United States: Non-Immigrant Visas

Background.

Some explanation of basic terms is essential. Visas are granted by Consular officers of the United States, serving at more than 200 Consulates throughout the world. While in many circumstances the Bureau of Citizenship and Immigration Service ("BCIS") determines whether a person is eligible for a non-immigrant status (E, H, L or O), the Consul in the alien’s home country has the final say as to whether the visa will be granted. Once the visa is granted, by imprinting a machine readable document (with photograph) in the alien’s passport, the alien will be accepted for transportation to the United States by a commercial carrier. However, at the border (typically an international airport) the alien must present the visa to an BCIS officer, who will make the ultimate decision as to whether the person will be admitted to the United States. Certain visas do not require BCIS involvement (B, F, J and TN) but often other steps must be taken before a Consul will grant the visa. In every case, however, the alien must be "inspected" upon entering the United States by an BCIS Border Control Officer.

Perhaps taking things slightly out of order, you should be aware that it is the BCIS which grants "changes of status" from one non-immigrant classification to another. Thus, an alien who originally was granted a student visa, and entered as a student, often changes status to that of an H-1 "specialized worker." If the alien remains in the United States, there is nothing further to be done with regard to the now obsolete F visa. However, on the alien’s very first departure from the United States, he or she must visit a United States Consul and have the new visa imprinted in the passport. That is, once one "changes" non-immigrant status, it is essential to have a new visa imprinted in the passport prior to returning to the United States. This need not be done in the alien’s home country; so-called third country nationals may have new visas imprinted in their passport in Canada (for which there is an appointment system), Mexico, or wherever they have a legitimate reason to be. Note, however, that certain nationals, primarily from the Middle East, who require special security checks cannot have their visas processed in Canada.

By far the largest number of visas (or "visa waivers") issued are "B-1" business visitors or "B-2" visitors for pleasure. B visas do not require a petition to the BCIS, but are granted directly by the Consul (except in the case of visa-waiver countries). The basic requirement is that the alien must show a bona fide intent to depart from the United States after a relatively short and definable stay, that the person has sufficient contacts in his or her own country and that adequate financial arrangements have been made to support the alien during the temporary stay.

The majority of B non-immigrants now enter the United States pursuant to visa waivers. Intending visitors from the following countries need not obtain visas before traveling to the United States:

Visa waiver non-immigrants will be granted a ninety day stay in the United States. Generally, the only documents that they need to have are their passports and return airfare. Visa waiver entrants are usually not quizzed too intently with regard to the purpose of their trip. The quid pro quo for the benefit of not having to apply for a visa with a Consul is that visa waiver entrants cannot extend their stay beyond ninety days (except in truly emergent situations) and they may not change their non-immigrant status from B to any other non-immigrant or immigrant status (with certain exceptions for immediate relatives of United States citizen).

Canadian citizens have never been required to have a visa and may enter the United States as visitors upon presentation of a passport, driver’s license or other suitable identification. Note that many inspectors are quite adept as discovering intent to visit the United States inconsistent with visitor status.

Business visitors cannot be employed in the United States. This applies both to true employees and independent contractors. Moreover, the business visit should relate to the foreign employer’s business. Except in special circumstances, compensation must be from the foreign employer.

While traditionally business visitors were granted approximately three months (depending upon the stated purpose of their visit), since April, the BCIS border agents have been, in effect, enforcing a proposed regulation found at 67 Fed. Reg. 18065 (April 12, 2002). B-1 business visitors are now being quizzed intently as to the purpose, duration, and other details of their stay in the United States and often are granted as little as ten days. While the initial stay can be extended (Form I-539) if the visitor entered under a visa and not as a visa waiver, that involves further application to the BCIS (see below).

The State Department has issued a list of acceptable B-1 activities, which give some idea of what is contemplated by the category. For example, employees coming to the United States to solicit sales, negotiate contracts, or take orders for the foreign company are bona fide B-1 business visitors. In addition, B-1 business visitors may come to the United States with regard to contracts already extant, again remembering that the benefit must accrue to the foreign company. Other acceptable B-1 activities include consultation with United States business associates, visits for litigation, attending professional or business conferences and conventions and coming to the United States for the purpose of conducting research. Professionals or specialized workers seeking to come to the United States as H-1 employees may utilize the business visitor category to seek employment in the United States. Similarly, investors, traders or intracompany transferees or would-be intracompany transferees coming to the United States to set up their business may be accorded B-1 status.

There are some other relatively infrequently used activities that might qualify for B-1 status, including employment that would otherwise qualify as H-1 (professional activity) or H-3 (trainee activity), where the payment is being made by a foreign company. Other accepted uses of the B-1 visa include those coming to attend board of directors’ meetings and academic activities where an honoraria will be paid (and there are detailed rules on that subcategory). There are also circumstances where personal or domestic servants of United States citizens or non-immigrant employers may be accorded B-1 status.

In addition to the obvious tourist category, B-2 visitors may come to the United States for medical treatment (along with household members of the person seeking medical treatment). Key here is return airfare, a reasonable itinerary and sufficient funds to pay for the vacation.

Since September 11, the BCIS has restricted the relatively open student visa (F) category. Traditionally, students would enter the United States with B-2 visas, enroll in school and change their status to F. This is no longer possible, unless the B-2 visitor states explicitly upon entry that it is his or her intention to change status to that of a student provided that a suitable school is found.

Remember visa waiver entrants cannot extend or change status. For others, however, it is possible to extent the status by way of Form I-539. The form must be filed prior to the expiry of the originally granted stay. If the visitor or employee contemplates a stay in the United States beyond ninety days, it is probably appropriate to attain a "B-1/B-2 multiple entry" visa, so that one may extend the stay beyond what is originally granted by the border officer. Note, however, that the current stinginess of the border inspectors may militate toward accepting the ninety days instead of starting with, say, thirty days and then seeking an extension. So long as the extension application is filed prior to expiration of the original stay, the law allows the alien to remain in the United States until the extension application is adjudicated. In some cases this may take two or three months, which accomplishes what was sought in the first place.

Note that all of the forms referred to herein may be downloaded from the BCIS website, www.BCIS.usdoj.cov/graphics/formsfee/index.htm. The basic forms for applying for a visa, the DS156 and DS157 are available on the Department of State website, www.travel.state.gov.

These specialized and more involved visas allow for temporary work status, but unlike other nonimmigrant categories, may be renewed indefinitely. These visas are generally issued for an initial period of five years.

In order to qualify for an E-1 treaty trader visa one must first check on the non-immigrants’ nationality. Treaties exist with:

The trading company or office to be established in the United States, which will employ the alien(s), must be at least one-half owned by treaty country nationals. Ownership may, but need not, include the transferee alien. Note that permanent residents cannot qualify as treaty country owners. In sum, the alien, a majority of the ownership and the trade must be of or with the treaty country.

Trade includes goods or services, which must be "substantial." Determining whether a "flow" of trade or services is substantial is quite fact specific. The factors considered include the size of the industry, quantity of trade and the number and regularity of transactions. The Consul or BCIS needs to see paper evidence, not promises. The alien must be coming to perform supervisory duties or must have a unique knowledge of the product or service. The skill must be related to the product and be unavailable in the United States. And the company must show some willingness to train United States workers.

A Treaty Investor (E-2) visa is available for nationals of the following countries:

The investment (the money committed to the company) must be "substantial" and more than a marginal one which provide only the alien the means for earning a living. There is no specific dollar amount required; generally $100,000 is sufficient. In some cases, even smaller investments will qualify. Again, the company also must be at least 50% owned by treaty nationals. The investment must be active, i.e., not simply one purchasing stock in a company to be run by someone else. The principal investor or employee must have some expertise in the field of endeavor. This person must have a key role in the enterprise. The company must do more than support the principal investor and his or her family – there must be employment generation prospects.

"Substantiality" is the biggest issue: the client always asks what is the minimum, and there is no set amount. The money must be put at risk, and cannot simply be a commitment from a parent overseas. While an alien may be in "the process of investing" to be accorded the visa, the Consul or BCIS needs to see that substantial sums are being put at risk for space, inventory, equipment, whatever. Note that there is some latitude in the type of financial transactions that will be accepted.

Percentage ownership: the State Department has established a sliding scale for the minimum percentage ownership of the principal investor:

Essential employees may also be accorded E-2 status. They must also be nationals of the treaty country and bring essential skills. Consuls are relatively strict in applying this test for persons other than the principal investor.

Applying for the E visa: generally done through a Consul, who will have a set procedure for qualifying the company and the individual. The form is the DS-156E, but more important is a detailed cover letter explaining how each of the various statutory requirements has been met. The application requires substantial supporting documentation, demonstrating the endeavor as a real business -- not just one supporting the investor or trader -- with a real, physical presence and ongoing sales, purchases and so on. Check the specifications of the Consulate at issue, which are sometimes posted on its web site, if it has one.

Generally, an E visa holder will be given two years at each entry. Thus, because these people by nature often travel, the extensions are automatic, until the five years of the visa expires. At that time visa renewal must be sought at the Consulate or through the BCIS. Note that a two year stay should be granted even though the visa itself is set to expire prior to then. Extensions of stay within the United States – required if the alien remains in the United States for two years without travel abroad – is accomplished by a petition to the BCIS: Form I-129 with E supplement.

The family (spouse and unmarried children under 21) are also accorded E status for the same periods as the principal alien. The spouse of an E alien may apply for work authorization. Be sure to extend the family’s dependent E status on a Form I-539.

The visa may be renewed indefinitely, provided that the underlying trade or investment continues.

Full-time students in the United States are accorded F status. This applies to elementary through post doctoral students. No pre-approval from the BCIS is required. The foreign student obtains an I-20 certificate of eligibility from the school’s foreign student advisor, presents this to the Consul along with evidence of support, and is then admitted for the length of time needed to complete the studies. As you might imagine, F visas are not granted for public elementary and secondary schools unless arrangement for payment has been made.

The student must be enrolled for at least 12 hours, have demonstrated some English proficiency or be taking courses to reach proficiency, and must show that he or she has a true residence abroad that is not being abandoned.

Once the visa is granted, the student’s I-94 (entry permit) will be stamped "D/S" meaning duration of status. Thus the student may remain here as long as the school keeps the I-20 current.

Student aliens rarely require much in way of legal assistance, inasmuch as FSAs are quite current with regard to the latest regulations. Note that the new SEVIS (Student and Exchange Visitor Information System) imposed new reporting obligations on schools and students, who must follow precisely the guidance of their FSAs.

The foreign student adviser at the college or university is empowered to grant "work authorization" to students. In this way students can work, part time, as a means of gaining experience. Upon graduation (whether or not the student worked for an employer previously), the foreign student adviser may grant "practical training" to the student in two six-month segments. In this way, a former student, directly out of college, may work for one year (without petitioning costs). In that year, the employer can decide whether the additional investment of H-1 petitioning is worthwhile.

Most likely to be useful is the H-1B "specialized knowledge" non-immigrant category. In order to qualify for such a visa, the alien must have a four-year college degree (or its equivalent) and be coming to the United States to fill a position requiring the specialized knowledge reflected in the degree. Other persons filling the same job slot at the employer must also be college graduates. Prior to filing for H-1B status, the employer must file a Labor Condition Application, wherein the employer attests to the Department of Labor that the alien will be paid the prevailing wage for the job in question. H-1B visas are employer-specific: if an alien wishes to change H-1B employers, an entirely new petition must be filed with the BCIS. However, once here as an H-1B, the alien may begin work for second employer as soon as the petition is filed – the alien need not wait for the approval. H-1B visas are granted for a maximum initial period of three years and may be renewed for an additional three years. Changing employers does not extend the six-year maximum period. Extensions beyond six years are possible if a permanent residency application has been pending for more than one year. Otherwise, an alien must be physically present outside the United States for at least one year subsequent to the six-year period before he or she may reapply for H-1B status.

The H-1B petition itself is not too cumbersome and a response is generally

received from the BCIS within four months. "Premium Processing," with an extra fee of $1,000, reduces the wait to two weeks or less.

If the beneficiary does not have four years of college, it is possible to satisfy the BCIS requirement by establishing three years of responsible work similar to the position sought for each missing year of formal education. That is, if a would-be beneficiary had a two-year college degree and six years of increasingly responsible employment in the relevant field, that person would qualify for H-1B status. Note that it is often necessary to establish the bona fides of a given degree or experience through the use of a credentialing agency (a private contractor) approved by the BCIS.

You may also be aware that Congress had at one time limited the number of H-1B visas. This inconvenience was temporarily eliminated, but was reimposed as of October 1, 2003. However, the $1,000 "training" fee has been eliminated.

Once you have concluded the position itself requires a four year degree or its equivalent (which in many cases in the business world is no easy task), one must determine whether the alien possesses the equivalent of a four year degree, in a related field. First, if the alien graduated from an accredited United States institution, you need go no further. If the alien graduated from a foreign institution, you must have a credentialing agency to vet the foreign degree. There are many such agencies, and they are competitive, prompt and generally provide the required response.

Once you have satisfied yourself that the position requires a specific degree, and that the alien has that degree or equivalent, the first step in the application process is determining a prevailing wage. There are several ways of doing this: apply to the State Employment Service Agency (SESA); determine the applicable union wage (unusual for an H-1 petition); check the Occupational Employment Statistics data base (http://edc.dws.state.ut.us); refer to a commercial survey; or, conduct your own survey. Regardless of the method chosen, the employer must be able to attest to the Department of Labor that it is offering the alien at least the prevailing wage. In reality, the likelihood of defending the wage is small, because investigation only occurs if a complaint is lodged.

Once the prevailing wage is determined, the employer files a Labor Condition Application on Form ETA 9035. "Approval" is by way of "fax back" and is prompt and automatic. In this case, "approval" does not mean the wage is approved, only that the form is properly prepared. The LCA must remain posted for ten days where such notices are usually put up.

Once the LCA is received with the Labor Department’s rubber stamp, one can file the petition with BCIS: Form I-129 with H supplement. In the cover letter and supporting documentation, the petitioning employer demonstrates its ability to pay the preferred wage, the requirements of the position and the alien’s education and experience.

Once the petition is approved, the alien applies at his or her home Consulate for the visa.

The spouse and minor children of H-1B beneficiaries are accorded H-4 status and may enter and leave the United States at will, with or without the H-1B beneficiary. H-4 non-immigrants are not allowed to work in the United States. If they choose, they may seek their own H-1 (or other) non-immigrant status.

Once the BCIS grants the visa petition, it is necessary for the alien to apply for the visa at an appropriate United States Consul. This is almost always a formality, and all the alien need produce is the original of the BCIS approval notice, even though the approval is, in theory, sent directly to the relevant Consul by the BCIS. The H-1 non-immigrant may enter and leave the United States at will and may be paid any salary, so long as it is not less than what is shown on the LCA.

Note that H visas are employer-specific and that a new employer must file a completely new petition.

So long as one has been employed outside the United States by the parent, subsidiary or 50-50 joint venture partner of a United States or foreign company for more than one year within the preceding three, that person may be transferred to the United States subsidiary, parent, or whatever for an initial period of three years, renewable for a two or four year period. There is no numerical limit on L visas. There are two subcategories: (1) managers and executives (L-1A) and (2) persons with specialized knowledge (L-1B). Managers and executives are generally defined as those persons with hire and fire responsibility who supervise the work of others, as opposed to having "line" responsibilities. Foremen and supervisors, sales persons, and others who actually perform the work of the corporation (as opposed to directing others who do) are not deemed "managers" or "executives."

L1-B "specialized knowledge" aliens are those with a specific knowledge of the company’s product, processes, proprietary information, etc., coming to the United States to use that specialized knowledge for the benefit of the company. For example, we have placed service or guarantee engineers and customer service representatives in this category. The spouse and minor children of L non-immigrants are entitled to enter and leave the United States and may be employed, with BCIS authorization.

There are no specific educational requirements for L transferees, but one must establish that the transferee is sufficiently trained and educated for the position to be held in the United States. There are significant advantages to L-1A manager or executive status (but not for "specialized knowledge" aliens), which we will discuss below.

One must recognize that in the small company scenario, the president/owner establishing a branch or subsidiary in the United States may not close up his company behind him; both the transferring and transferee companies must continue in business.

Provided the ownership of the transferee company is one-half in common with the transferring parent, the L-1A visa is available. The transferee may be paid by either company and may spend a substantial percentage of time abroad. A company with a substantial number of transferees may petition for a blanket petition; the threshold in terms of number of transferees is relatively high. The explanatory letter, the heart of the petition, sets forth the history and business of the parent, how the relationship of the companies qualify, the purpose of the transfer, why the position is managerial or "specialized knowledge," and how the alien qualifies.

The "one year in the preceding three" must be continuous according to the regulations, although even if broken the petition is worth the attempt. The petitioning process itself is similar to the H-1: an I-129 with L supplement. There is no LCA or attestation concerning a prevailing wage and no need to test the labor market.

The new office situation: Where the transferee company in the United States is newly formed, one must still show a lease and some other indicia of a real, going business. The BCIS will not require proof of sales or other employees, however, and will typically approve such a petition for one year. At the conclusion of the year (and in fact after eight months because of the slow pace of approving petitions), one must re-petition for another two years, demonstrating that the "new office" did what it set out to do in terms of sales, employment, and so on.

As with the H-1, the alien must await approval by the BCIS, and take that approval to his or her home Consulate. The spouse and minor children are accorded L-2 status, and L-2 spouses may gain employment authorization.

The North American Free Trade Agreement creates one new visa category "TN," and has some impact on the B-1, E and L-1 visas.

First, NAFTA increases the number of acceptable B-1 activities for Canadians and Mexicans. However, the B-1 visitor must continue to be paid from abroad, the activities must be international in scope, and there cannot be an attempt to enter the local labor market. The areas of added opportunity include research and design, manufacture and production, sales, distribution, after-sales

service and general services. Each area must be explored in detail to test its applicability.

The new visa, "TN," applies to "professionals," coming to the United States temporarily to work for a United States company. The visa is granted for one year and may be renewed indefinitely. This overlaps somewhat with H status, but does not involve the LCA headaches and is not limited to six years. Also, Canadians may apply at the border when they seek to enter -- they need not petition the BCIS. Mexicans must follow a procedure similar to that for the H-1. The treaty sets out the following "professions" which qualify:

• Accountant
• Architect
• Computer Systems Analyst
• Disaster Relief Insurance Claims Adjuster
• Economist
• Engineer
• Forester
• Graphic Designer
• Industrial Designer
• Interior Designer
• Land Surveyor
• Landscape Architect
• Librarian
• Management Consultant
• Mathematician
• Range Manager/Range Conservationist
• Research Assistant
• Scientific Technician/Technologist
• Social Worker
• Sylviculturist
• Technical Publications Writer
• Urban Planner
• Vocational Counselor
• Medical/Allied Professional
• Dentist
• Dietitian
• Medical Laboratory Technologist
• Nutritionist
• Occupational Therapist
• Pharmacist
• Physician
• Physio/Physical Therapist
• Psychologist
• Recreational Therapist
• Registered Nurse
• Scientist
• Agriculturist
• Animal Breeder
• Animal Scientist
• Apiculturist
• Astronomer
• Biochemist
• Biologist
• Chemist
• Dairy scientist
• Entomologist
• Epidemiologist
• Geneticist
• Geochemist
• Geologist
• Geophysicist
• Horticulturist
• Meteorologist
• Pharmacologist
• Physicist
• Plant Breeder
• Poultry Scientist
• Soil Scientist
• Zoologist
• Teacher
• College
• Seminary
• University

Each profession has treaty-defined minimum requirements. The "management consultant" category provides some room to place people not otherwise defined.

The regulation spells out the border procedure for Canadians. In reality, one appears with the equivalent of an H-1 petition -- and it is adjudicated on the spot. Arrange in advance with the NAFTA treaty officer. The family of a Canadian TN are accorded TD status. Mexicans must apply by mail for TN/TD status, much like the H-1 application. Renewals can be arranged by mail (Form I-129) or, for Canadians, at the border crossing near the one year anniversary.

Often the headache of yearly renewals outweighs the "no six year limit," and the H visa is utilized. However, the imposition of the $1,000 H-1 fee evens this up somewhat.

NAFTA extends E availability to Mexicans. However, the nationals of both countries must obtain the visa from their applicable Consul: no border application is permitted.

Canadians may apply for an L visa at the border without waiting for the I-129 petitioning process.

This category covers those persons with truly extraordinary ability in the sciences, education, business and athletics. The extraordinariness is established by a recognized award, such as a Nobel prize, membership on an Olympic team or being in the starting line up on a professional sports team. If this is not applicable, proof of at least three of the following considerations, should qualify:

• receipt of nationally or internationally recognized prize
• membership in a peer-reviewed organization
• published, peer-reviewed material in a major publication or a textbook
• panel participation or approving the work of others
• major scholarly contributions to the chosen field
• employment in a critical position for an organization
• high salary
• other evidence showing extraordinariness

Separate criteria control the admission of people in the arts, i.e., the Oscar winners.

O-2 aliens accompany O-1 artists or athletes.

There is no prescribed duration of stay, although those rules contemplate an event, or season. Three years is an outside limit. Also, the alien must be coming to perform defined work, or specified events; freelancing is not permitted. Extensions in one year increments are theoretically available.

The petition is filed with the BCIS: I-129 with O supplement. Once approved, the alien must apply to the U.S. Consulate in his or her county of citizenship.

H, L and O petitions may receive a guaranteed fifteen day initial response, for an extra $1,000. A separate form, the I-907, accompanies the fee.

This visa is used to employ, very temporarily, skilled or unskilled workers. The requirement for "temporary labor certification" renders the category of very limited utility.

The crucial consideration is "double temporariness:" the employer must not only have a temporary need for that worker but the job itself must be temporary or seasonal. The initial period is one year, with an outside limit, upon extension petition, of three years.

If the employer still wants to proceed, it must first seek "temporary labor certification." The employer must file an ETA 750A with the local state labor office, which processes the application and supervises the recruitment (advertising). Provided that the prevailing wage is offered, the employer will be directed to advertise and interview responders. Once the employer has satisfactorily tested the labor market (which is now taking at least a year), the I-129 with H supplement, along with the approved or rejected labor certification application, is submitted to the BCIS. The BCIS may approve the petition even though the labor certification is denied.

The process is quite cumbersome and time consuming for the typical employer, and generally practical only for agencies supplying temporary labor on a regular basis.