NIV - B

The B Nonimmigrant Visa

There are two types of "B" nonimmigrant visas:

B-1 Visitors for business

The B-1 visa is available to foreign nationals who wish to enter the US temporarily to engage in business such as contract negotiations, set up a US corporation, consult with clients or business associates, attend trade shows and conventions or board meetings, file or defend against a lawsuit, compete for tournament money (professional athletes). It does not allow the foreign national to be employed or collect a salary in the US.

Personal or domestic servants of returning US citizens or nonimmigrants may be issued B-1 visas as long as the domestic can show that he was employed by the US citizen for at least one year abroad and the US citizen agrees to enter into a contract with the domestic and pay the prevailing wage.

B-2 Visitors for pleasure

The B-2 visa is available to foreign nationals who wish to enter the US temporarily as tourists. Other permissible activities include: visiting friends or relatives, undergoing medical treatment, participating in social organizations, participating in amateur events and even coming to the US to marry a USC with the intention of departing and applying for a visa in his home country.

A domestic partner may qualify for a B-2 visa if the intent is to accompany the principal partner.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.

NIV - E1/E2

The E Treaty Trader/Investor Nonimmigrant Visa

The E visa is a temporary nonimmigrant visa for a foreign national who intends to remain in the US on a temporary basis under a reciprocal treaty of commerce and navigation between the US and his country of nationality for the purpose of (1) engaging in substantial trade between the US and his home country or (2) developing or directing an enterprise in which he has invested a substantial amount of capital.

In determining whether this is the visa for the foreign national the first step is to check whether or not there is a reciprocal treaty of commerce and navigation between his country and the United States. If one does not exist, the E nonimmigrant visa is not an available option.

The second step is to verify that the foreign national or nationals of the treaty country must own at least 50 percent of the business. (22 CFR 41.51(c)(2)).

All treaty traders and investors are admitted for a period of two years and are allowed to apply for extensions in increments of two years for an indefinite period for as long as the business is maintained.

For a list of treaty countries click here.

E-1 Treaty Trader

The E-1 nonimmigrant visa is available for a treaty trader and is often applied for at a US consular post abroad. As a result, an E-2 trader visa application is subject to a great amount of discretion by the reviewing consular officer. As in the case of any visa application, the burden of proof to establish status rests with the applicant.

The E-1 visa is available to a foreign national who is engaged in more than 50 percent trading activity between the US and his country of nationality. Trading activity may include banking, tourism, transportation, consulting services, and insurance.

E-2 Treaty Investor

The E-2 nonimmigrant visa is available for a treaty investor and is often applied for at a US consular post abroad. As a result, an E-2 trader visa application is subject to a great amount of discretion by the reviewing consular officer. As in the case of any visa application, the burden of proof to establish status rests with the applicant.

The E-2 visa is available to a foreign national who has invested or is actively in the process of investing in a US enterprise.

The applicant must demonstrate possession and control of the capital assets, including funds invested. If the investor has received the funds by legitimate means, e.g., savings, gift, inheritance, contest, etc. and has control and possession over the funds, the proper employment of the funds may constitute an E-2 investment. (Note that inheritance of a business does not constitute an investment.) Furthermore, the statute does not require that the source of the funds be outside the United States.

Dependents of an E

The spouse of an E visa holder may apply for work authorization upon her admission into the US as an E dependent by filing Form I-765 with fee.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted clients in all aspects of immigration law for more than 20 years.


E-3 Nonimmigrant Visa

E-3 nonimmigrant visas are available only to Australian nationals seeking employment in a specialty occupation requiring at least a US bachelor's degree or its foreign equivalent. There is a yearly cap of 10,500 new E-3 workers per year. However since the start of this program, this cap has never been reached.

An alien seeking to be admitted in E-3 nonimmigrant classification at a US port of entry or airport must possess a valid E-3 visa issued by the Department of State.

An E-3 visa is valid for no more than two years. However, extensions of stay may be granted indefinitely in increments of no more than two years.

Documents required for E-3 nonimmigrant visa application:

  1. Proof of Australian nationality;
  2. Approved Labor Condition Application (LCA);*
  3. Letter from employer describing the occupation, the alien's anticipated length of stay and salary;
  4. Evidence the alien meets the educational requirements for the position to be filled

*A certified Labor Condition Application (LCA) is required to obtain an E-3 visa at the time of application at a US consular post or as part of a Form I-129 Petition for Nonimmigrant Worker filed with USCIS for a change of status to E-3 or extension of E-3 status.

An LCA for an E-3 may be certified only for a maximum period of two years. Therefore the validity period of the E-3 visa cannot exceed the validity period of the LCA.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted clients in all aspects of immigration law for more than 20 years.

NIV - F

The F (Academic Student) Nonimmigrant Visa

A student who wishes to study in the United States may be eligible to apply for an F-1 student visa abroad or change of status to F-1 if he is already in the US by obtaining an I-20 form from an accredited US educational institution. The spouse and minor children of the F-1 principal may apply for F-2 visa/status. An F-2 spouse is not eligible for work authorization. However the F-2 minor children may enroll in a US school and attend classes until 12th grade. If the F-2 wishes to attend beyond 12th grade, then the F-2 must apply for a change of status to F-1 and obtain her own I-20.

In order to be eligible for an F-1 visa/status, the applicant must:

  1. Intend to pursue a full course of study and depart the US upon completion of her program;
  2. Seek to enter the US temporarily for the sole purpose of pursuing a course of study at educational institution approved by ICE in compliance with the SEVIS program; and
  3. Have sufficient financial support.

The application and supporting documentation are filed with the consular post abroad or if the applicant is in the US, the petition and supporting documentation are filed with the Service Center.

After the F-1 visa is issued, the F-1 may be admitted at least 30 days before the program start date. Upon arrival at a US port of entry, the F-1 will be admitted for "Duration of Status" (D/S) or until completion of the educational program plus 60 days.

The 60-day period can be used to prepare for departure, change status, change educational levels, or change educational institutions.

Optional Practical Training (OPT)

Optional practical training may be pre-completion (when school is in session OPT cannot not be more than 20 hours per week) or post-completion (after completion of all course requirements for bachelor's, master's, or doctoral degree program and course of study).

The DSO must make a recommendation for OPT under SEVIS and must indicate whether employment will be part-time or full-time with the start and end dates.

Duration of post-completion OPT: 12 months

STEM OPT

If the field of study is in the sciences, technology, engineering, or mathematics (STEM), the F-1 student can obtain an additional 17 months OPT for a total of 29 months. However, the F-1's major or dual major must be in the STEM subject. If the STEM subject is only a minor, the F-1 will not qualify for the additional 17 months.

Caveat: The employer of the F-1 OPT must be participating in E-verify and agree to report the F-1s departure within 48 hours.

It is the responsibility of the STEM F-1 to report to the DSO every six months.

Effect of unemployment

The F-1 cannot be unemployed for 90 days or more during the 12-month period of OPT or 120 days or more during the 29-month period of STEM OPT.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.

NIV - H

The H Nonimmigrant Visa

There are several types or categories of H visas. The following description is limited to H1B specialty workers.

The H1B visa is available to a foreign national who is coming to the US temporarily to work in a specialty occupation, or as a fashion model of distinguished merit and ability, or a person providing services to the Department of Defense cooperative research and development project.

Although the H1B process starts with the US company filing a petition, an H-1B petition for a professional or specialty worker or fashion model cannot be approved without an underlying approved Labor Condition Application (LCA).

The Labor Condition Application (LCA)

An LCA is a document filed with the US Department of Labor (DOL) containing attestations from the H1B employer that: it will pay the H1B worker the prevailing wage or higher for the position, it is providing the H1B worker with the same benefits as all other workers in the work place so that filing the petition will not adversely affect the wages and working conditions of other US workers at the work site, it has notified all workers of the employer's intent to file an H-1B petition in support of a the foreign worker by two 10-day internal postings, and there has been no work stoppage in the area of employment.

REASONABLE COST OF RETURN FARE IN THE EVENT OF TERMINATION PRIOR TO EXPIRATION OF H1B PETITION

In addition to preparing and maintaining a public access file and obtaining an approved LCA from the Department of Labor, the employer must agree that in the event the H1B worker is terminated prior to the natural expiration of his H-1B petition validity period, the employer shall be responsible for paying the worker's return air fare to his home country.

However, if the H1B worker voluntarily terminates his employment before the H1B petition expires, then the petitioning employer is no longer liable for the H1B worker's return airfare.

COMPLIANCE WITH EXPORT CONTROLS

USCIS requires all new H-1B, L-1 and O-1 employers of nonimmigrant workers to attest that they have reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and have determined that:

  1. A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person, or
  2. A license is required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

PAYMENT OF SALARY AND NO BENCHING

The H1B employer must pay the stated wage within 30 days of the H1B's admission into the US or 60 days from the H1B employee's change of status if already in the US. An H1B employer must pay for the H1B petition process.

An employer cannot "bench" an H1B employee (regardless of whether the H1B worker is a full- or part-time employee) because of lack of work.

H1B COSTS/FEES

As the petitioner, the employer is required to pay for the costs of the petition process including attorney's fees and filing fees.

The employer cannot seek reimbursement for these costs. To do so would be in violation of the law and the employer would be subject to penalties.

Dual Intent

An H1B worker may continue to maintain nonimmigrant status and have a PERM labor certification or visa petition pending or approved on his behalf.

Admissions and extensions

The H1B petition maybe approved for up to three years and cannot exceed the period on the underlying approved LCA. For DOD projects however, the petition may be approved for up to five years.

There is a six-year maximum period for H1Bs. Periods spent outside the US during the H1B validity period may be recaptured. If the H1B worker spends one year outside the US, the six-year maximum period restarts.

An H1B worker may extend his stay beyond the six years if a PERM labor certification application or I-140 visa petition has been filed on his behalf and remains pending for 365 days or more. If this is the case, the H1B worker may extend his H1B status in increments of one year at a time for as long the PERM labor certification or I-140 visa petition remains pending. Sec. 106(a).

An H1B worker may extend his stay beyond the six years if he has an approved I-140 visa petition in his name. If this is the case, the H1B worker may extend his H1B status in increments of three years. Sec. 104(c).

Dependents of H1B workers

The spouse and minor children of an H1B are accorded H4 status. Although the H4 minor child may attend school, the H4 spouse cannot work unlike the spouse of an L or E.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.

NIV - K

The K (Fiance) Visa

The fiance of a US citizen may be eligible to apply for a K-1 fiance petition at a US embassy or consular post abroad. The minor child of the K fiance may apply for a K-2 visa.

A fiance is someone who seeks to enter the US in order to marry the US citizen petitioner within 90 days of being admitted into the US as a "K-1".

Before a fiance can apply for the K visa, the US citizen must file Form I-129F petition with USCIS with supporting documentation proving that:

  1. He is a US citizen;
  2. He has met the K fiance within two years of filing the petition; and
  3. Both he and his fiance are free to legally marry.

If the US citizen petitioner has a criminal record, he is required to provide certified copies of all court and police records showing the dispositions of all convictions.

The petition and supporting documentation is filed with the Service Center. Once approved, the petition remains valid for four months. It can be revalidated for another four months.

The approved petition is sent to the National Visa Center (NVC). NVC transfers the petition to the embassy or consulate abroad for final disposition.

After the K visa is issued and the she is admitted into the US, the marriage has to occur within 90 days of entry.

Only after the marriage can the fiance apply for adjustment of status to permanent residency. If the adjustment is approved, the fiance will be granted conditional resident status, which will be valid for only two years. Ninety days before the expiration date of conditional status, the US citizen and spouse must file Form I-751 Application to Remove Conditions. Failure to file Form I-751 will result in the automatic termination of conditional status. Filing Form I-751 will automatically extend conditional status for one year. Upon approval of the Form I-751, the spouse will be granted permanent resident status.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted clients in all aspects of immigration law for more than 20 years.

NIV - L

L1 Intracompany Nonimmigrant Visa

Individual L-1 petition

An L1 visa is a temporary nonimmigrant visa for a foreign employee who has been employed abroad for at least one year in the three years immediately preceding the filing of the petition at a foreign company that is the affiliate, subsidiary, branch or parent company of a US company.

L1A for Executive or Manager

In order to qualify for an L-1A visa, the applicant must meet the following requirements:

Who is an executive?

Who is a manager?

A manager is someone who manages the organization, department, subdivision, function or component of the organization;

Caveat: first line supervisors are not considered managers unless the employees they supervise are professional.

The maximum period of stay for an L-1A is seven years.

L1B for Special Knowledge Worker

To be eligible, the L1B must have special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has advanced level knowledge of processes or procedures of the company. Where the specialized knowledge is of a company product, the knowledge must be "noteworthy" or "uncommon".

The maximum period of stay for an L-1B is five years.

Blanket L-1 Petitions

A blanket L petition is available for a US company and other qualifying organizations that have:

  1. Been doing business in the US for at least one year;
  2. Successfully filed at least 10 "L" petitions for managers, executives, or specialized knowledge professionals within a 12-month period OR have combined sales of at least $25 million OR have at least 1,000 employees in the US; and
  3. Engaged in commercial trade or services

The US company may file a blanket petition which if approved, would allow its L workers to apply for an L visa directly with the US embassy or consulate abroad. The L visa applicant may apply as a manger, executive or specialized knowledge professional.

L2 Dependents

The spouse of an L1 worker may apply for work authorization after she is admitted into the US as an L2 by filing Form I-765 with fee. The spouse and minor children of an L1 can remain in the US for as long as the L1 worker's validity period.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted clients in all aspects of immigration law for more than 20 years.

NIV - TN

TN Visas

The North American Free Trade Agreement (NAFTA) facilitates the expeditious entry of temporary business visitors (B-1s), traders and investors (E-1s and E-2s), intracompany transferees (L-1s), and professionals (TNs) who are citizens of Canada and to a more limited extent, citizens of Mexico.

INA Section 241(e) provides that Canadians and Mexicans seeking temporary entry into the US to engage in business activities at a professional level may be admitted under NAFTA if they fall within one of the professions and possess the educational and professional credentials listed in Appendix 1603.D.1. to Annex 1603 of NAFTA.

Therefore, if the listed profession requires a degree, an equivalency will not do. If a license is required, the applicant must possess the license. A TN cannot qualify based on a listed occupation with the intent to be self-employed in the US. Simply put, a TN must work for a US business owned or controlled by other than the TN.

TN status can be granted for up to three years with unlimited extensions.

Application process for Canadian citizens

Application is made at a Class A port of entry or a US pre-flight inspection (PFI) station. The applicants must submit:

If the TN is already in the US and wishes to extend his status without going to the border, he may file Form I-129 at the Nebraska Service Center.

Upon approval of the application, the TN officer will issue a Form I-94 card to the TN stamped as a "multiple-entry" and valid for up to three years. Dependents traveling with the applicant will be granted "TD" status for the same period. Dependents cannot work in "TD" status but dependent children in "TD" status may be enrolled in a US school.

Application process for Mexican citizens

The US employer files Form I-129 at the Nebraska Service Center with the filing fee and:

Upon approval of the TN application, the Service Center will issue an approval notice valid for up to three years. The applicant will use the approval notice to apply for the TN visa. Once issued, the applicant will present the TN visa with the original approval notice at the border and he will be issued a "multiple entry" I-94 card authorizing him to work for the US company for up to here years. Dependents traveling with the applicant will be granted "TD" status for the same period. Dependents cannot work in "TD" status but dependent children in "TD" status may be enrolled in a US school.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted clients in all aspects of immigration law for more than 20 years.