Michigan Immigration Attorneys - Main Non-immigrant Classifications And The Requirements For Each

Main Non-immigrant Classifications And The Requirements For Each

Non-immigrants are individuals present in the U.S. for a limited time and for a limited purpose. The duration and purpose are determined by the type of non-immigrant visa that the person holds.

A list of the most common non-immigrant visas is as follows:

Also, below are brief descriptions of some of the most salient issues in each category:

A. Business Visitor (B-1)

Business visitors who are granted what is generally known as a B-1 visa must at least satisfy the following:

The visitor intends to enter the United States for a limited period of time at the end of which he or she will depart the country;
The visitor has a foreign residence that he or she has no intent to abandon;
The visitor has sufficient financial means to avoid being involved in any type of unauthorized employment; and,
The visitor will be involved only in legitimate activities compatible with the B-1 visa.

The critical issue for businesses and international companies is the definition of "legitimate activity." As a rule of thumb, most acceptable legitimate activities for a business visitor are those which do not constitute gainful employment, or that may displace a domestic U.S. worker. The State Department has listed guidelines for what constitutes legitimate activities, which include:

Soliciting of sale on behalf of a foreign company, negotiating contracts, or taking orders for work that will be performed outside the United States;
The procuring or purchasing of goods for use outside the U.S.;
Consultation with business associates;
Attendance at seminars, conferences, or conventions;
Independent research by foreign business entities;
Activities related to the servicing of contracts entered into by foreign companies;
Litigation work;
Professionals or investors who intend to either find a professional job in the United States or to start an investment in the U.S.; and,
Persons intending to open a branch in the United States for a foreign entity (this provision does not include working for such a branch without first getting another proper nonimmigrant visa, called the L visa).

The above list is not necessarily exclusive of other activities that may be acceptable. Generally, if the activity does not involve a typical 9-5 job, is being paid for by a foreign employer, is of an international nature, and does not involve domestic gainful employment, then it may be suitable for a B-1 Visa. In doubtful cases, however, an immigration attorney should be consulted.

Business visitors are admitted for the duration of their intended activity, up to six months. Extensions may be available, generally for one six-month extension only.

The traditional method for obtaining a B-1 Visa is for the business visitor to apply at a U.S. embassy. However, the United States allows nationals from certain countries, particularly those in Western Europe, to enter the U.S. without first obtaining a visa from a U.S. embassy. All conditions of the B-1 Visa still apply; further, the entry is limited to 90 days and generally can be neither extended nor changed to another non-immigrant category.

B. The Temporary Professional Workers (H-1B)

Professionals desiring to work in the United States may apply for what is called an H-1B Visa. There are other potential visas for professionals, but the majority are classified under the H-1B Visa.

The H-1B Visa is a temporary work visa available for persons qualified as professionals who are hired to work in specialty professional occupations. This visa is popular because the term "professionals" has been defined loosely to include many persons with a Bachelor's Degrees (although not all degrees qualify for the H-1B). An advantage of this visa is that it has a lengthy duration (initially three years, but it may be renewed for an additional three years for a maximum of six years). It may take anywhere from a few days to four months to process and it allows for a dual intent (i.e. it does not exclude an alien who also has an impending immigration petition). This petition requires a job offer from a U.S. company and a petition, as well as a Labor Condition Application (LCA), verifying that the individual is being paid at least the prevailing wage.

The H-1B is available to graduates of foreign universities, provided the degree is equated to that of a U.S. degree. It is also available to an individual without a degree, as long as that person has experience in the field and the offered position is professional in nature. The H-1B is available for a wide range of activities, as long as it is demonstrated to the USCIS that the duties require a minimum of a four-year degree (or its equivalent) to perform.

C. Intra-Company Transferees (L-1A or L-1B Visas)

The L non-immigrant visa is a vital tool for multi-national corporations who wish to transfer key foreign employees into the United States. It is also useful for foreign entities that wish to send employees to the United States to open a new branch office or subsidiary. A U.S. entity may petition for an L visa on behalf of an alien who has been employed for one continuous year of the three years preceding the application in an organization with a qualifying relationship to the U.S. entity, provided that the alien's previous and proposed U.S. positions involve managerial, executive, or specialized knowledge duties. The spouse and minor children of the L non-immigrant are permitted to accompany the alien in a derivative status. Work Authorization is available to them as well.

To qualify for an L visa, there are various requirements of both the alien and the petitioning entity. Among these, three issues predominate: the previous employment of the alien, the corporate relationship between the U.S. and foreign entity, and the classification of the alien's intended employment in the U.S. and previously with the foreign entity as either a manager, executive, or an employee with specialized knowledge.

A critical requirement is that the United States and the foreign entity must be legally related in order for the transfer to take place. There are certain clear-cut allowable relationships, such as: parent/subsidiary, branch office, affiliates (subsidiary/subsidiary), and joint ventures. Where ownership of both entities is not unified, it must be demonstrated that the ratios of equity ownership interests in the organizations are approximately the same. If similar ownership of both entities cannot be demonstrated, it is still possible to demonstrate common control of the organizations to qualify for an L visa. These relationships are equity based. Non-equity relationships, such as common directorships, do not create a qualifying relationship.

L visas are also available for an individual to come to the U.S. to open a new office. USCIS imposes certain additional requirements to transfer a new entity in the United States. INS requires evidence of physical premises capable of commencing operation. This may then be renewed with updated evidence of its continued viability.

The alien must come to the U.S. to occupy a managerial or executive position (L-1A), or a position utilizing specialized knowledge (L-1B). Managerial duties may entail managing others who hold supervisory positions or professionals. In addition, a manager may also manage an essential function of the entity, and not necessarily other employees. Executive duties entail establishing goals and policies, exercising discretion over the corporate decision making process, etc. over the entity. The executive and managerial qualities in a position often overlap. The L-1A visa confers the same benefits with the same terms and conditions to either a manager or executive.

An L-1B is based upon specialized knowledge, which is generally satisfied if the alien has knowledge not readily possessed by others regarding the entity's products and their applications in the international market, or has an advanced level of knowledge of processes and procedures of the company.

L visa holders are allowed "dual intent," meaning they may also pursue permanent status. Those applicants are allowed to work temporarily in the U.S. as a non-immigrant, while at the same time they may seek to remain permanently.

The L non-immigrant visa, while still a temporary visa, allows the alien a significant amount of time to work in the United States. Those utilizing the L-1A visa (for executives or managers), may remain in the United States up to seven years, while those utilizing the L-1B visa (for those with specialized knowledge) may remain up to five years.

In addition, major U.S. corporate entities with a work force of at least 1,000 employees, annual sales of at least $25 million, who are engaged in commerce or trade, and have previously applied for at least ten L visas within a preceding 12-month period may qualify for a "blanket" L-1 petition. A corporation may utilize this for aliens without the need to submit corporate information, entity relationships, etc. for each alien, saving a great deal of time and expense.

Applications for an L visa require substantial documentation. The company must demonstrate the relationship between the U.S. and foreign branch, as well as the qualifications of the individual.

Canadians may utilize an expedited process provided by the North American Free Trade Agreement, under which a petition may be presented at most border crossings and airports. These require the same substantive information as any other L visa, but allows for quicker processing. These are typically adjudicated on the same day.

D. Treaty Traders and Investors (E-1 or E-2 visas)

The Treaty Trader or Investor's visa is generally known as the E-Visa. Traders are classified as E-1, while investors are classified as E-2. The E-Visa is available generally only when a treaty of trade and commerce exists between the United States and the foreign country. The E-Visa allows investors, owners, managers, and employees of foreign businesses to work in the United States, provided that they are working in an enterprise which is either involved in trade between the United States and a foreign country or that represents a major investment by the individual or foreign company in the United States.

The critical first consideration is to insure that the enterprise employees brought in under the E-Visa are of the same nationality as the foreign country. In the case of private companies, the majority of the enterprise's owners must be citizens of the foreign country. In the case of publicly traded entities, the location of the principal stock exchange where their shares are traded normally reflects the citizenship of the company.

The above requirements apply for both traders and investors. However, additional special rules apply separately for each, depending on whether the alien is applying for an E-1 or an E-2 Visa. Applicants for the E-1 Visa must show that the enterprise is engaged in substantial trade between the U.S. and the foreign country, and that said trade is the principal activity of the enterprise. Investors must show that they are involved in an active, substantial investment in the United States, where the investor is at risk for losing his investment. Applications under either category require substantial documentation.

E visas are generally granted for a period of five years, with two year status increments. (This also varies depending on the country of origin.) The E visa can be renewed indefinitely.

E. Exchange Visitors (J-1 visa)

Exchange visitor status, normally referred to as J-1 status, allows aliens to enter the United States to participate in programs which will provide them with training and experience in various fields. The policy is based on the 1960 Mutual Educational and Cultural Exchange Act. The purpose of the act was to assist nationals of other countries in developing skills in certain areas that would be useful when they return to their countries. It also promotes cultural exchange and understanding. Categories covered by the program include trainees, teachers, exchange students, scholars, professors, international visitors, foreign medical graduates, au pairs, and a few other categories.

An exchange visitor must be sponsored by a designated exchange visitor program. Numerous private organizations have been designated as sponsors of various exchange visitors. The programs are administered by the Department of State.

Aliens entering under the J program are granted periods of stay in the United States lasting from a few weeks up to a few years, depending on the category. Dependents, including spouses and children, are allowed into the country and granted J-2 Visas. Dependents are allowed to work, subject to certain restrictions. J applicants typically have to prove to the U.S. consulate that they have a foreign residence that they do not intend to abandon--in other words, J exchange visitors are not entitled to a dual intent. Often, J-1 visitors are subjects to the two-year foreign residency requirement and require a waiver. Application of the requirement depends on the individual's country of origin and the skills of the individual at the time of application.

F. Temporary Skilled and Unskilled Workers (H-2A and H-2B)

This category is generally known as the H-2 Visa category. It includes professionals who might not otherwise qualify for the H-1 Visa, as well as skilled and unskilled workers. It covers aliens who are coming temporarily to the United States to occupy a temporary job, provided that the Department of Labor certifies that there are no qualified American workers available for the position. The labor certification is obtained through an expedited procedure. This category may create possibilities for occupations not readily covered elsewhere.

G. Students (F and M visas)

Alien students may be granted F or M visas to study in the United States. This allows them to remain in the U.S. until completion of their studies.

Alien students are allowed to perform practical training, both prior to and after graduation. An individual may hold up to one year of Curricular Practical Training during school, and one year of Optional Practical Training after graduation. Typically, the employment must be related to the students' studies. The INS also requires that the students must have been in an F-1 student status for nine months prior to application.

H. Temporary Trainees (H-3 visa)

This category is generally known as H-3. This allows for training of an individual by a U.S. company. The petitioning entity providing the training must provide the INS with details of the training, together with an explanation as to why such training is not available in the alien's country. The application should demonstrate that any employment will be incidental to the training. The H-3 status may be granted for up to two years.

I. Canadian Professionals Under NAFTA

The North American Free Trade Agreement ("NAFTA") allows an expedited procedure for certain Canadian and Mexican professionals to enter the United States for a one-year duration, which can be renewed indefinitely. The intended U.S. activity must be covered by what is called Schedule 2, and the alien must possess the necessary credentials indicated on said schedule. There are several advantages for Canadians or Mexicans to utilize the trade NAFTA Visa. First, the process is extremely expedited, and once the petition is prepared with the supporting documents, the trade NAFTA Visa can be given at the border after a review that may sometimes last less than an hour. There is no outside limit for the number of years an alien can remain in trade NAFTA status, and there is no annual ceiling on the number of NAFTA visas issued.

J. Extraordinary abilities, athletes and artists (O and P)

Other business categories include the O-Visa, given to aliens with extraordinary ability in the sciences, education, business, and athletics, as well as in the motion picture or television industries. The P-Visa is given for athletes competing individually or as part of a team; the P-2 Visa is given to artists and entertainers entering the U.S. for a reciprocal exchange program between a foreign-based and a U.S.-based organization; and the P-3 covers artists and entertainers, including groups who will perform under a program that is culturally unique.

K. Other Non-Immigrant Business Categories

There are several other non-immigrant business categories. For example, Mexicans are also covered by the North American Free Trade Agreement, but on a much more restrictive basis. There are a number of limitations; for example, since the application has to be submitted to Lincoln, Nebraska, it cannot be processed in an expedited manner at the border.

There are other miscellaneous categories, including diplomats and NATO personnel, aliens in transit, crewmen, representatives of international organizations, media representatives, religious workers, alien witnesses, etc.

Also, a limited number of foreign nurses (500 per year) may be allowed to work in qualified hospitals located in underserved areas. For a hospital to be qualified, it must be located in an area with a shortage, have at least 190 acute care beds, have a Medicare population of at least 35% and Medicaid population of at least 28%. There will also be substantial attestation requirements designed to protect U.S. workers and in any case, such hospitals will not be allowed to hire more than 33% of their total registered nursing pool with this category. The category is currently being labeled the H-1C program.