Immigration Law: Non-Immigrant Visas

Introduction

Foreign nationals seeking a temporary stay in the U.S. typically require a non-immigrant visa. Non-immigrant visa are temporary. These visas authorize a stay of limited duration within the U.S., after which the alien must return to his or her native country, or to some other country outside the U.S. Non-immigrant visas come in many different categories, each authorizing a particular type of conduct within the United States. An alien's ability to secure a particular visa requires a showing that the alien meets that visa's requirements. Some non-immigrant visas may be extended one or more times, and in some instances an alien may "change status," that is, secure a different type of visa than the type used to enter the country. While some countries may have more flexible policies, the immigration laws of the U.S. are fairly specific and often strict. Aliens who intentionally provide false information to Customs and Immigration Service officials may jeopardize their right to come to the U.S., and deprive themselves of the chance to become U.S. citizens at any future time.

Non-immigrant Visa Requirements and Categories

An alien who wishes to secure a non-immigrant visa must typically declare his or her intent to stay only temporarily in the U.S. If the alien demonstrates an intention to remain in the U.S. and to pursue U.S. residency, the visa will typically be denied. Most non-immigrant visa categories are available in unlimited numbers, but a few non-immigrant work visas are subject to numerical limitation. Recipients of a work visa that is subjected to limitations, such as an H-1B visa, may face a waiting period before they are eligible to enter the country. In recent years, in response to employer demands, Congress has adjusted the limitations rules to avoid or reduce such delays.

A person who seeks to enter the U.S. as a nonimmigrant must generally apply for the visa at an U.S. embassy or consulate. Once the visa is issued, an immigration officer, either at a pre-flight inspection station or at the border must still admit the alien to the U.S. If the alien is admitted (and will be, unless the officer determines that the alien does not qualify for admission), he or she will be issued an I-94 card, authorizing the visa holder to remain in the U.S. for a specified period of time. It is sometimes possible to change from one visa type to another, such as from a visitor's visa to a student visa, but such changes are permissible only when the alien did not intend at the time of entry to pursue the benefits of the latter visa. Where the immigration service concludes that the alien intended from the outset to pursue a different visa than the one used to enter the country, the change of status request is likely to be denied.

There are more than twenty categories of non-immigrant visas with which foreign nationals may come for temporary stays in the U.S. In addition, a provision known as the visa waiver pilot program allows persons from certain countries to come to the U.S. for 90 days without a visa. The countries for which the visa waiver program applies include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, and Uruguay. Canadians may come to the U.S. without a visa for short stays under another law.

The most common non-immigrant visa is the B visa, also called the visitor's visa. Like most of the visa types, the B has more than one category. The B-1 is for business visitors; the B-2 is for tourists. Often, the two are issued together, meaning that their holders may engage in business or tourist activities. It's important to note, however, that the B-1 visa is not a work visa. It does not authorize an alien to pursue employment in the U.S., although an alien on a B-1 may do work for a foreign company located in the U.S. Activities typically appropriate under a B-1 visa include seminars, conferences, conventions, meetings with a U.S. office of a foreign corporation, conducting research, and making investments. Securing a B-2 tourist visa can be simple or difficult, depending on the alien's native country. Natives of countries or regions with a high level of visa fraud may have to meet strict requirements to show that they have specific plans for their U.S. travels, adequate resources to carry them out, and adequate commitments and ties to the home country to ensure the alien's return.

In addition to tourists, many non-immigrant visa holders come to the U.S. for educational purposes. The F visa permits foreign students to receive education from a variety of institutions approved by the Customs and Immigration Service. These include colleges and universities, seminaries, conservatories, high schools and elementary schools. The J visa also addresses academic work, permitting students, scholars, trainees, teachers, professors, researchers, specialists and physicians to receive training or to teach in the U.S. Holders of F and J visas may work under certain limited conditions. An M visa permits vocational training at community and junior colleges and vocational high schools. And a Q visa allows aliens to engage in cultural exchange programs with a school, museum, business or other such entity.

The remaining non-immigrant visas cover a broad variety of individuals and purposes. "A" visas are for ambassadors and career diplomats; C visas are for foreign travelers simply passing through the U.S.; D visas are for crewmen landing temporarily in this country and departing aboard the same ship or plane; E visas cover business persons trading with or investing in the U.S. pursuant to a treaty; G visas serve foreign government representatives working for an international organization in the U.S. There are also visas for NATO representatives; specialty occupations, agricultural workers and temporary workers for which there is a shortage of U.S. workers (H); representatives of the foreign press (I); persons coming to marry a U.S. citizen (K); intracompany transferees with specialized knowledge (L); persons of extraordinary ability in the sciences, arts, business or athletics (O); athletes and entertainers of international recognition (P); and religious workers (R).

Some of these visas authorize their holders to work and are subject to additional application and documentation criteria. Generally, work visas are not issued absent a showing that issuance of the visa will not deprive qualified U.S. workers of employment opportunities.

Conclusion

Non-immigrant visas provide opportunities for foreign nationals to come to the United States for a broad range of purposes. Some of these visas are relatively simple to secure and require only modest time and effort on the part of the applicant. Others, especially those authorizing training or employment, are more difficult and may involve elaborate procedures to document the need for the alien worker and the alien's eligibility. For this latter type of visa, the assistance of an experienced attorney can help simplify the process for the employer and provide a better chance that the desired visa will be approved. Aliens who wish to change status or extend their visas may also benefit from legal counsel.

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