US Visas and Consular Processing
One common misunderstanding is “what is a visa” ? The problem lies in the fact that an immigrant visa (a.k.a “green card”), a visa to enter the U.S. and a “visa” stamped in one’s passport are three completely different things. A visa is one’s passport (now a biometric card) allows a foreign national to apply for entry into the United States at a port-of entry (airport, designated border crossing etc…). Most commonly, a person interviews at a consulate, he/she is issued a “visa” which really is nothing more than a “pass” to board a flight, or to appear at a border port-of-entry to ask for a temporary visitor visa. Upon successful application for a “visa” to enter the U.S., that person is given an I-94 card, which is really the visa.
After the successful application for a visa to enter the US, that person is given an I-94 card which is actually the visa. That card will indicate the amount of time the person is authorized to stay in the United States. The visas are divided into groups: immigrant visa and non-immigrant visas. The main difference between the two groups is that on an immigrant visa, the person intends to stay in the United States to live, work, and stay indefinitely. A non-immigrant visa is for people who want to come to the United States for a temporary time and then return to their native country.
U.S. Consulates process immigrant visas and non-immigrant visas. All foreign nationals seeking a temporary visa, unless from a visa-waiver country, are required to apply for their visa prior to seeking admission into the United States. The term “consular processing” refers to the process of seeking residency (or a “green card”) from outside of the U.S. Thus, one enters the United States as a fully adjusted permanent resident. For spouses of U.S. citizens, this is probably the quickest way to obtain residency. For spouses of U.S. Citizens or legal permanent residents who marry a foreign national who entered the U.S. without inspection (“E.W.I.”), this is the only way to obtain residency (if the spouse is not in removal proceedings), since a waiver of inadmissibility would have to be adjudicated at a consulate. Beginning March 4, 2013, provisional waivers of unlawful presence began enabling certain applicants to apply for the waiver without leaving the United States. I emphasize this because we deal with this issue quite often.
Many U.S. citizens marry someone who has entered illegally and now want to “get the papers” for their spouse. Unfortunately, many people mistakenly believe that marriage to a U.S. citizen confers either automatic citizenship or a right to a “green card”. The issue becomes even more complicated if the spouse has been previously deported. In the case of a single entry without inspection, the spouse will be unable to obtain a “green card” without what is known as a “waiver”. The consulate will be balancing the hardship to the U.S. citizen and family against the undesirability of allowing the (law-breaking) foreign spouse. Only an experienced immigration attorney ought to handle a waiver case.
There is a high success rate at certain consulates for those seeking these waivers, which is good news. No matter what: DO NOT FILE ANYTHING without first seeking the advice of an immigration attorney with experience with inadmissibility waivers. In the case of someone previously deported, there are certain bars of admissibility which may not be waived for 10 years. It may not be advisable to leave the country for this reason. Additionally, there might be a chance to adjust status to a permanent resident from within the U.S., depending upon which federal circuit the family resides in. Again, an immigration lawyer is needed to sort all of this out. In addition to the “permanent bar”, there is a federal criminal re-entry statute which could cause a spouse of a USC to end up in a federal prison before his/her deportation from the United States.
This is the most commonly issued visa category. The purpose of entering the U.S. is for tourism, recreation, or to make social visits of friends and relatives. However, coming to “visit” one’s spouse or paramour is a common reason for denial, since such a visit is probably not “temporary”. The applicant needs to prove that his/her visit is not permanent, that he/she has a reason to return. This office frequently prepares clients for consular application of the B-2 visa. There are certain things consular officers really look for in determining one’s intent to return.
There is a presumption that a foreign national intends to NOT return when applying for the B-2, and it is the applicant’s burden to overcome the presumption. Being young, single or with little or no significant connection (or financial resources) to your home country presents a difficult case. It is highly likely that without a convincing application with supporting documentation this person would not easily obtain a visitor’s visa.
Las Visas-K, las visas conyugales y de prometido The K-Visas, spousal and fiancé visas are a hybrid: the person plans to come to the U.S. to apply to remain permanently as an LPR. With the K-1 Visa, a fiancé of a USC enters as a non-immigrant and has 90 days to marry. With the K-3 Spousal Visa, the spouse of a U.S. Citizen may enter the U.S. as a non-immigrant and have a set period of time to apply for residency. Additionally, the V Visa, allows certain alien spouses and children of LPRs to live and work in the U.S. while processing an immigrant visa or adjusting status to LPR. The I-130 Petition for Relative must be have been filed no later than December 21, 2000 to qualify.
The problem with these categories, is that the true intention is not non-immigrant, that is, the person is entering fully intending to remain here, live and work etc… What if the spouse, K-3 needs a state driver’s license? Try explaining that to your local DMV! Chances are, your spouse will not be allowed to live here with the same benefits as a person with an immigrant visa under state law. Some people might opt for consular processing , which will grant residency in less time. There are other issues involving income requirements that might counsel for one category over the other. Only an immigration attorney with knowledge in these areas may advise you as to which category might work best in your situation.
Under the LIFE Act, Section 245(i) de la ley permite que ciertas personas que tengan una visa de inmigrante disponible inmediatamente, pero que entraron sin inspección o violado su estatus migratorio, también no serían elegibles para ajustar su estatus en los EE.UU. para aplicar si pagan una multa de $1,000. Esto evitaría tener que ir por el proceso consular. En general, para calificar bajo la ley 245 (i), la petición o certificación laboral basada en la familia se tendría que haber presentado antes del 20 de Abril del 2001. El solicitante también tendría que demostrar que ella/él estuvo físicamente presente en los Estados Unidos desde el 21 de Diciembre del 2000.
Bajo el TLCAN, las visas de TN de no-inmigrantes están disponibles para ciertos Mexicanos y los ciudadanos Canadienses que trabajan en diversas profesiones. La visa de no-inmigrante se otorga en incrementos de tres años y es renovable indefinidamente.
Foreign Exchange Categories: Las Visas J & Q
- Visa J (Visa de Estudiante)
- La Visa Q
- Visa F (Visa de Estudiante)
- Visa M (Visa de Estudiante)
- La Visa U
- Visa T
- Visa S
The J-1 exchange visitor visa is available to foreign nations who are bona fide students, scholars, trainees, professors, teachers, research assistants, specialists or leaders in a field of specialized knowledge, or others similarly-situated who are coming to the U.S. to participate in a program, designated by the U.S. Information Agency for the purposes of teaching, studying, consulting, doing research, receiving training, who meet other requirements under Section 212(j). With this category, spouses and minor children may accompany or follow to join the holder of the visa.
There are many variations regarding ability to work, length of authorized stay, and categories/qualifications. The J-1 includes, camp counselors, au pairs, international visitors-participating in professional tours, conferences, meetings etc…, and flight trainees inter alia. This category is subject to SEVIS (Student and Exchange Information Systems) tracking requirements. Although medical graduates qualify for this category, international medical graduates seeking clinical training might obtain a greater benefit with the H-1B Visa. There are additional requirements regarding change of status between J-1 to other categories. Your attorney will advise you regarding change of status issues.
The Q Non-Immigrant Cultural Exchange Visa is established through the USCIS (unlike the J Visa which is handled through the Department of State, Bureau of Consular Affairs) to promote international cultural exchange. The visa is granted for 15 months and is intended to promote public exchange of culture, history and customs from the applicant’s home country.
The F Visa is available to persons who pursue academic or language studies in the United States. Prospective F-1 non-immigrant visa holders must first apply at an approved educational institution and receive Form I-20. Once the I-20 is granted, the applicant would then apply at a U.S. Consulate for the visa which is granted “duration of status”, or granted while registered and pursuing the stated program of study. Other than on-campus employment under 20 hours, work authorization is not granted. However, periods of occupational practical and CPT training are available.
The M Visa is a non-immigrant visa available to students enrolled in vocational and technical courses of study. Unlike the F Visa, M status is granted for a fixed period of time (usually one year) and is granted at the U.S. Consulates after an I-20 is obtained directly from participating schools. Optional Practical Training (OPT) is granted one month for every four months of study.
U non-immigrant status is granted for four years (adjustment of status possible after three years of U status) to victims of certain crimes and certain family members. U status is available to applicants who have obtained certification from law enforcement, prosecutor or a judge that the applicant has been or is likely to be helpful in the detection, investigation or the prosecution of certain criminal activity. Generally, most grounds of inadmissiblity are waived concurrent with the filing of a U Visa and form I-192 and current immigration status does not usually affect the likelihood of success. Certain family members may follow to join principal applicants.
The T non-immigrant visa is granted for four years to victims of extreme forms of human trafficking who have assisted law enforcement. Human trafficking can include coercive forcing of persons to engage in prostitution, debt bondage, peonage and slavery.
S non-immigrant visas may lead to permanent residency if the applicant has material information and substantially contributes to the successful investigation and/or prosecution of criminal or terrorist activity. The applicant’s presence in the U.S. must be necessary to the investigation and/or prosecution of the criminal activity which would also place the applicant at risk of danger for sharing the information.
INVESTOR VISAS /TREATY TRADERS: The E Visas
The H-1B visa is a non-immigrant visa granted for three years, renewable for up to six years for workers employed in specialty occupations requiring a BA degree in the occupation or equivalent experience, except in the case of fashion models or certain artists/musicians of distinguished merit or ability. There are yearly numerical caps which impose a barrier to applicants of the H-1B visa. The H-2A non-immigrant worker visa is available for 364 days to temporary workers in the seasonal or temporary agriculture industries. The employer must provide temporary labor certification that no U.S. workers are available, willing or able to accept the employment and that employment of foreign workers will not adversely affect the U.S. labor force. The H-2A is highly regulated and includes strict rules requiring employer to provide housing, food and transportation to the carrier of the H-2A visa. The H-2B visa is a viable option for businesses involved in: the green industry, (such as landscaping), golf courses, amusement parks, resorts, businesses involved in summer tourism and recreation. If your business has a seasonal need, we can help.
To qualify for H-2B visas, both the job itself and the petitioning employer’s need for the specific worker must be temporary. Furthermore, the employment of the foreign applicant must not displace willing U.S. workers who would be capable of performing the same job. The employer’s need must be either a one-time, seasonal, peak load or intermittent need. There are many variations regarding ability to work, length of authorized stay, and categories/qualifications. The J-1 includes, camp counselors, au pairs, international visitors-participating in professional tours, conferences, meetings etc…, and flight trainees inter alia. This category is subject to SEVIS (Student and Exchange Information Systems) tracking requirements. Although medical graduates qualify for this category, international medical graduates seeking clinical training might obtain a greater benefit with the H-1B Visa.
There are additional requirements regarding change of status between J-1 to other categories. Your attorney will advise you regarding change of status issues.
The L-1 Non-immigrant visa está disponible para los empleados (y sus familias) de las empresas que tienen oficinas en el extranjero y en los EE.UU., o que están en el extranjero y buscan empezar un negocio de empresa en los EE.UU. Los empleados deben de haber trabajado por lo menos un año en el filial extranjero entre los tres años anteriores para aplicar. La relación entre los EE.UU. y las empresas extranjeras debe ser matriz-filial, filial-sede, filial hermana con el dueño común de Estados Unidos o ser un estadounidense de puesta en marcha. Existen dos clases de la visa: L – 1A para los ejecutivos o gerentes y la L-1B para los trabajadores con conocimiento especializado. La visa L-1A está disponible por hasta siete años y el L-1B está disponible por hasta cinco años. La visa L sí ofrece un camino a la residencia permanente.
R non-immigrant visas otorgan hasta cinco años de estatus para trabajadores religiosos temporales que buscan ingresar a los EE.UU. para trabajar como ministros o en vocaciones religiosas / trabajos con organizaciones religiosas de fines de lucro en los Estados. El solicitante debe demostrar su membresía en la organización por lo menos dos años antes de ser admitido en el estatus R-1.
ENTERTAINERS: O & P VISA
O non-immigrant visas están disponibles durante tres años con la extensión ilimitada de un año para los solicitantes que puedan demostrar que poseen habilidades extraordinarias en las ciencias, artes, educación, negocios o atletismo o que tienen un historial comprobado de logros extraordinarios en las industrias de película o la televisión y pueden mostrar aclamación nacional o internacional.
P non-immigrant visas a los empleados temporales en los artes, el entretenimiento, campos de deportes con reconocimiento internacional o que son parte de un intercambio recíproco organizado o programa cultural único.
INVESTOR VISAS /TREATY TRADERS: The E Visas
Treat Trader E-1non-immigrant visas are granted to applicants who carry on substantial trade principally between the U.S. and treaty country in the services, technology industries.
E-2 Treaty Investor non-immigrant visas are granted in two-year renewable increments to applicants of certain countries and their derivative spouses and children. Work authorization is granted to both the principal applicant and her derivatives. Investment in the U.S. must be “substantial”.
E-3 non-immigrant work visas for Australians are valid for two years and are renewable indefinitely and are not subject to the onerous H-1B caps. The employer must file a labor certification application, the same as per H-1B, but will indicate “E-3″ on the forms.
The C Visa is a transit visa de tránsito disponible para tripulantes, representantes extranjeros y la OTAN / G-4 familias (C, D, N) para el tránsito inmediato a través de los Estados Unidos. La visa cubre aquellos sin los visados (TWOV), así como los pasajeros-internacionales-a internacional en movimiento a través del mismo aeropuerto para hacer una conexión internacional.
I Visas son disponibles para los representantes de los titulares de ciertas credenciales de comunicaciones extranjeras de prensa (si se ofrece por el país de origen, los trabajadores free lance con contratos válidos, representantes de las oficinas de turismo, donde los EE.UU. y el país de origen tienen acuerdos de reciprocidad.)
La “lotería de visas” está disponible para los solicitantes de ciertos países que están insuficientemente representados por las cuotas per cápita. Los solicitantes debajo de VWP se les permite entrar a los Estados Unidos sin la necesidad de solicitar una visa de visitante.
For foreign nationals who wish to remain in the U.S. permanently or indefinitely in either the employer-based or family-based category
EB-1 Visas grant permanent residency to priority workers of “extraordinary ability” in the sciences, arts, education, business or athletics by meet 3/10 published criteria. Outstanding professors/researchers and certain executives/managers of foreign companies who are transferred to the U.S. also fit the EB-1 preference category.
EB-2 Visas are preference visas available to members of the professions holding advanced degrees (or equivalency) who are of exceptional ability in the sciences, arts or business that will substantially benefit the national economy, culture or education in the U.S. An employer must file a labor certification application (or a national interest waiver must be obtained), provide a job offer to the applicant and file an I-140 petition. The applicant must have an advanced degree, BA/BS degree or equivalent in the field.
EB-3 Visas are preference visas available to skilled workers (2 years experience), professionals (with BA degree), and other workers (unskilled and not seeking seasonal or temporary positions with the employer). The sposoring employer must file a labor certification and offer a permanent full-time position. The wait times for this category to become current are notoriously long.
EB-4 Visas are granted to certain special immigrants such as religious workers, broacasters, Iraqi interpreters, Iraqi’s who assisted the U.S., international organization workers, physicians, armed forces members, Panama Canal Zone wemplyees, retired NATO-6 employees or spouses and children of deceased NATO-6 employees, special immigrant juveniles (court dependents).
EB-5 Visas are granted to applicants who have invested $1,000 or $500,000 (Targeted Employment Area) for a conditional permanent residence period of two years. Within 90 days of the expiration of the 2 years, the applicant must file a petition to remove the conditions by showing that full investment has been made and that the business maintains 10 U.S. Citizen workers. Once the conditions are removed, the holder becomes a full legal permanent resident. The beneficiary of EB-5 may bring derivative spouses and children to the U.S who are also authorized to work.
- F-1 Unmarried sons or daughters of U.S. Citizens
- F-2 Spouses or unmarried children of Legal Permanent Residents
- F-3 Unmarried sons and daughters of U.S. Citizens
- F-4 Siblings of U.S. Citizens
A refugee is a person outside her country who because of a a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion” who is unable or unwilling to return to that country and who cannot seek protection from the country of nationality. Refugees are granted status prior to entering the U.S., however asylees seek asylum within one year of arrival into the U.S. Others may seek benefits under The Convention Against Torture, INA With Holding of removal after one-year in the United States has passed-even before the immigration judge in removal proceedings. Asylees and refugees may apply for permanent residency after one-year of status, while benefits under the CAT/deferral or withholding applicant only obtain work authorization and may not seek adjustment of status.