaty Merchant, Treaty Investor
Citizens of countries with treaties allowing for trade and/or investment with the United States may be eligible to enter the United States on an E visa. Treaty trader status, designated by the E-1 subcategory, enables a foreign national to work for a business engaged in substantial trade principally between the United States and the treaty country, provided the company is majority-owned by treaty nationals. The foreign national must be employed in a supervisory or executive position or one involving skills essential to the operation of the business.
Treaty investor status, designated by the E-2 subcategory, requires that the investment enterprise be at least fifty percent owned by nationals of the treaty country, and that the E-2 visa holder be a national of that country. The primary treaty alien must have control of, or direct and develop, the business. The employee treaty alien must be filling a supervisory or executive capacity or one requiring a highly trained and specially qualified technical employee. The investment must be active, must involve funds and assets for which the investor is personally at risk, and must be substantial measured by the amount actually invested in proportion to the total value of the enterprise or to the starting cost of the enterprise. Also, the enterprise must generate sufficient revenues to employ U.S. workers.
The E visa holder may remain in the United States indefinitely, as long as the trade or investment venture continues to qualify for treaty classification and the alien continues to maintain valid status.
Students
Foreign nationals seeking to enter the United States to engage in a full course of academic study may be admitted in the F-1 category. Students may also enter the United States to study with a J visa if the educational institution has an exchange visitor program approved by the U.S. Information Agency. Vocational students must enter the United States in the M nonimmigrant category.
In order to qualify for F student status, the applicant must: be enrolled in a full-course of study at an educational institution approved by the Attorney General for attendance by foreign students; be proficient in English or enrolled in courses leading to English proficiency; have sufficient funds available to cover study and living expenses; and maintain a residence abroad which he or she has no intention of abandoning. The first step in applying for an F-1 visa is to secure admission to a qualifying school and to receive from the school Form I-20A-B, Certificate of Eligibility. Students in F-1 status are eligible for employment only in limited circumstances, which should be explored either with an international student advisor at the educational institution or with an immigration attorney. Accompanying family members are accorded F-2 status and are ineligible for employment in the United States.
International Organization Representatives and Employees
The G category is available to representatives and employees of international organizations covered by the International Organizations Immunity Act, as well as the attendants and household help of the representatives and employees.
The G-1 subcategory covers the principal resident representative of a foreign government, including staff members of the representative. G-1 visa holders are assigned on a resident basis to the international organization.
The G-2 subcategory is set aside for other accredited representatives of a foreign government. G-2 visa holders are assigned as part of a temporary delegation.
The G-3 subcategory is used by accredited representatives of a foreign government which does not have formal diplomatic relations with the United States.
The G-4 subcategory is used by officers and employees of recognized international organizations.
The G-5 subcategory includes attendants, servants, and personal employees of the representatives and employees in one of the other four subcategories.
Whether an alien is qualified for G classification is determined solely by the State Department. Holders of G-1, G-2, G-3, and G-4 visas are admitted to the United States for an indefinite period, dependent on their continued recognition by the State Department as qualified nonimmigrants. G-5 visa holders are admitted to the United States for a period of no more than three years, and can receive extensions of stay in two-year increments.
Family members of G visa holders are included in the same subcategory as the principal.
Temporary Workers
H1-B Workers of Distinguished Merit and Ability
The H-1B visa status is used to employ professionals temporarily for periods of up to six years. The professional must be coming to the United States to perform services in "specialty occupations" for which the professional holds the requisite qualifications. The H-1B category can also be used by fashion models of "distinguished merit and ability," and by foreign medical graduates if they have passed the Federation Licensing Examination (FLEX) or an equivalent examination. A nurse with a B.S. may be sponsored for H-1B status if the nursing position actually requires a B.S. degree.
The position must be one for which a bachelor's degree or an advanced degree is the usual entry-level requirement. The applicant must possess the qualifications (degree) needed for the position or education, specialized training, and experience that is equivalent to training acquired by the attainment of a U.S. bachelor's or higher degree in the field. The position itself may be permanent in nature, but the visa holder must be planning to only temporarily fill the position. The H-1B category requires the filing of a labor condition application (LCA) with the Department of Labor prior to the filing of a petition with the INS. The holder of an H-1B visa may only work for the sponsoring employer. The holder of an H-1B visa may intend to become an immigrant (permanent resident) of the United States at the time he or she applies for and holds an H-1B visa.
Family members are given H-4 Dependent Visas and are not eligible to work in the United States, although they may undertake full-time studies. An annual numerical limit of 65,000 visas is placed on new admissions in the H-1B category.
H-2A Temporary Agricultural Workers
The H-2A category is reserved for aliens who will work on a temporary basis in agricultural positions of a temporary or seasonal nature. The employer must demonstrate that it has only a temporary need for the type of services or labor to be performed by the aliens and it must demonstrate that United States workers are not available who are unemployed and qualified for the position. In addition, the applicant for an H-2A visa must demonstrate that he or she has a foreign residence that he or she has no intention of abandoning, and must intend to depart from the Untied States at the end of his or her temporary stay. Family members are classified in the H-4 category and cannot receive work authorization unless they change to a nonimmigrant category for which employment is authorized.
The employer's permission to hire the alien is usually valid for up to one year. An employer can obtain an extension of the permission to employ an alien for an H-2A position, although an alien who has held H-2A status for a total of three years may not be granted H-2A status (or H or L status) until he or she remains outside the United States for an uninterrupted period of six months.
H-2B Temporary Workers Filling Non-Agricultural Positions
H-2B visa holders can hold skilled or unskilled positions. The employer must demonstrate that it has only a temporary need for the type of services or skills to be performed, and it must demonstrate that U.S. workers are not available who are unemployed and qualified to fill the position. In addition, the alien must have a foreign residence which he or she has no intention of abandoning, and must intend to depart the United States at the end of his or her temporary stay.
The employer's petition can be approved for up to one year. The petition can be extended for up to three years, which must be followed by at least six continuous months out of the United States at a foreign residence before the alien can be the beneficiary of a new H or L petition.
Exchange Visitors
The J-1 visa category is reserved for participants in exchange-visitor programs approved by the U.S. government. Foreign medical graduates who enter the U.S. on a J-1 visa can only remain for as long as is typically required to complete their program. He or she must make a commitment to return to his or her home country upon completion of the program. The home government must also certify that there is a need in its country for the alien's skills. The foreign medical graduate must return to his or her home country for a period of two years before being permitted to apply for permanent residence in the United States or for an H or L visa.
Other groups of exchange visitors who are also subject to the two year foreign residence requirement are aliens whose participation in the exchange-visitor program was funded in whole or in part by the U.S. government or the alien's government, and aliens who possess skills which have been determined by the U.S. Information Agency to be in short supply in the alien's home country. The two years must be spent in the alien's country of citizenship or last residence, and need not be continuous. The requirement applies no matter how short a time the exchange visitor spent in his or her exchange program.
Waiver of the Two Year Foreign Residence Requirement
The two year foreign residence requirement may be waived on one of four bases: (1) the waiver is requested by an interested government agency; (2) the alien can show that imposition of the requirement will result in "exceptional hardship" to a U.S. citizen or permanent resident spouse or child; (3) the alien can show that he or she would be subject to persecution in his or her home country; and (4) the alien's home government issues a letter of "no objection" to the alien's remaining in the United States (foreign medical graduates are not eligible for this waiver).
Family members of J-1 visa holders, who are classified in the J-2 category, are subject to the two-year foreign residence requirement if the principal alien is subject to it. While in the United States, the J-2 family members cannot work without INS permission. An application for employment permission must be accompanied by evidence that the employment will be used to cover expenses for the family members, but not for the principal exchange visitor.
Intra-Company Transferees and Their Families
L-1 visas are available to persons who have worked abroad for one continuous year within the preceding three years for a qualifying, related business entity, in an executive, managerial, or specialized knowledge capacity, and who are being transferred temporarily to a qualifying, related business entity in the United States to work in one of these capacities. The U.S. company must be a parent, branch, subsidiary, affiliate, or joint venture with the company abroad.
An L-1 visa holder must establish only that he or she is coming to the United States temporarily, regardless of his or her intention to immigrate to the United States eventually. Seeking permanent residence does not constitute an intention to abandon foreign residence for L-1 purposes.
Persons Possessing Extraordinary Ability in the Arts, Sciences, Education, Business or Athletics and
Accompanying Aliens and Their Families
O-1 status for aliens in the sciences, education, business, and athletics is reserved for those who are one of the small percentage who have risen to the very top of their field of endeavor. To qualify for O-1 status, the alien must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise.
To qualify as an O-1 alien of extraordinary ability in the arts, the applicant must demonstrate that he or she has distinction in the field, defined as a high level of achievement in the field of arts as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person is described as prominent, leading, or well-known in the field of arts.
All O-1 aliens must be coming to the United States to work in their area of extraordinary ability or achievement.
The O-2 category is set aside for aliens who will accompany and assist in the artistic or athletic performance of an O-1 alien. Such aliens must be an integral part of the actual performance and have critical skills and experience with the principal alien which are not of a general nature and which cannot be performed by other individuals. The O-3 category is set aside for family members of the O-1 and O-2 aliens.
An O-1 petition can be approved only after the employer consults with and submits an advisory opinion from an appropriate peer group, labor organization, or management organization in the area of the alien's ability, if such an entity exists.
The O visa may be granted for up to a three year period, and extensions can be granted in one-year increments in order to permit the O alien to continue to complete the same event or activity for which he or she was admitted. An alien may legitimately come to the United States on an O-1 visa and at the same time lawfully seek to become a permanent resident.
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