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Non-Immigration Visas

Non-Immigration Visas

 

H1B Work Visa

The H-1B visa is a nonimmigrant work visa used by aliens who will be employed temporarily in a specialty occupation. The H-1 visa may be used to bring a worker to the United States if the employee will work in a professional position. Specialty occupation is defined as an occupation that requires highly specialized knowledge and at least a bachelor's degree in a related field. In certain cases, documented work experience may be accepted in lieu of a bachelor's degree.

Specialty occupation includes accounting, architecture, business specialties, engineering, education, information technology, law, mathematics, medicine and health, physical sciences, social sciences, theology, and arts. Other professions may also qualify as specialty occupations.

The H1B work visa requires a sponsoring US employer. The sponsor must file a labor condition application with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The H1B employer must then file an I-129 petition with the US Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service). Based on the USCIS petition approval, the alien may apply for an H1B visa stamp at an American Embassy or Consulate abroad or a change of nonimmigrant status with the USCIS. An H1B visa stamp allows an alien holding that status to travel abroad and reenter the US during the validity period of the visa and approved petition.

An alien may be admitted into the US in H1B work visa status initially for up to three years with possible extension for three more years. After six years in H1B status, an alien must remain outside the United States for one year before another H1B petition can be approved. H1B aliens may only work for the petitioning US employer and only in the H1B activities described in the petition.

An H1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without affecting the H1B status. This is known as "dual intent" and is recognized under the immigration laws. During the time that the application for LPR status is pending, an alien may travel on his or her H1B work visa rather than obtaining advance parole or request other advance permission from the USCIS to return to the US.

Under the American Competitiveness in the 21st Century Act (AC21), the quota for the H1B work visa was increased to 195,000 per year through fiscal year ending September 30, 2003. Starting fiscal year 2004 the H1B cap will return to 65,000 per year.

H1B Transfer - Under the portability provisions of AC21, an alien previously issued an H1B visa and/or granted H1B status may transfer to a new H1B job provided that the new employer has filed a non-frivolous petition (not without basis in law or fact) on behalf of the alien, and that the alien has not accrued unlawful presence in the US. In cases where the H1B petitions are denied following commencement of employment under the portability provisions, employment authorization of the H1B alien CEASES upon denial.

Due to the numerous H1B layoffs in recent times, employers must understand their obligations upon termination of H1B workers. Employers who dismiss their H1B employees before the end of the approved period of employment are required to pay the transportation cost of returning the aliens to their last place of foreign residence. If the H1B worker voluntarily terminates his or her employment prior to the expiration of the H1B status, then the employer is not liable for the alien's return transportation. The USCIS regulations also require the employer who no longer employs the H1B nonimmigrant to notify the USCIS of the termination in writing.

 

L1 Visa - Intracompany Transfers

The L1 visa applies to aliens who work for multinational companies doing business in both the United States and abroad. These workers come to the United States as intracompany transferees who are coming temporarily to perform services either in a managerial or executive capacity (L1A) or which entail specialized knowledge (L1B) for a parent, branch, subsidiary or affiliate of the same employer that employed the professional abroad. The employee must have been employed abroad for the foreign corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for at least one continuous year out of the last three-year period to qualify. There is currently no annual cap on L1 visas.

L2 Visa / Family Members

Spouses and unmarried children under 21 years of age of L1 workers are entitled to L2 status with the same restrictions as the principal. Dependents may be students in the US while remaining in L2 status and may apply for work authorization with the US Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service).

L1 Visa Petition Requirements

A US employer or foreign employer may file the L1 petition, but a foreign employer must have a legal business in the US. The petition must be filed with:

(1) Evidence of the qualifying relationship between the US and the foreign employer which address ownership and control, such as an annual report, copies of articles of incorporation, financial statements, or stock certificates;

(2) A letter from the alien's foreign qualifying employer detailing his or her dates of employment, job duties, qualifications and salary and demonstrating that the alien worked for the employer abroad for at least one continuous year within the three-year period before the filing of the petition in an executive or managerial capacity or in a position involving specialized knowledge; and

(3) A detailed description of the proposed job duties and qualifications and evidence the proposed employment is in an executive or managerial capacity or in a position involving specialized knowledge.

If the alien is coming to the US as a manager or executive (L1 A) to open or to be employed in a new office, also file the petition with evidence that:

(1) Sufficient premises to house the new office have been secured;

(2) The beneficiary has, or upon establishment will have, the qualifying relationship to the foreign employer and the qualifying position; and

(3) The intended US operation will be able to support the executive or managerial position within one year of the approval of the petition. This must be supported by information regarding:

(a) The proposed nature of the US office (size and scope, organizational structure, and financial goals);

(b) Financial information about the foreign entity (the size of the U.S. investment and the financial ability to compensate the beneficiary and to commence doing business in the US); and

(c) The organizational structure of the foreign entity.

If the alien is coming to the US in a specialized knowledge capacity (L1 B) to open or to be employed in a new office, also file the petition with evidence that:

(1) Sufficient premises to house the new office have been secured;

(2) The business entity in the US is or will be a qualifying organization; and

(3) The petitioner has the financial ability to compensate the alien beneficiary and to begin doing business in the US.

Blanket L Visa Petition

Employers who regularly file L petitions may wish to consider filing for a blanket L petition in order to obtain continuing approval for itself (and some or all of its parents, branches, subsidiaries and affiliates in the US). This simplifies the process of approving and admitting additional individual L1A and L1B workers.

The blanket L petition must be filed by a US employer who will be the single representative between the USCIS and the qualifying organizations and must be filed with copies of evidence that the:

(1) Petitioner and its branches, subsidiaries, and affiliates are engaged in commercial trade or services;

(2) Petitioner has an office in the United States that has been doing business for one year or more;

(3) Petitioner has 3 or more domestic and foreign branches, subsidiaries, or affiliates; and

(4) Petitioner and its qualifying organizations have obtained approved petitions for at least ten L1 professionals during the previous year or have US subsidiaries or affiliates with combined annual sales of at least 25 million dollars, or have a US work force of at least 1,000 employees.

 

TN Visa Treaty NAFTA Professionals

Certain Canadian and Mexican professionals are eligible to obtain one-year work permits, which can be renewed annually. The 1994 North American Free Trade Agreement ("NAFTA") makes temporary employment in the U.S. easier for certain Canadian and Mexican workers. NAFTA created a new classification, "TN" for eligible Canadian and Mexican professional workers and also affected terms of admission for Canadians admitted to the U.S. under other nonimmigrant classifications.

TN employment must be in a profession listed in Appendix 1603.0.1 to NAFTA and the TN employee must possess the credentials required. There is no annual limit on TN-1 admissions from Canada. There is a yearly cap for Mexican TN professionals of 5,500 admissions.

Professions under NAFTA Appendix 1603.0.1

Accountant, Architect, Computer Systems Analyst, Disaster Relief Insurance Claims Adjuster, Economist, Engineer, Forester, Graphic Designer, Hotel Manager, Industrial Designer, Interior Designer, Land Surveyor, Landscape Architect, Lawyer (including Notary in the province of Quebec), Librarian, Management Consultant, Mathematician (including statistician), Range Manager/Range Conservationist, Research Assistant (working in a post-secondary educational institution), Scientific Technician/ Technologist, Social Worker, Sylviculturist (including forestry), Technical Publications Writer, Urban Planner (including Geographer), Vocational Counselor.

Medical/Allied Professionals

Dentist, Dietitian, Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States), Nutritionist, Occupational Therapist, Pharmacist, Physician (teaching or research only), Physiotherapist/Physical Therapist, Psychologist, Recreational Therapist, Registered Nurse, Veterinarian.

Scientists

Agricultural (Agronomist), Animal Breeder, Animal Scientist, Apiculturist, Astronomer, Biochemist, Chemist, Dairy Scientist, Entomologist, Epidemiologist, Geneticist, Geochemist, Geophysicist (including Oceanographer in Mexico and the United States), Horticulturist, Meteorologist, Pharmacologist, Physicist (including Oceanographer in Canada), Plant Breeder, Poultry Scientist, Soil Scientist, Zoologist.

Teachers

College, Seminary, University.

Family Members - TD Status

Dependents (spouses and unmarried children under 21 years of age) of TN professionals are entitled to TD status with the same restrictions as the principal. Dependents may be students in the U.S., but may not be employed under the TD status.

TN Canadian or Mexican under NAFTA

The TN classification applies to a Canadian or Mexican citizen seeking admission as a professional temporarily under the North American Free Trade Agreement.

Canadian Citizen Requirements:

The TN classification does not require a petition for employment, if the alien is a Canadian citizen and is outside of the U.S. Canadian citizens need not obtain TN consular visas, and may apply directly at Class A U.S. ports of entry. They must provide:

1. A statement from the employer with a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay, and the arrangements for pay or reward;

2. Evidence that the beneficiary meets the education and/or alternative credentials for the activity;

3. Evidence that all licensure requirements, where applicable to the activity, have been satisfied; and

4. Evidence of Canadian citizenship.

Mexican Citizen Requirements:


An employer in the United States must file the I-129 petition and must file it with:

1. A statement from the employer with a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay, and the arrangements for pay or reward;

2. Evidence that the beneficiary meets the education and/or alternative credentials for the activity;

3. Evidence that all licensure requirements, where applicable to the activity, have been satisfied;

4. Evidence of Mexican citizenship; and

5. A certification from the Secretary of Labor that the petitioner has filed the appropriate labor condition application or labor attestation for the specified activity.

 

 

E1 Visa Treaty Trader / Entrepreneurs

Treaty traders and their employees may apply for visas to carry on substantial trade between the United States and their home country, if their country of citizenship has the required treaty with the United States.

The E1 treaty trader classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the US solely to engage in trade of a substantial nature principally between the United States and the alien's country of nationality. The trade involved must be international exchange (successfully negotiated contracts binding on all parties) of items of trade between the US and a treaty country. Title to the trade item must pass from one treaty party to the other.

If the alien is inside the US, he or she may apply for a change of status, extension of stay, or change of employment. This classification does not require a petition for employment if the alien is outside of the US. If outside of the US, the alien applies for an E1 visa on his or her own behalf directly to a US consular office abroad.

E1 Visa / Document Requirements

The E1 visa application must be filed with evidence that:

1. The applicant is a national of a country with which the USA has the requisite treaty or agreement;

2. The activity constitutes trade as defined at 8 C.F.R. Section 214.2(e)(9);

3. The trade is of a substantial nature (i.e. an amount of trade sufficient to ensure a continuous flow of international trade items between the US and the treaty country);

4. The trade conducted by the alien is principally trade between the United States and the treaty country of which the alien is a national. Trade is deemed to be principally between the US and treaty country when over 50% of the volume of international trade conducted by the treaty trader is between the US and treaty country of the treaty trader's nationality;

5. If the applicant is not the principal trader, he or she must be employed in an executive or supervisory capacity, or possess special qualifications that make the applicant's services essential to the successful and efficient operation of the enterprise;

6. Ordinary skilled or unskilled workers do not qualify. The applicant intends to depart the US upon the expiration of E1 status. (However, an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.);

7. The employee has the same nationality as the principal alien employer; and

8. The alien principal employer is an enterprise or organization at least 50% owned by persons having the nationality of the treaty country.

E1 Dependents / Family Members

Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal alien. Family members may be students in the US while remaining in E1 dependent status and spouses may apply for work authorization with the US Citizenship and Immigration Services (USCIS).

Time Limits

Holders of E visas may reside in the United States as long as they continue to maintain their status with the trade between their home country and the United States.

 

E2 Investor / Investment Visa

Foreign investors who invest in a substantial amount of capital in a US enterprise, and who will develop and direct the enterprise, may apply for E2 visas if their country of citizenship has the required treaty with the US.

If the investor is inside the US, he or she may apply to the US Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service) for a change of status, extension of stay, or change of employment. The E2 category does not require a petition for employment if the investor is outside of the US. In that case, the investor may apply for the E2 visa on his or her own behalf directly to a US consular office abroad.

The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.

E2 Visa / Document Requirements

The visa application must be filed with evidence that:

1. The investor is a national of a country with whom the USA has the requisite treaty or agreement;

2. The applicant (or in the case of an employee of a treaty investor who seeks classification as an E2, the owner of the treaty enterprise) will direct or develop the enterprise. The applicant must demonstrate that he or she controls the enterprise by showing ownership of at least 50 percent of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means;

3. The investor has invested in or is actively in the process of investing in the enterprise;

4. The investment is substantial, i.e. sufficient to ensure the investor's financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;

5. The investment enterprise is not a marginal enterprise;

6. If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify; and

7. That the applicant intends to depart the United States upon the expiration of E2 status.

E2 Dependents / Family Members

Spouses and unmarried children under age 21, regardless of nationality, may receive derivative E visas in order to accompany the principal alien. Family members may be students in the US while remaining in E2 dependent status and spouses may apply for work authorization with the USCIS.

Time Limits

Holders of E visas may reside in the United States as long as they continue to maintain their status with the enterprise.

 

  • ·         B1 Business Travel Visa / B2 Tourist Visa

The B1 or B2 visitor visa is a non-immigrant visa for foreign citizens desiring to enter the United States temporarily for business (B1, Business Travel Visa) or for pleasure or medical treatment (B2, Tourist Visa). People are planning to travel to the US for a different purpose, such as students, temporary workers, crewmen, journalists, etc., must apply for a different visa in the appropriate category. Travelers from certain eligible countries may also be able to visit the US without a visa on the Visa Waiver Program (See below for a list of visa waiver countries).

Applying for Visitor Visa

Applicants for B1 business or B2 tourist visa have the burden of showing that they qualify for such visa. The presumption is that every visitor visa applicant is an intending immigrant. Therefore, applicants for B1 or B2 visas must convince the consular officer the temporary nature of their trip by demonstrating that:

1. The purpose of their trip is to enter the US for business, pleasure, or medical treatment;

2. That they plan to remain for a specific, temporary period of time; and

3. That they have a residence outside the US, as well as, other strong economic, financial, and family ties to their home country, which will insure their return abroad at the end of the visit.

Applicants for B1 business or B2 tourist visa should generally apply at the American Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any US consular office abroad, it may be more difficult to qualify for the visa outside the country of residence.

Applicants for the B1 or B2 visa must pay a nonrefundable US$100 application fee, plus any reciprocity fee applicable to the applicant's country and submit:

1. Form DS156, Non-immigrant Visa Application, completed and signed;

2. A passport valid for travel to the United States and with a validity date at least six (6) months beyond the applicant's intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must complete an application;

3. One photograph, 2 inches square (50x50 mm) for each applicant, showing full face, without head covering, against a light background;

4. All male non-immigrant visa applicants between the ages of 16 and 45, regardless of nationality and regardless of where they apply, must complete and submit a Form DS157, Supplement Visa Application in addition to the DS156. Some American embassies and consulates also require female and other male applicants to complete the Form DS157. Applicants from state sponsors of terrorism age 16 and over, irrespective of gender, without exception are required to complete the DS157. Seven countries are now designated as state sponsors of terrorism, including North Korea, Cuba, Syria, Sudan, Iran, Iraq, and Libya.

IMPORTANT: Please note that each American Embassy and Consulate has different visa application procedures and requirements. You should contact the consulate or our office at jl@asfirm.com for information regarding the local rules.

Other Support Documents

Applicants must present evidence, which shows the purpose of the trip, intent to depart the United States, and arrangements made to cover the costs of the trip. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly.

Persons traveling to the US on business can present a letter from the US company indicating the purpose of the trip, the applicant's intended length of stay and the company's intent to pay travel expenses.

Persons traveling to the US as tourist may use letters from relatives or friends in the US whom the applicant plans to visit or present documents showing participation in a planned tour.

Persons traveling to the US for medical treatment should have a statement from a doctor or institution concerning proposed medical treatment.

Those applicants who do not have sufficient funds to support themselves while in the US must present convincing evidence that an interested person will provide financial support. Visitors are not permitted to accept employment during their stay in the US. Depending on individual circumstances, applicants may provide other evidence substantiating the trip's purpose and specifying the nature of binding obligations, such as family ties or employment, which would compel their return to their country.

Additional Information

A person whose passport contains a previously issued visitor visa may qualify for special expedited procedures available at most US embassies or consulates for issuance of a new B1 or B2 visa.

Unless previously canceled, a visa is valid until its expiration date. Therefore, if the traveler has a valid US B1 or B2 visa in an expired passport, he or she may use it along with a new valid passport for travel and admission to the United States.

Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the United States.

If the consular officer should find it necessary to deny the issuance of a visitor visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal. In the absence of new evidence, consular officers are not obliged to reconsider such cases.

Arrival in the United States

Applicants should be aware that a visa does not guarantee entry into the United States. At the Port of Entry (POE), an Immigration Inspector must authorize the traveler's admission to the US. The inspector has authority to deny admission. Also, the inspector will determine how long the person is permitted to stay in the United States. If admitted, the inspector will issue the traveler a Form I-94, Record of Arrival/Departure, which notes the length of stay permitted. Those visitors who wish to stay beyond the time indicated on their Form I-94 must apply for an extension of stay with the US Citizenship and Immigration Services (USCIS) in the United States. The decision to grant or deny a request for extension of stay is made solely by the USCIS.

Visa Waiver Program

Travelers coming to the US for tourism or business for 90 days or less from qualified countries may be eligible to visit the US without a visa. Currently, 28 countries participate in the Visa Waiver Program, including 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.

Visitors entering on the Visa Waiver Program cannot work or study while in the US and cannot stay longer than 90 days or change their status to another category.

J1 Visa / Exchange Visitors

The J1 visa for exchange visitors is designed to promote the interchange of persons, knowledge, and skills in the fields of arts, business, education, and sciences. Participants include trainees obtaining on-the-job training with businesses, institutions, and agencies; professional trainees in the medical and allied fields; students at all academic levels; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; and international visitors coming for the purpose of travel, observation, consultation, research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs.

Applicants for the J1 visa must have sufficient funds to cover all expenses, or funds must be provided by the sponsoring organization in the form of a scholarship or other stipend. J1 exchange visitors must have sufficient scholastic preparation to participate in the designated program, including knowledge of the English language, or the exchange program must be designed to accommodate non-English speaking participants.

J1 Doctor / Physician / Health Care

J1 exchange visitors coming to the United States for graduate medical education or training must meet certain special requirements. They include having passed the Foreign Medical Graduate Examination in Medical Sciences, demonstrating competency in English, being automatically subject to the two year foreign residence requirement, and being subject to time limits on the duration of their program. Doctors coming to the United States on exchange visitor programs for the purpose of observation, consultation, teaching, or research in which there is little or no patient care are not subject to the above requirements.

J1 Form

J1 visa applicants must present a Form DS2019 prepared by a designated sponsoring organization. Please note that as of September 1, 2002, the Form DS2019 will replace the IAP66 as the official form to be used in the administration of the exchange visitor program. The cut-off date for the use of the Form IAP66 is August 31, 2002. Exchange Visitor Program sponsors should use only Form DS2019 to document exchange visitors after August 31, 2002. Forms IAP66 issued and dated prior to August 31 should be accepted by consular officers in support of visa applications.

Nonimmigrant Intent

J1 visa applicants must demonstrate to the consular officer that they have binding ties to a residence in a foreign country which they have no intention of abandoning, and that they are coming to the United States for a temporary period. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly.

Employment

Employment while in J1 exchange visitor status depends upon the terms of the program. Participants in programs which provide for on-the-job training, teaching, research, or other activities, which involve paid employment may accept such employment. Participants in programs which do not involve work may not accept outside employment.

J1 Waiver / Foreign Residency Requirement

Certain J1 exchange visitors who participate in programs which are financed by an agency of the U.S. Government or by the exchange visitor's government, or who are nationals or residents of a country which has been designated by the Exchange Visitor Program as requiring the skills of the exchange visitor, must return to their country of nationality or last residence after completing their program in the United States, and reside there physically for two years before they may become eligible to apply for an immigrant or temporary worker visa.

These individuals may apply for a waiver of the two year foreign residency requirement. There are five statutory bases to apply for a J1 waiver:

1. A no objection statement from your host government;

2. A request from an interested U.S. Government agency on your behalf;

3. A claim that you will be persecuted if you return to your country of residence;

4. A claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if you are required to return to your country of residence; and

5. A request by a designated State health agency or its equivalent.

J2 Visas / Family Members

The spouse and minor children of participants in exchange programs may apply for derivative J2 dependent visas to accompany or follow to join the principal alien. They must demonstrate that they will have sufficient financial resources to cover all expenses while in the United States. Dependents may apply to the U.S. Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service) for authorization to accept employment in the U.S.

 

O1 Visa / Extraordinary Ability Worker

The O1 category is designed for foreign nationals who have extraordinary ability in the sciences, arts, education, business or athletics, which has been demonstrated by sustained national or international acclaim. To qualify, the alien must be coming to the U.S. to work in his or her area of extraordinary ability or achievement. There is currently no annual cap on O1 visas.

Science / Education / Business / Athletics

The O1 category applies to aliens coming temporarily who have extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television).

O1 Visa Petition Requirements

A U.S. employer should file the petition with:

1. A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the alien's area of ability;

2. A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;

3. Evidence that the alien has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least three of the following:


a. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

b. Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized international experts;

c. Published material in professional or major trade publications, newspapers or other major media about the alien and his work in the field for which classification is sought;

d. Original scientific, scholarly, or business-related contributions of major significance in the field;

e. Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;

f. A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;

g. Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought;

h. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

If the above standards do not readily apply to the alien's occupation, the petitioner may submit comparable evidence in order to establish the alien's eligibility.

Arts / Motion Picture/ Television

The O1 category also applies to aliens who are coming temporarily and have extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry.

O1 Visa Petition Requirements

A U.S. employer should file the petition with:

1. A written advisory opinion, describing the alien's ability as follows:

a. If the petition is based on the alien's extraordinary ability in the arts, the consultation must be from a peer group (including labor organizations) in the alien's field of endeavor; or a person or persons designated by the group with expertise in the alien's area of ability.

b. If the petition is based on the alien's extraordinary achievements in the motion picture or television industry, separate consultations are required from a labor and a management organization with expertise in the alien's field of endeavor.

2. A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;

3. Evidence the alien has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director's Guild Award, or evidence of at least three of the following:

a. Performed or will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;

b. Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;

c. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;

d. Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the alien is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the alien's achievements;

e. A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence; or

f. If the above standards do not readily apply to the alien's occupation, the petitioner may submit comparable evidence in order to establish the alien's eligibility.

O3 Visa / Family Members

Spouses and minor children (dependents) of O1's are admitted under O3 status with the same restrictions as the principal. They may not work in the U.S. under this classification.

 

 

P1 Visa - Athletes, Artists and Entertainers

P1 Visa For Athletes


The P1 classification applies to a foreign national coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.

P1 Visa Petition Requirements For Athletes

A U.S. employer should file the petition with:

1. A written advisory opinion from an appropriate labor organization;

2. A copy of the contract with a major U.S. sports league or team or a contract in an individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport;

3. Copies of evidence of at least two of the following:

a. Significant participation in a prior season with a major United States sports league;

b. Participation in international competition with a national team;

c. Significant participation in a prior season for a U.S. college or university in intercollegiate competition;

d. A written statement from an official of the governing body of the sport which details how the alien or team is internationally recognized;

e. A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;

f. The individual or team is ranked, if the sport has international rankings; or

g. The alien or team has received a significant honor or award in the sport.

P1 Visa For Entertainment Group

The P1 classification also applies to a foreign national coming temporarily to perform as a member of a foreign-based entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. This person also must have had a sustained and substantial relationship with the group (ordinarily for at least one year) and/or provide functions integral to the group's performance.

P1 Visa Petition Requirements For Entertainment Group

The petition should be filed by a U.S. employer with:

1. A written advisory opinion from an appropriate labor organization;

2. A statement that the group has been established and performing regularly for at least one year;

3. Evidence the group is internationally recognized as outstanding in the discipline for a sustained and substantial period of time as demonstrated by evidence of the group's receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field, or evidence of at least 3 of the following:

a. The group has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

b. The group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material;

c. The group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;

d. The group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications;

e. The alien has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field in which the alien is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the alien's achievements; or

f. The group has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence.

P2 Visa / Artistic Exchange

The P2 classification applies to a foreign national coming temporarily to perform as an artist or entertainer individually or as part of a group, who will perform under a reciprocal exchange program between an organization in the U.S. and an organization in another country.

P2 Visa Petition Requirements

The petition must be filed by the sponsoring organization, an employer in the U.S., or the U.S. labor organization that negotiated the agreement. The petition must be filed with:

1. A written consultation by an appropriate labor organization;

2. A copy of the formal reciprocal exchange agreement between the U.S. organization(s) sponsoring the alien and the organization(s) in a foreign country which will receive the U.S. artist or entertainer;

3. A statement from the sponsoring organization describing the reciprocal exchange of U.S. artists or entertainers as it relates to the specific petition for which classification is sought;

4. Evidence the alien and the U.S. artist or entertainer subject to the reciprocal exchange agreement are artists with comparable skills and that the terms and conditions of employment are similar.

5. Evidence that an appropriate labor organization in the U.S. was involved in negotiating, or has concurred with, the reciprocal exchange of U.S. and foreign artists or entertainers.

P3 Visa / Culturally Unique Artists

The P3 classification applies to foreign nationals coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.

P3 Cisa Petition Requirements


The petition should be filed by the sponsoring organization or employer in the U.S. with:

1. A written consultation from an appropriate labor organization;

2. Affidavits, testimonials or letters from recognized experts attesting to the authenticity of the alien's or group's skills in performing, presenting, coaching or teaching the unique and traditional art forms and giving the credentials of the expert including the basis of his or her knowledge of the alien's or group's skills.

a. Documentation that all of the performances or presentations will be culturally unique events, and;

b. Documentation that the performance of the alien or group is culturally unique as evidenced by reviews in newspapers, journals or other published materials.

P1, P2 or P3 Accompanying Support Personnel

This category applies to accompanying support personnel whom are highly skilled foreign nationals coming temporarily as an essential and integral part of the competition or performance of a P1, P2, or P3. Essential support personnel must perform support services which cannot be readily performed by a U.S. worker and which are essential to the successful performance or services of the athlete or entertainer.

P1, P2 or P3 Support Personnel Petition Requirements

The petition must be filed in conjunction with the petition for a P2 artist or entertainer by a U.S. employer and must be filed with:

1. A written consultation with a labor organization in the skill in which the alien will be involved;

2. A statement describing the alien's prior and current essentiality, critical skills and experience with the principal alien;

3. A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.

 

F1 Visa / M1 Visa / Student Visa / Education

The F1 visa is a student visa that enables foreign nationals to study in the US at accredited academic institutions. In some cases, F1 students may work while enrolled in school. Prior to or upon graduation, the student may engage in practical training for up to 12 months.

If you are going to the US primarily for tourism, but want to take a short course of study of less than 18 hours per week, you may be able to do so do so on a tourist visa. You should inquire at the appropriate US Embassy or Consulate. If your course of study is more than 18 hours a week, you will need an F1 or M1 student visa.

In most countries, first time student visa applicants are required to appear for an in-person interview. However, each embassy and consulate sets its own interview policies and procedures regarding student visas. Students should contact the American Embassy or Consulate for specific application instructions.

Keep in mind that June, July, and August are the busiest months in most consular sections, and interview appointments are the most difficult to get during that period. Students need to plan ahead to avoid having to make repeat visits to the Embassy. To the extent possible, students should bring the documents suggested below, as well as any other documents that might help establish their ties to the local community.

Changes introduced shortly after September 11, 2001 involve extensive and ongoing review of visa issuing practices as they relate to our national security. It is important to apply for your visa well in advance of your travel departure date.

When Do I Need to Apply for My Student Visa?

Students are encouraged to apply for their visa early to provide ample time for visa processing. Students may apply for their visa as soon as they are prepared to do so.

The consular officer may need to get special clearances depending on the course of study and nationality of the student. This can take some additional time.

Students should note that Embassies and Consulates are able to issue your student visa 90 days or less, in advance of the course of study registration date. If you apply for your visa more than 90 days prior to your start date or registration date as provided on the Form I-20, the Embassy or Consulate will hold your application until it is able to issue the visa. Consular officials will use that extra time to accomplish any of the necessary special clearances or other processes that may be required.

Students are advised of the law, which requires that all initial or beginning students enter the US 30 days or less in advance of the course of study start date as shown on the Form I-20. Please consider this date carefully when making travel plans to the US.

A student who wants to enter the US more than 30 days before course start date must qualify for, and obtain a visitor visa. A prospective student notation will be shown on his or her visitor visa and the traveler will need to make the intent to study clear to the US Immigration Inspector at Port of Entry (POE). Before beginning any studies, he or she must apply for a change of nonimmigrant status, and also submit the required Form I-20 to the US Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service) office where the application is made. Please be aware that one may not begin studies until the change of nonimmigrant status is approved.

What is Needed to Apply for a Student Visa?

It is important to remember that applying early and providing the requested documents does not guarantee that the student will receive a visa. Also, because each student's personal and academic situation is different, two students applying for same visa may be asked different questions and be required to submit different documents. For that reason, the guidelines that follow are general and can be abridged or expanded by consular officers overseas, depending on each student's situation.

All applicants for a student visa must provide :

- A Form I-20 obtained from a U.S. college, school or university. Be sure to provide all four pages of the I-20 form. The form must also be signed by the applicant and by a school official in the appropriate places;

- Form DS156, Nonimmigrant Visa Application together with a Form DS158, Contact Information and Work History for Nonimmigrant Visa Applicant. Both forms must be completed and signed. A separate application form is needed for children, even if they are included in a parent's passport;

- All male nonimmigrant visa applicants between the ages of 16 and 45, regardless of nationality and regardless of where they apply, must complete and submit a Form DS157, Supplement Visa Application in addition to the DS156 and DS158. Some American embassies and consulates also require female and other male applicants to complete the DS157. Applicants from state sponsors of terrorism age 16 and over, irrespective of gender, without exception are required to complete the DS157. Seven countries are now designated as state sponsors of terrorism, including North Korea, Cuba, Syria, Sudan, Iran, Iraq, and Libya.

- A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States;

- One photograph 2 inches square (50x50mm) for each applicant, showing full face, without head covering, against a light background;

- A receipt for visa processing fee. A receipt showing payment of the visa application fee for each applicant, including each child listed in a parent's passport who is also applying for a U.S. visa, is needed;

IMPORTANT: Each American Embassy and Consulate has different visa application procedures and requirements. You should contact the consulate or our office at Michael@mmlawnyc.com   for information regarding the local rules.

All applicants should be prepared to provide :

- Transcripts and diplomas from previous institutions attended;

- Scores from standardized tests required by the educational institution such as the TOEFL, SAT, GRE, GMAT, etc.;

- Financial evidence that shows the applicant or applicant's parents who are sponsoring applicant have sufficient funds to cover the tuition and living expenses during the period of intended study. For example, if the applicant or applicant's sponsor is a salaried employee, present income tax documents and original bank books and/or statements. If applicant or his or her sponsor own a business, present business registration, licenses, etc., and tax documents, as well as original bank books and/or statements.

Applicants with dependents must also provide :

- Proof of the student's relationship to his or her spouse and/or children (e.g., marriage and birth certificates.)

- It is preferred that families apply for F1 and F2 visas at the same time, but if the spouse and children must apply separately at a later time, they should bring a copy of the student visa holder's passport and visa, along with all other required documents.

How long may I stay on my student visa?

When the applicant enters the United States on a student visa, he or she will usually be admitted for the duration of student status. That means the applicant may stay as long as he or she is a full time student, even if the F1 visa in the passport expires while in the US. For a student who has completed the course of studies shown on the I-20, and any authorized practical training, the student is allowed the following additional time in the US before departure:

- F1 student - An additional 60 days, to prepare for departure from the US or to transfer to another school.

- M1 student - An additional 30 days to depart the US (Fixed time period, in total not to exceed one year). The 30 days to prepare for departure is permitted as long as the student maintained a full course of study and maintained status. An M student may receive extensions up to three years for the total program.

As an example regarding duration of status, if the student has a visa that is valid for five years that will expire on January 1, 2001, and the student is admitted into the US for the duration of his studies (often abbreviated in your passport or on the I-94 card as "D/S"), he may stay in the US as long as he is a full time student. Even if January 1, 2001 passes and his visa expires while in America, he will still be in legal student status. However, if he departs the US with an expired visa, he will need to obtain a new one before being able to return to America and resume his studies. A student visa cannot be renewed or re-issued in the United States; it must be done at an Embassy or Consulate abroad.

Public School

There are certain restrictions on attending public school in the US. Persons who violate these restrictions may not receive another visa for a period of five years.

The restrictions apply only to students holding F1 visas. They do not apply to students attending public school on derivative visas, such as F2, J2 or H4 visas. The restrictions also do not apply to students attending private schools on F1 visas.

The restrictions are :

- Students who attend public high schools in the US are limited to 12 months of study. Public school attendance in the US prior to November 30, 1996 does not count toward this limit.

- F1 visas can no longer be issued to attend public elementary or middle schools (Kindergarten to 8th grade) or publicly-funded adult education programs.

- Before an F1 visa for a public school can be issued, the student must show that the public school in the US has been reimbursed for the full, unsubsidized per capita cost of the education as calculated by the school. Reimbursement may be indicated on the I-20. Consular officers may request copies of canceled checks and/or receipts confirming the payment as needed.

 

K1 Visa - Fiance Visa / Fiancee Visa

A fiancée of a US citizen may apply for a nonimmigrant visa, which allows US entry for 90 days. Within that 90 day period, the US citizen and the foreign fiancée must be married. The fiancée must then apply for permanent resident status in the United States.

K1 Visa Petition

To establish K1 visa classification for an alien fiancée, an American citizen must file a petition with the US Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service). The approved petition will be forwarded by the USCIS to the American consular office where the alien fiancée will apply for his or her visa. A petition is valid for a period of four months from the date of USCIS action, and may be revalidated by the consular officer.

Visa Ineligibility, Visa Waiver

Applicants who (1) have committed serious criminal acts; (2) are likely to become a public charge; (3) have used illegal means to enter the United States; (4) have a communicable disease or a dangerous mental disorder; (5) are drug addicts; or (6) are subject to the J1 two-year foreign residency requirement, do not qualify for a K1 visa, unless a waiver of inadmissibility is granted. The waiver must be approved by the USCIS before the consular officer will issue a K1 visa.

Applying For A K1 Fiance / Fiancee Visa


Upon approval of the K1 petition by the USCIS, the applicant may apply for a K1 visa stamp at the American consular office. A fiancée visa applicant is an intending immigrant and, therefore, must meet documentary requirements similar to the requirements of an immigrant visa applicant. Both the American citizen petitioner and alien beneficiary must be legally able and willing to conclude a valid marriage in the United States. The petitioner and beneficiary must have previously met in person within the past two years unless the USCIS waives that requirement. As soon as the processing of a case is completed and the applicant has all necessary documents, a consular officer will interview the fiancée. If found eligible, a visa will be issued, valid for one entry during a period of six months.

After Entry Into The U.S.

The alien fiancée must apply for work authorization with the USCIS in order to accept employment in the United States. The marriage must take place within 90 days of admission into the United States. Following the marriage, the alien spouse must apply to the USCIS for permanent residency. The applicant is initially granted conditional resident status. After two years, applicant may apply to the USCIS for removal of the conditional status.

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