A foreigner’s ability to enter the United States of America is no longer a simple task. Our immigration laws are not only very complex but are always evolving and changing. This informal booklet has been prepared for corporations, investors, professionals, businessmen and their families who desire to obtain visas to enter the United States either on a temporary or permanent basis and to introduce them to general points of United States Immigration laws.
Facts About Visa Availability
Under United States Immigration laws, an alien is defined as any individual who is neither a United States citizen by birth or naturalization. All aliens seeking to enter the United States are classified as either immigrants, those who desire to enter on a permanent basis, or non-immigrants, those who desire to enter on a temporary basis.
I. Immigrant Visas
The two principal classifications under which immigrant visas are granted are the Family Based and Employment Based Preference Systems.
1. Family Based Preference System
- Immediate Relatives. Within the Family Based System, immigrant visas are made available without any numerical limitation to the spouses, children, parents and certain widows and widowers of United States citizens
- First Preference. The Family/First Preference includes unmarried sons and daughters of the United States citizens and is allocated 23,400 immigrant visas, plus spill down from Fourth Preference
- Second Preference. The Family/Second Preference includes:
- The spouses and minor children of permanent resident aliens and is allocated at least 77% of the 114,200 immigrant visas available under this preference category plus spill down from the First Preference; and
- The unmarried sons and daughters of permanent resident aliens (over the age of 21) and is allocated the balance of the immigrant visas allotted to this preference category.
- Third Preference. The Family/Third Preference includes the married sons and daughters of United States citizens and is allocated 23,400 immigrant visas plus spill downs from First and Second Preference
- Fourth Preference. The Family/Fourth Preference includes the brothers and sisters of United States citizens and is allocated 65,000 immigrant visas, plus spill downs from First and Third Preferences
2. Employment Based Preference System
The Employment Based Preference System of the Immigration Act of 1990 replaces the Third and Sixth Preferences of the previous system with the following five preferential categories:
Employment Based First Preference
The Employment/First Preference category for which a labor certification is not required is allocated 40,000 visas, plus all used Special Immigrant and Employment Creation (investor) visas. Three sub-groups within this category include:
- Aliens with extraordinary ability in the sciences, arts, education, business or athletics;
- Outstanding professors and researchers and;
- Certain multinational executives and managers.
Employment Based Second Preference
Professional with Advanced Degrees or Aliens of Exceptional Ability.
The Employment/Second Preference category for which a labor certification is required is allocated 40,000 visas plus any unused visas from the Employment/First Preference category. Two sub-groups within this category include:
- Members of the profession with advanced degrees or the equivalent; or
- Aliens of exceptional ability in sciences, arts or business (no specific degree required.)
Employment Based Third Preference
Skilled Workers, Professional and Other Workers
This Employment/Third Preference category for which a labor certification is required is allocated 40,000 visas plus any unused visas in the Employment/First or Second Preference. Three sub-groups in this category include:
- Skilled workers (requiring at least 2 years training or experience)
- Professional (baccalaureate degree and professional job)
- Other workers (unskilled labor). However, only 10,000 visas per year may be allocated to the third sub-group called “Other Workers.”
Employment Based Fourth Preference
Certain Special Immigrants
This Employment/Fourth Preference includes Special Immigrants such as certain religious ministers, certain overseas employees of the U.S. Government, former employees of the Panama Canal Company, certain foreign medical graduates and retired employees of international organizations and their families and is allocated 10,000 immigrant visas per year.
Employment Based Fifth Preference
Employment Creation (Investors)
This Employment/Fifth Preference is allocated 10,000 immigrant visas per year for aliens who invest one million dollars in a United States commercial enterprise which will benefit the United States economy and will create full time employment for not fewer than ten United States citizens or lawful permanent residents (other than the investor or his immediate family).
II. Non-Immigrant Visas
1. General Classifications
Aliens seeking temporary admission to the United States as non-immigrants are not subject to numerical restrictions. Non-immigrants are, however, subject to limitations on the duration of their stay in the United States and are subject to employment restrictions. There are fourteen major non-immigrant classifications.
2. Visa Categories and Their Designations Include:
|CLASSIFICATION||PURPOSES||MAXIMUM INITIAL ADMISSION PERIOD|
|A-1||Ambassador||Duration of Status|
|A-2||Other foreign government officials||Duration of Status|
|A-3||Employee of A-1 or A-2||Up to 3 years|
|B-1||Temporary visitor for business||Up to 1 year|
|B-2||Temporary visitor for pleasure||Up to 1 year|
|C-1||Transit through U.S.||29 days|
|E-1||Treaty Trader||1 year|
|E-2||Treaty Investor||1 year|
|F-1||Student||Duration of Status|
|G-1 or G-4||International Organization Representative Purposes||3 years|
|H-1A||Professional Nurses||Up to 3 years|
|H-1B||Alien in Specialty Occupations||3 years|
|H-2A||Temporary Agriculture Labor or Services||Usually up to 1 year|
|H-2B||Temporary Non-Agricultural Labor Services||Usually up to 1 year|
|H-3||Trainee||18 months – 2 years|
|I||Representatives of Media Information||1 year|
|J-1||Exchange Visitor||1 year|
|K-1||Fiancee of a U.S. citizen||90 days|
|L-1||Intra-company Transferee||Up to 3 years|
|M-1||Vocational Student||Duration of Status|
|NATO Employee||NATO Employee||Duration of Status|
|O-1||Extraordinary ability demonstrated by sustained national or international acclaim||Up to 3 years|
|O-2||Alien accompanying or supporting an O-1 Alien||Up to 3 years|
|O-3||Alien spouse or child of an O-1 or O-2 Alien||Up to 3 years|
|P-1||Athletes and Entertainers||Up to 5 years|
|P-2||Artist or Entertainer participating in a Reciprocal Exchange Program||Up to 1 year|
|P-3||Artist or Entertainer in a culturally unique program||Up to 1 year|
|Q||International Cultural Exchange Visitor||Up to 15 months|
|R||Religious Workers||3 years|
|S||Snitch Visa � Individuals who cooperate with U.S. Government|
3. Discussion of Specific Non-Immigrant Visa Categories
The non-immigrant visas most often utilized by aliens seeking to temporarily enter the U.S. are:
Temporary Visitor for Business (B-1)
Under a B-1 visa, a visitor may be admitted to the United States to conduct activities of a professional or commercial nature, which include contract negotiations, attendance at conferences and participation in litigation, provided the salary is paid abroad.
Temporary Visitor for Pleasure (B-2)
The majority of foreign visitors to the U.S. are granted B-2 visas. The purpose of this visa is to vacation in the U.S., visit family and friends and obtain medical treatment. To obtain this visa, the alien must prove to the American Consulate abroad that he maintains a residence abroad. This can be demonstrated through ownership of real estate, employment letters and evidence of strong family ties. The prospective visitor must also show that he has sufficient funds to maintain himself for the duration of his stay.
Treaty Traders (E-1)
An individual may be eligible for Treaty Trader status if the following qualifications are met:- Treaty of Commerce, Friendship and Navigation or similar agreement exists between the U.S. and the Alien’s country.- The applicant is a national of the treaty country.- The applicant is coming into the U.S. to carry on substantial trade between the U.S. and the country from which he is a national or is employed by a company which is principally owned by nationals of the treaty country and the company will be engaged in substantial trade with the U.S. The trade does not have to be substantial in dollar amount although it does have to be substantial in volume. The concept of trade for purposes of this visa can include the exchange, purchase, or sale of goods or services.- The majority of the trade is between the U.S. and the treaty country.
– The applicant’s duties will be supervisory in nature or he will provide essential services to the employer’s enterprise.
Treaty Investors (E-2)
An individual may be eligible for treaty investor status is the following conditions are met:- A Treaty of Commerce, Friendship and Navigation or similar agreement exists between the U.S. and the alien’s country.- The applicant is a national of that country.- The applicant must be coming to the U.S. to direct and develop the operations or be employed in a managerial capacity or be a highly skilled technician.- The majority of the company is owned by nationals of the treaty country.
– The investment must be substantial in nature, actual and active, and must create job opportunities for U.S. workers. There is no fixed dollar amount for determining substantiality, rather, it is determined by the nature of the investment
To be eligible for a student visa, the alien must pursue a full course of study in a school which has been approved by the U.S. Immigration and Naturalization Service. The alien must also demonstrate that he has sufficient funds to support himself throughout the duration of his status. Additionally, the prospective student must have sufficient understanding of the English language, although a school may make its own arr angements in this regard.
Aliens in Specialty Occupations (H-1B)
An H-1B visa may be accorded to an alien who is coming temporarily to the United States to perform services in a Specialty Occupation, as that term is defined by the Immigration and Naturalization Service. This category generally includes those occupations which require theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s degree or higher in the specific specialty as a minimum for entry into the occupation in the United States. The alien must possess full state licensure to practice in the occupation, if required, completion of the required degree, or experience in the specialty equivalent to the degree and recognition of expertise in the specialty.
Persons to Perform Temporary Service or Labor (H-2)
This category includes persons who are skilled, semi-skilled or un-skilled, provided a labor certification can be obtained from the Department of Labor to establish that there is a shortage of such workers in the United States. To obtain approval of an H-2 petition, the beneficiary’s services must be temporary in nature in that such services will be utilized only for a specified duration. Additionally, the employment must be of seasonal or temporary nature.
Alien Trainees (H-3)
This category is designated for an alien who is coming to the U.S. to receive training which cannot be obtained in his own country. The training may be in the area of industry, agriculture, commerce, communication, finance, government, transportation and the professions. The U.S. employer need not be benefited by the training and the source of any compensation received by the alien is not material. Incidental production is permitted, provided that no American workers are displaced. The training must not be for the purpose of staffing U.S. companies. H-3 status will only be accorded if the benefits of the training can be utilized in a foreign country.
Exchange Visitors (J-1)
Aliens who come to the United States to participate in exchange visitor programs and who are bona fide students, scholars, trainees, teachers, professors, research assistants, specialists or leaders in a field of specialized knowledge or skill are eligible for the J-1 visa. Many J-1 visa holders are subject to a two-year foreign residency requirement upon completion of their J-1 stay in the United States.
Intra-company Transferees (L-1)
To be eligible for an L-1 visa, the following requirement must be met:
- The alien must have been employed abroad for one year during the three years immediately preceding the application by a company affiliated with the prospective employer.
- The duties of the alien were executive or managerial in nature or require specialized knowledge.
- The alien is being transferred to a branch office, subsidiary or affiliate in the U.S.
- The alien will be employed in a position which is executive, managerial or one which involves specialized knowledge.
Vocation Student (M-1)
The M-1 visa is similar to the F-1 and is available to aliens who seek to enter the United States to pursue a full course of study at a vocational school.
Extraordinary Ability (O-1)
An O-1 visa may be granted to an alien of extraordinary ability in the science, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim but only if it is determined that the alien’s entry in the United States would substantially benefit prospectively the United States. An O-2 visa may be issued to an alien who seeks to enter the United States temporarily and solely for the purpose of accompanying and assisting in the artistic or athletic performance of an alien who is admitted under O-1 status.
Athlete/Entertainer (P-1, P-2)
This category is designed for aliens who perform as athletes, individually or as part of a group or team at internationally recognized level performance and seek entrance to the United States temporarily for the purpose of performing at such an event with respect to their specific athletic competition or performance.A P-2 visa may be issued to aliens who perform as artists or entertainers individually or are part of a group or are an integral part of the performance of such a group and seek entrance to the United States temporarily and solely for the purpose of performing as such an artist or entertainer with such a group under a reciprocal exchange program which is between an organization or organizations in the United States which provide for temporary exchange of artist and entertainers.
A P-3 visa may be granted to aliens who perform as artists or entertainers individually or as a part of a group and seek to enter the United States temporarily and solely for the purpose of performing as such an artist or entertainer with such a group under a program that is culturally unique.
Business Trainee (Q)
This visa category is available for an alien having a residence in a foreign country which he has no intention of abandoning and who is coming to the United States for a period not be exceed fifteen months as a participant in an international exchange program for the purpose of providing practical training, employment and sharing of the history, culture or tradition of the country of the alien’s nationality and would be employed under the same wages and working conditions as domestic workers.
This brief survey only serves to highlight several ways in which a foreigner may enter the U.S. on a permanent or temporary basis. As there are many ongoing changes to U.S. Immigration Law, it is important to have current and accurate information.
Our firm would be pleased to answer any specific questions you may have with respect to current U.S. Immigration laws and to assist you in any short-term or long range immigration planning.