Berd & Klauss, PPLC is a dedicated team of lawyers in New York that specializes in immigration and immigration-related issues. We take pride in treating each person as an individual and listening to our clients’ needs. Please get in touch with us to learn more about subjects, including non-immigrant visas and processing. We can set up an appointment to answer all of your questions.
Non-immigrant visas are for international travelers coming to the U.S. temporarily. This visa allows you to travel to a U.S. port-of-entry (airport, for example) and request permission of the CBP Officer to enter the U.S. A visa does not guarantee entry into the United States.International travelers come to the U.S. for a wide variety of reasons, including tourism, business, medical treatment and certain types of temporary work.
The type of visa needed is defined by immigration law and relates to the purpose of your travel. For an overview of the types of non-immigrant visas available under immigration law, please see Non-immigrant Visa Classifications on the USCIS website.Advance planning can smooth the visa application process for you. These are the following non-immigrant visas:
This visa covers business related trips for a short duration. A B-1 will only be granted for a period of time necessary to conduct the alien’s business. Business visitor cannot work in the U.S. and be compensated for services rendered in the U.S. The alien must maintain a residence abroad which the alien has no intention of abandoning to be approved a visa in this sub-category.
This visa covers short visits for pleasure, such as tourism or visiting a family member.
An E-1 non-immigrant is defined as an alien entitled to enter the United States pursuant to a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him, solely to carry on substantial trade (Import or Export) which is international in scope principally between U.S. and the foreign state of which s/he is a national.
An E-2 non-immigrant is defined as an alien entitled to enter the United States pursuant to a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him, solely to develop and direct the operations of an enterprise in which he has invested or of an enterprise in which he is actively in the process of investing, a substantial amount of capital (at least $50,000).
A J-1 Visa is a special form of non-immigrant visa for certain aliens known as “exchange visitors.” To obtain a J-1 Visa, an alien must be sponsored by an employer working through an Exchange Visitor Program as designated by the U.S. State Department. Generally, immigration regulations permit J-1 holders to work for the program sponsors. In some limited circumstances, however, J-1 holders may work for non-sponsor employers and the eligibility varies from one category to another.The duration of J-1 status depends on the J-1 holder’s program of study. A J-1 holder’s IAP-66, Certificate of Eligibility, usually indicates the duration of his program. However, a J-1 holder may extend his stay under the J-1 status if his total stay period does not exceed the maximum duration of stay for the program, and his program sponsor agrees to the extension.
Certain persons who entered and/or stayed in the United States as J-1 “exchange visitors” are required to return to their home country or country of last permanent residency for a period of two years after completion of J-1 status before they can be eligible for H or L status or permanent residency status. There are a number of circumstances where the foreign residency requirement can be waived.
This category allows international companies to bring aliens to the United States to work in the United States for a limited period of time (up to 7 years). In this category, the employer files a petition with the USCIS in order to obtain permission to transfer the alien to the company’s U.S. location for a limited initial period of one year or three years.
The employer cannot petition for an alien to be transferred to its U.S. operation unless it does business systematically in the U.S. and at least one other country. The alien employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years. Furthermore, the alien to be transferred must have been employed abroad in an executive or managerial position, and he must be coming to the U.S. to fill one of those capacities.
In this category, the alien must have an intent to depart the U.S. upon completion of his authorized stay, however, he may also pursue permanent residence at the same time.
This category contains many of the same requirements as the L-1A category and allows the beneficiary to remain in the U.S. for a limited period of up to 5 years. The alien must have “specialized knowledge” which is defined as special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.
Aliens who wish to pursue academic studies in the U.S. apply for an F-1 visa. Aliens admitted under this category can remain in the United States as long as it takes to complete their intended course of study. They may also engage in a specific period of practical training (OPT) after completion of their studies as long as the training would not be available in their own country. Aliens applying for a visa under this category do not need pre-approval from the USCIS, but they do need to present to the U.S. consulate a certificate of eligibility from the institution they plan to attend (I-20).
L-2 visa may be issued to an L-1 holder’s spouse and children under 21 years of age. L-2 holders are considered to be the dependents of L-1 holders. L-2 holders may be entitled to enter and remain in the United States for the duration of the L-1 holder’s authorized stay. Their duration of valid stay is the same as that of the L-1 holder. L-2 holders are permitted to attend school on their L-2 status, and they do not have to be full-time students. L-2 holders are not permitted to work unless they are independently qualified and thereby eligible for work authorization.
To qualify under this category, the alien must have an extraordinary ability in the sciences, arts, education, business or athletics. Different standards of eligibility apply for the various fields listed above. The alien must be coming to the United States to work in his area of extraordinary ability or achievement. Under this category, the initial period of the alien’s stay in the United States is approved for the time necessary to complete the activity for which the alien is admitted, up to a period of three years. Approval must be obtained from the USCIS prior to the alien applying for this visa at the U.S. consulate. An alien can be approved for the O visa even if he previously applied for permanent residence.
This category is for entertainers and athletes who cannot qualify under the extraordinary ability standard for the O category. To qualify, the alien must either be an athlete who competes individually or as part of a team at an internationally recognized level or be an essential part of an entertainment group that has received qualifying international
K-1 visas are issued to the fiancés (or fiancés) of U.S. citizens. The purpose of the K-1 visa is to allow the fiancés of U.S. citizens to travel to the United States for marriage. The maximum period of stay in the U.S. is ninety days. A K-1 holder cannot change his K-1 status without marrying the U.S. citizen fiancé. Once the K-1 holder marries the U.S. citizen within the authorized time period, he may apply to adjust his status to permanent resident status.
The H-1B classification allows professionals to work in the U.S., on a temporary basis, within their profession. It is suitable and ideal for engineers, nurses, professors, researchers, computer programmers and other professionals. The H-1B category is designed to attract highly skilled professionals to work in the U.S. on a temporary basis.
H-1B classification is available only to workers in occupations requiring highly specialized knowledge normally acquired through attainment of a four-year college degree. The applicant must possess at least a bachelor’s degree or its equivalent.
The H-1B visa allows specialty occupation workers to enter the United States and work in a professional capacity for a maximum period of six years. In this category, the U.S. employer petitions the USCIS for the alien’s entry to the United States for purposes of working with that employer.
There is no foreign residency requirement, and the alien may apply for permanent residence while he is in H-1 status or before or after he applies for an H-1B visa.
The TN category is a special category created under NAFTA (North American Free Trade Agreement) for qualifying professionals who are nationals of Canada or Mexico. Aliens qualified to enter the U.S. under this category can work for a company located in the U.S. for a temporary period. They can also work for a Canadian or Mexican company in the U.S. when those companies are engaged in projects with U.S. based companies. The initial time limit for a TN professional to work in the U.S. is one year.
However, this period can be renewed at one-year increments indefinitely. An alien must posses the necessary credentials to be considered a qualifying professional under this category. A bachelor’s degree or higher is usually required to be considered a professional in the TN category. The alien must intend to depart the U.S. upon completion of his authorized status. If the alien applies for permanent residence while he is in TN status, he will have difficulty in obtaining renewal of his TN status. Mexican nationals require a visa before they can be admitted to the U.S. in this status, whereas Canadian nationals need only apply with the USCIS at the border and bypass the visa requirement.
This category allows for a temporary worker to be invited by an individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The training program must be one that is not designed primarily to provide productive employment.
H-4 visas are issued to H-1 holders’ spouses and children under 21 years of age. H-4 holders are considered to be the dependents of H-1 holders. Spouses and children under 21 years of age may be entitled to enter and remain in the United States for the duration of the H-1 holder’s authorized stay, as H-4 status holders. Their duration of valid stay is the same as that of the H-1 holder. H-4 holders are permitted to attend school on their H-4 status, and they do not have to be full time students. H-4 holders are not permitted to work.
A third country visa is a solution for an alien who has a valid legal status in the U.S., but does not have valid visa and wants to leave and come back to the United States. An alien with a valid legal status, but expired visa would have to apply for a new visa if the alien wants to leave and come back to the U.S.
An alien must apply for a visa at the U.S. Consulate outside the U.S. If the alien leaves the U.S. and plans to regain entry by applying for a visa, the alien risks being denied the visa and being unable to re-enter the U.S. The following is a useful rule for an alien who is faced with this predicament.
A visa is deemed extended for thirty days if the alien has a valid legal status and travels to and from Canada or Mexico within those thirty days. It is important to note that the extension is only good for travel to and from Canada or Mexico.
If a person stays in Canada or Mexico for more than thirty days or exits Canada or Mexico and attempts readmission to the United States from another country, the extension does not apply, and the alien has to apply for a new visa to be readmitted into the U.S.Furthermore, an alien will be denied admission if his visa expired and he leaves the United States, and then attempts readmission through Canada or Mexico.
Due to the above rule, an alien with an expired visa, but a valid status, can apply for a new visa at the US consulate in Canada or Mexico and be able to be readmitted to the United States. According to current policy, an alien who has sought but been denied a visa, is not eligible for re-entry on the basis of the prior unexpired status. Therefore, there is some risk for attempting to obtain a third-country visa. At the same time, any alien who travels with an expired visa to a country other than Canada or Mexico can gain readmission only by applying for a new visa at a US consulate.