NONIMMIGRANT VISAS AND TEMPORARY STAYS:

Aliens seeking to enter the United States for a temporary period of time are classified as nonimmigrants. Because there is generally no limit as to the number of nonimmigrants who may enter the United States during any year, it is usually much easier and quicker to obtain a nonimmigrant visa than an immigrant or permanent resident visa. While there are literally dozens of nonimmigrant visa categories, many of these are very specific and not widely used, or can be obtained without much difficulty directly from a US consulate abroad. In many instances, some of these visas can later be converted to permanent residence status.

THE B-1 VISITOR FOR BUSINESS AND THE B-2 VISITOR FOR PLEASURE:

The most common and widely used of the non-immigrant visas is the B visa. There are two types of B visas: the B-1 (business visitor) and the B-2 (visitor for pleasure). Most businesspersons entering the United States enter with B-1 visas. The visa itself, which is issued by a US consul abroad, may be issued for varying periods of time, and may be issued for single or multiple entries. This must be distinguished from the period of time that is granted by the immigration service once the alien makes application for entry at a US border point. Usually, the immigration service will grant the B-1 applicant the period of time that is necessary for him or her to accomplish the purpose of the visit, usually from a few weeks up to six months.

B-1 visas are usually issued to aliens who are coming to the United States to enter into or negotiate contracts, purchase goods for shipment abroad, obtain orders for products manufactured abroad, attend business conventions, consult with business organizations, or to investigate business opportunities in the United States. They may also be used to check on business investments that the alien has previously made in the United States, and to permit the alien to open and establish a new US business, although, it must be pointed out that, the alien cannot actively participate in the management of said business.

In order to obtain a B-1 visa, the alien must establish that he or she has a residence in a foreign country which he or she has no intention of abandoning. The alien must also establish an intent to depart from the United States at the expiration of the temporary stay and that he or she has adequate funds to cover the expenses of the expected stay in the United States. In this regard, the consular or immigration official will look to the alien's ties with the foreign country to determine whether there are sufficient contacts to indicate the likelihood of the alien's returning to the foreign domicile. These ties would include such things as employment abroad, family, property, or other business or social connections with the foreign country.

Accompanying family members of B-1s, who are defined as the spouse and minor unmarried children, are usually given the same period of time as the principal alien. If, after entry to the United States, the alien discovers that he or she needs additional time in order to accomplish the purpose of the trip, an extension of time may be requested from the immigration service, on immigration form I-539, which applications are usually granted.

A B-2 visitor for pleasure is defined as an alien who has a residence in a foreign country, which he or she has no intention of abandoning, and who is coming to the United States temporarily for pleasure. The statute also states that the alien cannot be coming to the United States primarily for the purpose of studying. This does not, however, prohibit the alien from engaging in brief or incidental study. The State Department defines pleasure as any legitimate activity of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature. However, any type of employment whatsoever is precluded by the B-2 visa, even if the alien receives no remuneration, benefit, or gain for the service rendered.

Since the alien's stay in the United States must be temporary, there must be a clear intention to depart prior to the end of the authorized period of stay. In addition, the B-2 alien must show that he or she has sufficient funds to accomplish the purposes of the stay in the United States.

The B-2 visa, which is issued by a US consul abroad, like the B-1 visa, may be issued for varying periods of time, and may be issued for single or multiple entries. Again, this must be distinguished from the period of time that is granted by the immigration service once the alien makes application for entry at a US border point. In most instances, an applicant entering as a B-2 will be admitted for a period of six months.

Accompanying family members of B-2s, who are defined as the spouse and minor unmarried children, are usually given the same period of time as the principal alien. If, after entry to the United States, the alien discovers that he or she needs additional time in order to accomplish the purpose of the trip, an extension of time may be requested from the immigration service, on immigration form I-539, which applications are usually granted.

In many instances, the US consul will issue a joint B-1/B-2 visa. In these cases, the alien may seek to enter the United States, in either nonimmigrant category. At the time of entry, the alien will advise the immigration officer at the port of entry of the primary purpose of the trip. If the primary purpose is for business, the alien will be admitted as a B-1, business visitor. Otherwise, the alien will be admitted as a B-2, visitor for pleasure.

F-1 STUDENT VISAS:

The definition of a student is one who has a residence in a foreign country which he or she has no intention of abandoning, and who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States, which program must have been approved by the immigration service.

In order to be admitted to a school as an F-1 student, the alien must first obtain from the school's foreign student advisor an immigration form known as an I-20. In addition to meeting the academic qualifications, the prospective student must also submit evidence of sufficient financial support for the period of the academic program. When the school issues this form to the student, it is an indication that the student has met the necessary qualifications for admission to the school. However, the student must then apply for an F-1 visa at a US consul if they are outside of the United States, or they can apply for change of status with the immigration service if they are in lawful immigration status in the United States. This application is made on immigration form I- 539. It must be accompanied by the approved I-20 form, as well as evidence that the prospective student has sufficient funds to support himself or herself in the United States for the duration of studies. In other words, the immigration service wants to be sure that the student will not have to resort to unauthorized employment in order to pay for their schooling or living expenses while attending school.

When the application for change of status is approved by the immigration service, or when the student enters the United States with an F-1 visa, the student is admitted for the duration of their status as a student, which is noted as "D/S" on their entry document.

In order to maintain student status, the student must attend school on a full-time basis, which generally means 12 academic credit hours per semester. There may be exceptions, such as when a student is ill and unable to attend on a full-time basis, when a graduate student is working on a thesis, or during the school's annual vacation.

As a general rule, a student is not permitted to be employed while studying in the United States. However, there are some exceptions. The first is on-campus employment. If a student is otherwise maintaining status, he or she may work on the school's premises up to 20 hours per week while school is in session, and full-time during breaks and the student's annual vacation.

The second type of employment for an F-1 student is known as the pilot off-campus employment program. In this program, the foreign student advisor may authorize off-campus employment with a qualifying employer for any F-1 student who has been in F-1 status for one full academic year and is maintaining both valid F-1 status and good academic standing. The student is allowed to work up to 20 hours per week during school sessions and full-time during holidays, breaks, and the student's annual vacation. The prospective employer must meet several requirements in order for it to be included in the program, including evidence that it has recruited unsuccessfully for the position which the F-1 student will occupy for at least 60 days, and that the F-1 student will be offered wages and working conditions which are similar to others currently working in similar positions.

The third type of employment is employment based on severe economic hardship. This is provided for students who must work due to unforeseen economic hardship. Students may apply for this form of work permission if they have been attending school for one full academic year; are in good academic standing and are carrying a full course of study; can show unforeseen severe economic hardship; and the acceptance of employment will not interfere with the student's continuing in a full course of study. The foreign student advisor must certify on immigration form I-538 that he or she concurs in the student's need for employment. The application is filed with the local immigration office, together with immigration form I-765 (Application for Employment Authorization.) The student may begin employment upon approval of the employment authorization request, which is usually issued for a period of one year.

The fourth type of student employment is known as curricular practical training. This is defined as employment that is an integral or important part of the F-1 student's curriculum, and includes such employment as work/study programs, internships, and cooperative education programs. This usually includes employment that is required to complete any degree requirements. The foreign student advisor may designate the program as either full time or part time.

The fifth type of employment authorization is known as optional practical training. Optional practical training must be related to the student's major area of study and is limited to a period of 12 months. However, it is not necessary that the student have a pre-existing offer of employment. While optional practical training is usually issued after the student has completed his or her course of study, it may be granted while school is in session, during the student's annual vacation, or during the time that the student is in the process of completing his or her thesis. The foreign student advisor must sign immigration form I-538, and the application is filed with the immigration service center having jurisdiction over the student's place of residence.

The Immigration Act of 1996 made significant changes to the F-1 student program. A new provision added to the Act states that an alien may not be accorded status as a nonimmigrant student to pursue a course of study at a public elementary school, or in a publicly funded adult education program, or at a public secondary school, unless the total period of such status at such a school does not exceed 12 months, and the alien demonstrates that he or she has reimbursed the school for the full cost of providing education at such school for the period of the alien's attendance. In addition, an alien student who transfers from a private elementary or secondary school or from a language training program that is not publicly funded, to a public school, shall be considered to have violated their status, and the alien's F-1 visa shall be void, unless they pay the full cost of the public education program which they will be receiving. Another provision of the act states that an alien who obtains the status of a nonimmigrant student and then violates a term or condition of said status may not be readmitted to the United States for a period of five (5) years following the date of the violation.

The dependent spouse and unmarried children of F-1 students will be granted F-2 status. An F-2 may remain in the United States for the duration of the F-1's valid status and may engage in any lawful activity, including the right to study. However, F-2 aliens are not permitted to be employed in the United States.

E-1 TREATY TRADER AND E-2 TREATY INVESTOR VISAS E-1 (Treaty Trader) and E-2 (Treaty Investor) visas are excellent for those businessmen who wish to enter into long term business ventures in the United States.

These visas are available, however, only to those aliens who are citizens or nationals of treaty countries, to wit, those countries that have entered into treaties of commerce and navigation with the United States. (A complete list of treaty countries is available on our web site).

E-1 and E-2 visas are defined by the Immigration and Nationality Act respectively, as visas to an alien who is "entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he or she is a national and, (1) solely to carry on substantial trade, principally between the United States and the foreign state of which he or she is a national, or (2) solely to develop and direct the operation of an enterprise in which he or she has invested or of an enterprise in which he or she is actively in the process of investing a substantial amount of capital."

An E-1 or E-2 visa can be either for the principal applicant, or for a managerial employee of the E-1 or E-2 company. In both cases the employer must have the nationality of the treaty country or, if an organization, it must be principally owned by personnel from the treaty country. For E-1 purposes, the trade must be of a substantial nature that is international in scope, and must be principally between the United States and the foreign state of which the applicant is a national. If the applicant is an employee, he or she must be engaged in duties of a supervisory or executive character or must have some specific qualifications that would make his or her services essential to the efficient operation of the employer's enterprise.

For an E-2 visa, the applicant must have invested or must be investing in a bona fide enterprise and not be coming to the United States solely in connection with the investment of a small amount of capital in a marginal enterprise solely for the purpose of earning a living, or if the applicant is an employee, he or she must be employed in a responsible capacity by an individual or company that has made a substantial investment in a business enterprise in the United States.

Unlike other types of non-immigrant visas, the E visas do not require the alien to establish that he or she is proceeding to the United States for a specific temporary period of time. The regulations merely require that the alien demonstrate intent to depart upon termination of his or her status. Also, the E visa applicant need not demonstrate that he or she has a residence in a foreign country which he or she has no intention of abandoning. There should be some indication however, that the alien will eventually return to his or her country upon the termination of their stay in the United States.

To qualify for an E-1 visa, the applicant must be coming to the United States to "carry on substantial trade, principally between the United States and the foreign state of which he or she is a national." While the amount of trade is obviously important, the State Department is more concerned with the volume of trade rather than the monetary amount. Therefore, many transactions of relatively small volume could establish the necessary course of trade as outlined in the statute. Furthermore, the trade must be principally between the United States and the country of the alien's nationality. This requires that at least fifty-one (51%) percent of the total amount of trade be between the United States and the country of which the alien is a national.

The E-2, Treaty Investor Visa, requires that the applicant be coming to the United States to develop and direct the operations of an enterprise in which he or she has invested or is actively in the process of investing, a substantial amount of capital. As previously noted, the investment must be substantial and not just a small amount of capital invested in a marginal enterprise for the purpose of earning a living. There has been no specific guideline on the minimum amount of investment, although the Regional Commissioner for the Southern Region of INS has stated that an investment of more than seventy-five thousand ($75,000) dollars could qualify. (However, a significantly larger investment is generally recommended.) Also, an "investment" means the placing of funds or other capital assets "at risk" in the hope of generating a return on the funds. Therefore, uncommitted funds in an idle bank account do not constitute an investment. Furthermore, an idle, passive, speculative investment merely held for potential appreciation in value such as land or stocks does not qualify under the statute.

In addition to the substantial investment in a business enterprise, the investor must be coming to the United States to develop and direct the operations of the enterprise in which he or she has made the investment. This means that the principal treaty investor must have at least fifty-one (51%) percent ownership of the investment, unless he or she is coming as an employee of the enterprise.

Generally, an E visa will be issued for a period of five (5) years. The spouse and children of the principal applicant will also receive E visas for the same period of time. When they enter the United States, they will be given a period of stay of one (1) year. If the alien desires an extension, he or she would file a request for an extension with the Immigration and Naturalization Service on immigration form I-129, together with the E supplement, and an extension will be granted in increments of two (2) years. The State Department in Washington, DC, can also reissue an E visa without the need of the alien leaving the United States in order to have the visa placed in his or her passport. The dependents of "E" aliens will generally not be permitted to work. However, should they work without authorization, their status will not be terminated, but they may be precluded from later changing their status because of the unauthorized employment.

H-1B VISAS:

An H-1B visa may be issued to an alien who is coming temporarily to the United States to perform services in a specialty occupation as defined in the Immigration and Nationality Act. The applicant for an H-1B visa must first receive an offer of employment from a US company, which company must file a visa petition on his or her behalf.

The petition is filed with the Immigration and Naturalization Service Center having jurisdiction over the place where the alien will be employed, on immigration form I-129, together with the H supplement, and immigration form I- 129W. When the petition is approved, it is forwarded to an American consulate abroad, where the alien will apply for his or her H-1B visa. If the alien is in lawful status in the United States, a change of status can be granted without the need to travel outside of the country to obtain the visa. An alien with an H-1B visa or status may be recognized as having a dual intent. This means that the alien may qualify for an H-1B visa even if he or she has evidenced an intention to reside in the United States permanently at some future time. This dual intent doctrine is applicable only to aliens who have an H-1B, E, O, P, or L visa.

As stated above, an H-1B visa can be issued only to aliens in a specialty occupation. It has been determined by the immigration service that members of the professions, whose job duties require a professional person, qualify as aliens in a specialty occupation, such as architects, engineers, lawyers, doctors, and teachers. There are many other occupations that can qualify for professional status. These generally require at least a minimum education, equivalent to a BA or BS degree from a university in the United States. (A list of occupations, which the immigration service has determined to be professional, is included on our web site.)

The professional qualifications of an alien are generally established by showing that he or she has at least a BA or BS degree from an American university in the field in which he or she will be employed.

If the alien has a degree from a foreign university, it will be necessary to have that degree evaluated by a professional evaluating service, to determine whether it is equivalent to at least a BA or BS degree from a university in this country. If an alien is coming to the United States to engage in a profession which requires licensing, he or she must meet all the necessary licensing requirements in order to be eligible for an H-1B visa, since the alien must be immediately available to engage in the employment outlined in the petition.

Prior to filing an H-1B petition, the employer must file with the US Department of Labor a Labor Condition Application (known as an LCA). The employer must attest in the LCA that it is offering to the H-1B employee the higher of either: (a) the actual wage the employer pays to other individuals similarly employed with similar experience and qualifications, or (b) the prevailing wage for that position in the geographical area of employment based on the best information available. The employer must also affirm that the working conditions for the H-1B worker will not adversely affect the working conditions of other workers similarly employed; that there is no strike, lockout, or work stoppage in the course of a labor dispute; that the employer has given its employees notice of the filing of the LCA through posting or notice to a bargaining representative, if applicable; that the employer did not displace and will not displace a US worker employed by the employer within the period beginning 90 days before and ending 90 after the filing of the H-1B petition; that the employer has taken good faith steps to recruit for the position in the United States using industry-wide standard practices; has offered the job to any US worker who applies and is equally or better qualified than the H-1B worker; and that the employer has provided, or will provide, a copy of the LCA to the H-1B worker. Furthermore, the employer must affirm that if the H-1B alien is dismissed before the end of the period of authorized stay, the employer will be liable for the reasonable costs of return transportation of the alien abroad to his or her last place of foreign residence. Any type of dismissal is covered, including one for cause. The only exception is where the alien voluntarily terminates employment.

In addition, the US employer must pay a $1000.00 fee that will be used to fund training programs to help eliminate US employers' reliance on foreign workers. This fee, and form I-129W, must accompany all petitions for new employment, and for the first extension petition filed by an employer for a particular H-1B employee. Under the statute, the employer must pay this fee. The employer cannot require or accept reimbursement for the fee from the employee, or risk a fine of $1000.00. Institutions of higher education and their related or affiliated non-profit entities, other nonprofit research institutions and government research institutions are not required to pay the fee.

Also not required to pay the fee are primary and secondary schools, as well as non-profit organizations engaged in curriculum-related clinical training of students registered at an institution of higher education.

When the alien is admitted to the United States in H-1B status, or upon a change of status within the United States, the alien may begin employment with the petitioning company in the job specified on the petition. The alien may not change employers, nor significantly change his or her job duties within the company, without first filing a new petition. He/she does not have to wait for the petition to be approved. The petition must be non-frivolous, and the beneficiary must be a non-immigrant admitted to the US (no particular non-immigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B status), must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed.

Upon obtaining an H-1B visa, the spouse and children of the principal alien are entitled to H-4 status. At the present time, the H-1B and H-4 visas are issued for an initial period of three (3) years, and an extension of three (3) years may be granted by the Immigration Service.

A new provision added October 17, 2000 allows a further extension in two circumstances: a) a beneficiary of an employment-based first, second, or third preference petition who is eligible for permanent residence, but for the application of the per-country limits, may obtain extension of the H-1B status until the adjustment of status is decided; and b) an H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.

Also, the State Department in Washington, DC, may reissue an H-1B visa without the need of the alien to travel outside of the United States in order to have the visa placed in his or her passport. H-4 aliens may not be employed in the United States, and their status is valid only as long as the principal alien is validly in status. If an H-1B petition is denied, the prospective employer may appeal the decision to the Administrative Appeals Office. However, the denial of an extension of stay is not appealable and may only be contested by an appropriately filed motion to reopen or reconsider.

President Clinton Signs New H-1B Law, October 17, 2000: S.2045, the "American Competitiveness in the Twenty-First Century Act of 2000" increases the existing visa quotas as follows: FY 2000 -increase from 115,000 to 195,000 FY 2001-increase from 107,500 to 195,000 FY 2002 -increase from 65,000 to 195,000. All H-1B petitions received by INS on or after December 18, 2000, and before October 1, 2003, must be accompanied by a $1,000 fee in addition to the $110 filing fee.

INCREASED PORTABILITY OF H-1B STATUS. Persons previously issued a visa or otherwise provided H-1B status can accept new employment upon the filing of a new petition by a new employer, subject to the final approval of the petition. If the petition is denied, work authorization ceases. In order to be eligible for this provision, the individual must have been lawfully admitted to the United States, the new petition must have been filed before the expiration of the period of stay authorized by the Attorney General and the individual must not have been employed without authorization in the United States before the filing of such petition. Employees who now hold H-1B status but want to change companies, and their future petitioning employers, are the primary beneficiaries of this expanded portability.

H1 Work prior to Approval: Anyone awaiting approval of an H-1B transfer may legally begin to work for their new employer. An H-1B visa holder may begin to work for a new employer when a non-frivolous, legally viable H-1B petition is submitted, and no longer must wait for approval before doing so. Prior law required that a worker wait until the petition was approved before changing employers. If denied, the authorization will be terminated. Under the law prior to October 17, 2000 a person on an H-1B with one specific employer was not allowed to work for another employer, unless and until the person obtained a second H-1B approval for the other employer. CIS had consistently maintained the position that one can only start work on an H1 status after obtaining the approval, but S.2045 makes this unncessary.

For H-1B visa holders with a pending employment-based green card, and who filed a labor certification or I-140 at least one year prior, the six year time limit is waived, with extensions granted in one year increments until the green card petition is either approved or denied. Section 104(c) allows ANY alien (1) who is the beneficiary of a FILED EB-1, EB-2 or EB-3 visa petition; and (2) would be eligible to apply for permanent residence except for the application of per-country limitations (e.g. born in India or mainland China) to apply to the CIS for extensions of nonimmigrant status until his or her adjustment of status application has been adjudicated. The law states that the application "may" be approved.

After an application for adjustment of status for a person sponsored under an EB category remains unadjudicated for over 180 days, the individual is free to change jobs as long as the new job "is in the same or a similar occupational classification as the job for which the petition is filed".

The H-1B cap will no longer impact any foreigner who is employed--or has a written offer of employment--by a university, college or related nonprofit organization. Neither will nonprofit or government research organizations be subject to the quota. Once a person under these categories leaves the related position, however, they do become subject to the H-1B cap once again, unless the subsequent employer is likewise exempt. Secondly, for those with a petition filed no more than 90 days prior and no more than 180 days following the completion of a graduate degree, the cap will not be applicable.

For text of H-1B Bill click here: S.2045 (.pdf file)

For Senate Report of H-1B Bill click here: S.2045 Report (.pdf file)

H-1B Regulations: Final Rule, 12-20-00, 20 CFR Parts 655 and 656/Temporary Employment in the United States of Nonimmigrants under H-1B Visas (693 KB .pdf file)