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Nonimmigrant Visa Overview (Alphabet Soup) Part 1

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Nonimmigrant Visa Overview (Alphabet Soup) Part 1 Nonimmigrant Visa Overview (Alphabet Soup) Part 1 Diana Vellos Coker (DL), San Diego, CA Sang M. Shin, Houston, TX © 2018 AILA #AILAAC18 TYPES OF VISA CATEGORIES A, G & NATO: Diplomatic visas B: Visitors for Business or Pleasure Quasi-B: Visa Waiver Program (and ESTA) C: Transit visa D: Crewman E: Treaty Traders and Treaty Investors F & M: Students J: Exchange Visitors H-3: Trainees H-1B: Specialty Occupation incl. Free-Trade Hs E-3: Australian Specialty Occupation H-2A: Seasonal Agricultural Workers H-2B: Temporary Workers © 2018 AILA #AILAAC18 Nonimmigrant Intent • Required for nonimmigrant visa/entry into U.S. • Foreign national bears the burden of proof and needs to establish that s/he: - has a residence abroad that s/he has no intention of abandoning; - is entering the U.S. for a temporary period; and - will timely depart from the U.S. • ***Exception: Dual Intent for certain categories © 2018 AILA #AILAAC18 1 Status vs. Visa • Status: your status IN the U.S. - citizen, national, immigrant or “nonimmigrant.” - out of the U.S. you don’t have a status. • Visa: is your ticket to ride. - tagged with a certain status for which you are eligible based on the purpose of travel. - signals to the CBP officer to inspect you for admission in that status. © 2018 AILA #AILAAC18 A Visa Status Diplomats and Foreign Government Officials – • travelling to the U.S. on behalf of his/her national government; • to engage in official government activities. © 2018 AILA #AILAAC18 A Visa Status A-1: ambassadors/public ministers/career diplomats, and immediate families A-2: other accredited officials and employees of foreign governments, and immediate families A-3: attendants, servants, personal employees of A-1 or A-2 visa holders © 2018 AILA #AILAAC18 2 G Visa Status G-1: members and their family members: 1. Of a permanent mission of a recognized government; or 2. to an international organization; • Includes all ranks except domestic employees. © 2018 AILA #AILAAC18 G Visa Status G-2: 1. Members of permanent mission of a recognized organization to an international organization; 2. Recognized government representative and their dependents traveling temporarily to attend meetings of a designated international organization (e.g. UN, IMF, OAS, OAU, ICSID). © 2018 AILA #AILAAC18 G Visa Status G-3: Representatives of non-recognized or nonmember governments and their dependents. © 2018 AILA #AILAAC18 3 G Visa Status G-4: for personnel of any rank coming to take up an appointment at a designated international organization (including the UN), and their dependents. G-5: attendants and personal employees of G-1, G-2, G-3 and G-4 visa holders. © 2018 AILA #AILAAC18 NATO Visa Status • Special visas for certain employees of NATO countries (9 FAM 402.3-8(C)) • Employment incident to status for principal. – Certain dependents • NATO-7 Visas: for attendants, servants and personal employees © 2018 AILA #AILAAC18 A, G, and NATO Visa Status • Period of admission – initial three years with extensions in two year increments • Dependents can work if reciprocity between the U.S. and foreign country • Changing or adjusting status in the United States requires Form I-566 © 2018 AILA #AILAAC18 4 B-1 Business Visitors • Acceptable business activities • Source of payment • Period of admission • Invitation letters • Nonimmigrant intent © 2018 AILA #AILAAC18 B-2 Visitors for Pleasure • Acceptable activities • Period of admission • Nonimmigrant intent • Issues with visa issuance and admission © 2018 AILA #AILAAC18 Visa Waiver Program/ ESTA • Visa exempt • Certain countries • 90-day period of admission • Extension of stay or change of status permissible? © 2018 AILA #AILAAC18 5 C Visa Status • Foreign national in “immediate and continuous” transit through U.S. (C-1); UN Transits (C-2); or foreign representative passing through U.S. (C-3). • Possession of ticket or assurance of transportation to destination. • Sufficient funds for transit. • Period of stay cannot exceed 29 days. • Cannot Change Status. • Examples – Crewmen joining ship, businessmen traveling from Kenya to Korea through the U.S. © 2018 AILA #AILAAC18 D Visa Status • Crewman (person serving in any capacity required for normal operating and service on board a vessel) • Consular officer takes into account duties and responsibilities of individual on the ship or aircraft • 29 day maximum period of admission • No extension/change of status or adjustment of status • Issued form I-95 Conditional Landing Permit © 2018 AILA #AILAAC18 E-1/2 Visa Status E-1 Status: Treaty Traders: substantial trade between the U.S. and treaty country E-2 Status: Treaty Investors: substantial investment of capital in a U.S. enterprise © 2018 AILA #AILAAC18 6 E-1/2 Visa Status Requirements: • Treaty must exist • Applicant national of treaty country • 50% or more ownership by treaty country applicant • Trade/investment must be substantial © 2018 AILA #AILAAC18 E-1/2 Visa Status • Managerial duties or essential skills • Spouse can apply for employment authorization • Admission for 2 years at a time • Extensions indefinite • 2 to 5 year visa stamp • Nonimmigrant intent • No prior USCIS approval required—in fact, the consulate will not recognize a petition approval © 2018 AILA #AILAAC18 F-1 Students • Types of acceptable programs • Course load requirements • Funding during program • Employment © 2018 AILA #AILAAC18 7 M-1 Student • Types of acceptable programs • Course load requirements • Duration of program •Employment • Change of status issues © 2018 AILA #AILAAC18 F-1 and M-1 Students • SEVIS and documentation required • Period of admission • Nonimmigrant intent © 2018 AILA #AILAAC18 J Visa Status • Created by Fullbright Hayes Act of 1961; • DOS administers • Purpose: To increase mutual understanding between United States and other countries through cultural and educational exchange • Program Sponsors designated by DOS • SEVIS Form DS-2019 © 2018 AILA #AILAAC18 8 J Visa Status Common Categories of J-1 Exchange Visitors: • College/University Students • Professors/Research Scholars (5 years) • Interns/Trainees (12-18 months) • Foreign Medical Graduates (residency/fellowship) • Teachers • Au Pairs © 2018 AILA #AILAAC18 J Visa Status Nonimmigrant Intent Financial support and health insurance INA §212(e) two-year home residence requirement: • United States or home government funding • Exchange Visitor Skills List • Foreign Medical Graduate Students J-2 Spouses and children – can work © 2018 AILA #AILAAC18 H-3 Visa Status Instruction or training other than graduate medical training Not intended for U.S. employment • I-129 filed at USCIS Service Center with detailed training plan • Impermissible attributes • Key factors • Admission length of training not to exceed 2 years • Issues with readmission, extension, and change of status © 2018 AILA #AILAAC18 9 H‐1B Visa General Requirements • Specialty Occupation–position normally requires at least a Bachelor’s degree (or equivalent) in an appropriate field of study. • Labor Condition Application (LCA) – DOL regulations apply regarding required wage and other compliance. • Form I-129 and supporting documents are filed with USCIS. © 2018 AILA #AILAAC18 H‐1B Visa General Requirements cont. • Dual Intent is allowed (may pursue green card). • H-4 Spouse is not eligible for a work permit. • Maximum time period in U.S. is 6 years (less any time spent in L-1 visa status). • Required to file H-1B amendment for “material” change © 2018 AILA #AILAAC18 H‐1B “Cap Subject” • “H‐1B Cap:” 65,000 H‐1B numbers available each year. An additional 20,000 H‐1B numbers are available for individuals with U.S. advanced degrees. Earliest date to apply is April 1st. If H‐1B’s are exhausted the 1st day or week, a lottery occurs. H‐1B status becomes effective October 1st. © 2018 AILA #AILAAC18 10 H‐1B “Cap Exempt” • Cap Exempt – Can obtain H‐1B at any time. Employed by or at an institution of higher education (e.g. University) or affiliated non‐profit entity. Employed by or at a non‐profit research or government research organization. H‐1B extensions/amendments. Change of Employer H1‐B ‐ currently in H‐1B status with another employer (unless employed with a cap exempt employer). Held H‐1B status in the past 6 years (unless with a cap exempt employer). © 2018 AILA #AILAAC18 H‐1B Heightened Scrutiny • Contracts and Itineraries – 3rd Party Worksites and Consulting Arrangements – IT industry • Additional Work Locations – Matter of Simeio Solutions • Employer/Employee relationship • Level I Prevailing Wage Considerations • OFLC v. OOH Job Categories © 2018 AILA #AILAAC18 Hypothetical – Meet Wayne Parker • Wayne Parker is a British national who currently holds an F-1 visa and will be graduating from the University of North Carolina in December 2018 with a degree in Computer Science • Queens Tech Services, Inc. is a British-based company with subsidiary offices in France, Germany, the United States, Mexico and Canada. • Queens Tech wants to employ Wayne as an IT Consultant for their project in Madison, Wisconsin. © 2018 AILA #AILAAC18 11 Hypo – Meet Wayne Parker (cont.) • What visa(s) does Wayne qualify for? • What additional information do we need to know? • What additional considerations should we take into account? © 2018 AILA #AILAAC18 E‐3 Specialty Occupation Professionals from Australia • Only for Australian nationals. • Must have a legitimate offer of employment in the United States. • Possess a Bachelor’s degree or its equivalent. • Will fill a position that qualifies as a specialty occupation, i.e. requires at least Bachelor’s level education. © 2018 AILA #AILAAC18 E‐3 Specialty Occupation Professionals from Australia (cont.) • Apply directly at the U.S. Consulate abroad. • Application package must include certified Labor Condition Application. • E‐3 Visa and I‐94 card are issued for two year period. • Stay can be extended in two‐year increments, no maximum. • Work authorization for dependent spouse. © 2018 AILA #AILAAC18 12 H‐1B1 Specialty Occupation for Chileans and Singaporeans • 6,800 visas each fiscal year out of the 65,000 H‐1B visa cap. • Position must be a specialty occupation i.e. must require a Bachelor’s degree or its equivalent.
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