Nonimmigrant Visa Overview (Alphabet Soup) Part 1

Diana Vellos Coker (DL), San Diego, CA Sang M. Shin, Houston, TX

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

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.

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.

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

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.

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).

G Visa Status

G-3: Representatives of non-recognized or nonmember governments and their dependents.

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.

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

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

4 B-1 Business Visitors

• Acceptable business activities

• Source of payment

• Period of admission

• Invitation letters

• Nonimmigrant intent

B-2 Visitors for Pleasure

• Acceptable activities

• Period of admission

• Nonimmigrant intent

• Issues with visa issuance and admission

Visa Waiver Program/ ESTA • Visa exempt • Certain countries • 90-day period of admission • Extension of stay or change of status permissible?

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.

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

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

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

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

F-1 Students

• Types of acceptable programs

• Course load requirements

• Funding during program

• Employment

7 M-1 Student

• Types of acceptable programs

• Course load requirements

• Duration of program

•Employment

• Change of status issues

F-1 and M-1 Students

• SEVIS and documentation required

• Period of admission

• Nonimmigrant intent

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

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

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

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

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.

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

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.

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).

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

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.

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?

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.

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.

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. • Foreign national must have required degree. • Offer of employment from bona fide U.S. employer. • Nonimmigrant intent required (in contrast to H‐1B which has dual intent).

H‐1B1 Specialty Occupation for Chileans and Singaporeans (cont.) • Labor Condition Application required. • File H‐1B1 petition directly at U.S. Consulate abroad. • H‐1B1 visa is issued for 18 months – can be renewed.

H-2A Seasonal Workers

• Agricultural Workers

• Temporary Labor Certification from DOL

• I-129 filing with USCIS

• Period of admission

• Nonimmigrant intent

13 H-2B Visa Status

• Job Opportunity temporary in nature • Beneficiary meets educational, training, experience or other requirements for job opportunity • H-2B numerical limit – 66,000 • Beneficiary is national of one of the countries yearly designated as eligible (e.g. Andorra, Brazil, Mexico, South Korea, United Kingdom).

H-2B Visa Status

• Petitioner must obtain temporary Labor Cert from DOL • Temporary Need v. One-Time Occurrence v. Seasonal Need v. Peakload Need v. Intermittent Need • Position must be full time (at least 35 hours per week) • Multiple Beneficiaries allowed

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