MYERS & MYERS
Immigration and Nationality Law

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Chicago, IL 60659
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NON-IMMIGRANT VISA CATEGORIES

There are several non-immigrant visa categories which provide temporary status in the US. Some of the more common categories are listed below. Click on the links for a short description:

B-1 Business Visitor:

  • Intended for temporary business trips, such as attending business meetings or conferences, making sales calls or purchasing trips, and investigating business opportunities.
  • Requires a non-immigrant intent and does not permit the holder to be employed, perform day to day job duties, or otherwise be paid a salary in the US.
  • Given initially for three months or less, however a maximum of six months B-1 status can be granted if a valid business purpose can be shown.
  • Although a B-1 visitor can apply in the US for an extension of status, the maximum total amount of time permitted in B-1 status on any one trip is generally one year.

B-2 Visitor for Tourism or Pleasure:

  • Intended for temporary personal trips, such as vacations and visiting with friends or relatives.
  • Requires a non-immigrant intent and does not permit the holder to be employed, perform day to day job duties, or otherwise be paid a salary in the US.
  • Normally, B-2 status is given initially for six months.
  • Although a B-2 visitor can apply in the US for an extension of status, the maximum total amount of time permitted in B-2 status on any one trip is generally one year.

E-2 Treaty Investor:

  • Allows someone who is a citizen of a country with which the US has an investment treaty to make an investment and work to implement the investment.
  • Requires a non-immigrant intent.
  • This category requires a showing of all of the following:
    • Citizenship by the beneficiary in a country which has an investment treaty with the US;
    • A substantial amount of money has been or will be invested in a business in the US; and
    • The beneficiary has some substantial property or assets outside the US which will not be used to make the investment.
  • Can be obtained by filing a visa petition and request for change of status with the USCIS if the beneficiary is in legal status in the US and is otherwise eligible or can be obtained by applying for a visa directly at an American consulate or embassy.
  • Spouses and unmarried minor children may qualify for E-2 dependent status and may also be able to obtain employment authorization in the US.

F-1 Foreign Student:

  • Intended for study in the US, usually at a college or university or at an English as a second language program prior to studying at a college or University.
  • Prior to applying, a student must be admitted to an approved school and be given a form I-20 by that school.
  • Requires a non-immigrant intent and a showing of financial ability to attend school without working in the US other than part time on-campus employment.
  • Upon completing a degree in the US, a foreign student may be granted up to one year of Optional Practical Training (OPT) employment authorization to gain some work experience in a job related to the major field of study.
  • Normally, F-1 students are granted an indefinite period of authorized stay known as D/S, but are required to maintain their status by attending school on a full-time basis until degree completion, not working unless authorized, and making progress toward degree completion.
  • Can be obtained by filing a request for change of status with the USCIS if the beneficiary is in legal status in the US and is otherwise eligible or can be obtained by applying for a visa directly at an American consulate or embassy.
  • Spouses and unmarried minor children may qualify for F-2 dependent status which does not permit employment.

H-1B Temporary Professional Worker:

  • Allows employment in the US in an occupation requiring highly specialized knowledge for a sponsoring US employer.
  • Dual intent regarding immigration is recognized so that there may be both a non-immigrant intent and an immigrant intent at the same time.
  • A US employer must sponsor the beneficiary by filing a visa petition with the USCIS.
  • Requires the sponsoring employer to pay the beneficiary at least as much as the higher of the following figures:
    • The actual wage paid to other similarly employed workers with similar background and experience; or
    • The prevailing wage for job in the metropolitan area where the job is located.
  • Requires the sponsoring employer to file and obtain an approved Labor Condition Attestation (LCA) from the US Department of Labor before filing the visa petition. The LCA is the employer’s promise to comply with the above wage requirement and several other LCA rules.
  • The visa petition will be granted only if:
    • The job is one which the government agrees normally requires a bachelor level university degree or higher in a specific field of study related to the job; and
    • The applicant possesses that degree or the degree equivalent.
  • If the beneficiary is in legal status in the US and is otherwise eligible the visa petition can include a request for change or extension of status. If the beneficiary will apply outside the US for a visa, the visa petition must be approved by the USCIS before an H-1B visa can be issued by an American embassy or consulate.
  • There is a quota on the number of new H-1B visa petitions which can be approved in any given year. Some types of cases are exempt from the quota.
  • Spouses and unmarried minor children may qualify for H-4 dependent status which does not permit employment.
  • There are expensive filing fees which are required to be paid by the sponsoring employer in most H-1B visa petition cases
  • Although H-1B status is possibly the most sought after non-immigrant working visa status in the US, the types of cases to which it applies are limited by a complex set of rules and requirements.

K-1 Fiancee or Fiance of a US citizen:

  • Permits a future spouse of a US citizen who is not in the US to enter the US in order to get married to the sponsoring future spouse.
  • A visa petition must be approved by the USCIS before applying for a K-1 visa with a US embassy or consulate.
  • The visa petition requires the following proof:
    • The petitioner/sponsor is in fact a US citizen.
    • The petitioner/sponsor and the future spouse qualified and intend to enter into a legal and bona fide marriage.
    • The petitioner/sponsor and the future spouse have physically met within the two year period immediately prior to the filing of the visa petition, that a physical meeting during that period was not possible or that it violates a religious or cultural custom or law.
  • Although the K-1 visa is considered a non-immigrant visa, it is treated very much like an immigrant visa at the time of visa interview because it is known that the applicant has an immigrant intent.
  • Once the future spouse arrives in the US in K-1 status, he or she must do two things within 90 days of arriving:
    • Get married to the sponsoring spouse; and
    • File with the USCIS for adjustment of status from K-1 to permanent resident status.
  • An applicant who enters the US on a K-1 visa is not eligible for adjustment of status in the US to permanent residence on any basis other than marriage to the US citizen petitioner/sponsor.

K-3 Certain Spouses of US Citizens

  • Allows spouses of US citizens who are awaiting approval of an immigrant visa petition filed by the US citizen spouse to enter the US while waiting for the approval of the visa petition.
  • A K-3 visa petition must be approved by the USCIS before applying for a K-3 visa with a US embassy or consulate.
  • The visa petition requires the following proof:
    • The petitioner/sponsor is in fact a US citizen.
    • The petitioner/sponsor and the beneficiary have entered into a legal and bona fide marriage.
    • The petitioner/sponsor has previously filed an immigrant visa petition with the USCIS which is still pending.
  • Although the K-3 visa is considered a non-immigrant visa, it is treated very much like an immigrant visa at the time of visa interview because it is known that the beneficiary has an immigrant intent.
  • An applicant who enters the US on a K-3 visa is not eligible for adjustment of status in the US to permanent residence on any basis other than marriage to the US citizen petitioner/sponsor.

L-1 Intracompany Transferee

  • Permits a foreign employer to transfer an employee to work in the US at an affiliated US entity with which the foreign employer has a qualifying relationship.
  • Dual intent regarding immigration is recognized so that there may be both a non-immigrant intent and an immigrant intent at the same time.
  • The US entity must sponsor the beneficiary by filing a visa petition with the USCIS. This must be done before an L-1 visa can be issued to the employee/beneficiary by an American consulate or embassy overseas.
  • The visa petition will be granted only if:
    • The foreign employer owns, is owned by or has common ownership with the US entity.
    • The beneficiary has worked in a managerial or executive capacity or in a position of specialized knowledge for the foreign employer for at least one year during the three year period before initial filing.
    • The beneficiary will work in the US in a managerial or executive capacity or in a position of specialized knowledge.
  • Spouses and unmarried minor children may qualify for L-2 dependent status and may also be able to obtain employment authorization in the US.

R-1 Temporary Religious Worker:

  • Allows employment in the US in a religious occupation for a religious organization.
  • Requires a non-immigrant intent.
  • A US religious organization must sponsor the beneficiary. This can be done by filing a visa petition and request for change of status with the USCIS if the beneficiary is in legal status in the US and is eligible or it can be done by providing the beneficiary with the necessary documents to apply directly at an American consulate or embassy for a visa.
  • This visa status requires a showing of at least the following:
    • The sponsoring religious organization qualifies as a tax-exempt organization under Section 501(C)(3) of the Federal Tax Code;
    • The job to be performed is religious in nature requiring an application of knowledge about the religion (not every job for a religious organization qualifies as a religious occupation); and
    • The beneficiary has been a member of the same religious denomination as the sponsoring religious organization for at least two years prior to applying.
    • If the job is as a minister, priest, imam, rabbi or other similar leading position, the beneficiary must also show that he or she has been ordained or certified by the denomination to hold that position.
  • Generally, the position must be full time and be compensated at a high enough wage so that the beneficiary will be able to live in the US without requiring other employment or soliciting funds from other sources. The sponsoring religious organization must show that it has the financial ability to pay the wage offered.
  • Spouses and unmarried minor children may qualify for R-2 dependent status which does not permit employment.

TN NAFTA Treaty National:

  • Allows citizens of Canada and Mexico to be employed or engage in business activities in the US on a temporary basis in one of the professional occupations listed in the appropriate appendix to the North American Free Trade Agreement.
  • Requires a non-immigrant intent. Under the NAFTA treaty, dual intent is not permitted.
  • Generally, almost all of the occupations listed for which this visa status is available require at least a university level bachelor degree and/or licensing for entry into the occupation. However, not all “professional” occupations are listed.
  • With respect to Mexican applicants, requires the sponsoring employer to pay the beneficiary at least as much as the higher of the following figures:
    • The actual wage paid to other similarly employed workers with similar background and experience; or
    • The prevailing wage for job in the metropolitan area where the job is located.
  • With respect to Mexican applicants, requires the sponsoring employer to file and obtain an approved Labor Condition Attestation (LCA) from the US Department of Labor before filing the visa petition. The LCA is the employer’s promise to comply with the above wage requirement and several other LCA rules.
  • With respect to Mexican applicants, a visa petition must be filed with the USCIS and approved before a visa may be issued by an American embassy or consulate.
  • With respect to both Canadian and Mexican applicants, if the beneficiary is in legal status in the US and is otherwise eligible for a change of status, a visa petition filing can include a request for change or extension of status.
  • With respect to Canadian applicants, an application for TN status can be made directly at any American-Canadian border crossing point or at an American pre-boarding inspection facility in a Canadian airport. A visa petition need not be approved by the USCIS in advance.
  • Spouses and unmarried minor children may qualify for TD dependent status which does not permit employment.

V Status for Certain Spouses and Unmarried Minor Children of Permanent Residents:

  • Allows spouses and unmarried minor children of permanent residents to come to the US on a V visa or change status in the US to V status if already in the US provided they meet all of the requirements:
    • The permanent resident spouse or parent must have filed a family based 2a category immigrant visa petition  on or before December 21, 2000 (the day the V visa law was passed);
    • The priority date for that immigrant visa petition (usually the date the immigrant visa petition was filed) must be more than three years earlier than the application for a V visa or change of status to V visa status; and
    • Generally, the beneficiary must not fall into any of the categories of inadmissibility which prevent people from being admitted to the US (there are some notable exceptions to this rule).
  • Although the V visa is considered a non-immigrant visa, it is treated very much like an immigrant visa because it is known that the applicant has an immigrant intent.
  • Contrary to the normal rules on change of status, an applicant who meets the V visa requirements may be out of legal status in the US and still apply with the USCIS for a change of status to V visa status, thereby getting back into a legal status without departing the US.
  • An applicant who meets the V visa requirements and who is outside the US, may apply directly at an American embassy or consulate for a V visa.
  • Once a child who is in the US in V visa status gets married or turns 21 years old, he or she will no longer qualify for V visa status and will become out of legal status. The Child Status Protection Act does not apply to V visa status at all.
  • Once the permanent resident spouse or parent becomes naturalized, any spouse or child who is in the US in V visa status will no longer qualify for V visa status and will become out of legal status. However, the spouse or child may still qualify to file for adjustment of status in the US in the Immediate Relative category.

Disclaimer: Content on this site is intended for generalized information purposes. It may become out of date at any time due to changes in the law. It is not intended to provide case-specific legal advice nor should it be considered valid or accurate for that purpose. If you have a specific immigration related legal issue, we recommend you consult with an experienced attorney. Illinois does not provide for certification of expertise in immigration law and our firm makes no claim to be certified. Copyright © 2004-2006 by Myers & Myers. All rights reserved.