Practice Areas

 

Non-Immigrant Visas

Immigrant Visas

Non-Immigrant Visas

A non-immigrant visa permits its holder to apply for entry to the U.S. for a temporary period of time and for a specific purpose. Appropriate purposes are so that an individual may be authorized to work, go to school, attend a conference or explore business opportunities, to visit the country as a tourist and to visit family and friends.
What distinguishes a non-immigrant visa from an immigrant visa is that the non-immigrant visa only allows a person to enter temporarily, whereas an immigrant visa holder can enter and stay permanently for the duration of their immigrant visa, or until the individual is eligible to apply for naturalization.
At the border, the non-immigrant visa holder can be admitted to the U.S. in the particular immigration status indicated on the visa. The duration of an individual’s stay in the U.S. depends on which immigration status they are admitted. A person admitted in one status can sometimes change their status in order to stay for a different purpose.

The following is a brief list of the most commonly used temporary working visa categories:

H-1B Specialty Occupation

The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties, etc…). Current laws limit the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000, with up to 20,000 additional H-1B visas available to graduates of U.S. master’s degree (or higher) programs.

L-1 Intracompany Transfers

The L-1 visa allows multinational companies to transfer high-level and essential employees from oversees to the United States. In order to qualify, the non-immigrant must have worked at the affiliate or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity within the last three years for a minimum of one year.  Spouses of L-1 visa holders are eligible for work authorization.

E-1 Treaty Traders

The E-1 visa allows a non-immigrant to enter the United States solely to carry on substantial trade between the country he or she is from and the United States. The home country of the non-immigrant must have a treaty with the United States.

E-2 Treaty Investor

The E-2 treaty investor visa allows a non-immigrant to come to the United States to develop and direct the operations of an enterprise in which he or she has invested. An employee of a treaty trader investor may also be qualified as an E visa holder if the nonimmigrant will be performing duties that require special qualifications essential to the business. In addition the nonimmigrant must have the same nationality as the alien employer and the home country of the non-immigrant must have a treaty with the United States.
For a list of countries, please click here

E-3 Professional Visa

E-3 visas are issued to professionals coming to work in the United States in a professional occupation specifically from Australia. The individual does not have to be Australian by birth but could have acquired Australian citizenship as long as they are an Australian citizen (not just a permanent resident). Generally, this visa is available to someone with at least a bachelor’s degree in a specialized field filling a job which requires a bachelor’s degree in or related to that specialized field. The specialty occupation requires theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. In some cases, however, experience or a combination of education and experience can substitute for a bachelor’s degree. An E-3 petition can apply for the nonimmigrant visa directly at the U.S. consul without requiring a USCIS approval.

Requirements

Professional Employee: An employee must qualify as a professional in the field. The employee must hold a Bachelor’s degree in a related field or demonstrate completion of education, work experience, or a combination of both which would be equivalent to a Bachelor’s degree in a specialized occupation. Three years of experience in the specialty is usually accepted for each year of education the employee needs to complete a bachelor’s degree in that field, with twelve years of professional experience required if the employee has no formal education.

If a position requires completion of either a Master’s or Doctoral degree, then the employee must have such educational credentials. One can have the equivalent of a Master’s degree by showing completion of a Bachelor’s degree in a related field and 5 years of experience. Thus, someone who only pursued two years of college majoring in Interior Design in college but who has held increasingly responsible jobs in the interior design field for six years would qualify as a professional. If State licensing is required for a profession (e.g. law, accounting), then an employee must hold such a license in order to obtain E-3 status.

Professional Occupation: The E-3 visa is available to employees coming to work in a specialty professional occupation. A professional occupation is one which requires theoretical and practical application of such highly specialized knowledge that at least a bachelor’s degree in the field or equivalent em¬ployment experience is commonly required in the industry. If the occupation involved does not meet this test, an employer can sometimes show that the duties of the particular position offered are so complex that a bachelor’s degree is needed. Occupations such as accounting, psychology engineering, finance, market research, mathematics, physical and social sciences, medicine and health education, business specialties, law, theology and arts are among those fields considered professional.

Professional Position: The duties of the position must require a professional. For example, a position whose title is accoun¬tant but whose duties involve only minor calculations and in-putting financial data would not qualify for E-3 visa status because the position does not require use of specialized knowledge of accounting.

Labor Condition Application: Under the law, an employer is required to file an application which must be approved by the U.S. Department of Labor. This application contains attestations by the employer regarding payment of prevailing or actual wages for the specific position to E-3 employees, working conditions, the absence of strikes, and providing of notice of filing of the application. The labor condition application must be filed and approved or CERTIFIED prior to applying for E-3 visa status. The application is reviewed by the Department of Labor for completeness only and can therefore usually be obtained within a seven to ten day period depending upon the State. Enforcement of this provision is complaint driven and proceedings will only be contemplated by the Department of Labor if the application contains material misrepresentations or if an employer is not complying with any of the attestations contained in the application.

5. The petitioner must be a U.S. employer. The employer for whom the E-3 employee will be working must have an ongoing business in the United States. The employer must have an IRS Employer Tax Identification number.

6. When applying for an E-3 at a U.S. consulate abroad, an alien need no longer demonstrate retention of a foreign residence. In addition, E-3s visas are not dual intent, which means a green card application and the intent to reside permanently in the US conflicts with the temporary nature of the E-3.

Term Generally granted for a term of two years and can be renewed indefinitely, at the consular officer’s discretion. However, the individual must prove they have no intent to apply for immigrant status (green card).

Dependents The spouse and children under age 21 of the E-3 visa holder are entitled to E-3 dependent visas. Spouses are entitled to work authorization. Children attending a full-time school who reach 21 years of age may change from an E-3 visa to a student visa (F 1) to complete their studies.

Process First a labor condition application must be filed, and certified. The preparation once the company has produced documentation can be done in under a week. The certification process takes 7 days. Once the visa application is prepared, the individual must go to the consulate and apply directly with supporting documentation. Once approved, the individual is eligible to work as soon as they enter the United States.

Success Rate Generally, if the position is professional and the individual is suitable, the success rate is excellent. The reasons for denial are usually either that the position is not professional, or that the individual has been unable to prove sufficient ties to their home country (intent to return). Proof may include bills, a home, etc. to establish the intent to depart the US.

O-1 Individuals of Extraordinary Ability or Achievement

Highly talented or acclaimed foreign nationals may eligible for an O visa. Individuals who may qualify for this visa are entertainers, scientists and high-end chefs, businessman, and athletes.

P Performing Entertainers and Athletes

P visas are available to non-immigrants internationally known athletes and entertainment groups. Performing artists who fall under a reciprocal exchange program are available for a P-2 visa. P-3 visas are applicable to culturally unique entertainers.

TN Professionals

Under the NAFTA treaty, citizens of Mexico and Canada can apply for a TN visa. To qualify the applicant must be employed in one of the listed professions in NAFTA. The professions are very similar to that of the H-1B specialty occupations.
For a list of eligible professions, please click: NAFTA Treaty

R-1 Religious Workers

The R-1 visa allows religious workers to come to the United States to participate in a religious occupation and perform services for their religious organization. The religious organization must already be established in the United States.

Immigrant Visas

Most people are more familiar with the term “green card,” rather than immigrant visa or lawful permanent residence. An immigrant visa enables an individual to live and work in the U.S. for the rest of their lives if they so choose, unless they commit an offence which would cause a denial of the renewal of their immigrant visa. These are largely grouped into two main types of permanent visas: Employment-based and Family-based immigrant visas. Another category is the Diversity Lottery Visa.

Employment Based 

  • Immigrants with extraordinary ability in business, arts, or sciences;
  • Managers and Executives of international businesses;
  • Outstanding professors or researchers;
  • Immigrants with advanced degrees whose work is in the national interest;
  • Immigrants with job offers who have a Bachelor degree or higher, or who have work experience;
  • Religious workers and ministers; and
  • Immigrant Investors.

Some employment-based applications require “labor certification”, also known as PERM, which is a process by which the U.S. Department of Labor certifies that there is a lack of able, willing and qualified U.S. workers in the position.

Family Based

  • Immediate relatives of U.S. citizens: spouses, parents or children under the age of 21;
  • Adult children, whether married or unmarried, of U.S. citizens;
  • Spouses and unmarried children of lawful permanent residents; and
  • Brothers and sisters of U.S. citizens.

There are numerical limitations established by the Immigration and Nationality Act and each year a tabulation is made for each category by country for visas issued.  When the numbers exceed the allowable usage a backlog is created.  An individual can only process the final stages (adjustment or consular processing) at such time that a visa number is available and allocated to him or her.  As a result of the common backlogs that are created the individual’s priority date (or place in line) becomes important to the processing of a case. The priority date is established by the date of filing of the initial application. The Visa Bulletin, which is released each month by the U.S. State Department, provides the cut-off dates in each of the preference categories outlined above.

 

Diversity Lottery Visa

The Diversity Lottery Program allocates 55,000 new immigrant visas each year for individuals from underrepresented nations. A nation is considered underrepresented if less than 50,000 people from that nation immigrated to the U.S. in the past five years. To be eligible for the Diversity Lottery Program, you should have either a high school education, its equivalent, or two years work experience within the last five years in a job which demands two years training. You or your spouse must be a native of a nation eligible for the Diversity Lottery Program. You may be eligible if your parent was born in a country eligible to participate in the lottery. The Diversity Lottery Program randomly picks the 55,000 visa candidates. Individuals are chosen to receive the visa by chance, not by merit.

Each year, the Department of State publishes specific instructions on how to apply for the Diversity Visa. These instructions are typically made available in August, and the registration period usually begins in early October.

Naturalization

Naturalization is the process of becoming a U.S. citizen for a foreign born person.  Individuals usually have to have been previously admitted as a Lawful Permanent Resident for the requisite certain period of time.  
There are five major reasons why individuals generally apply for naturalization:

  • Acquire the right to vote and/or hold a public office position.
  • Gain employment in some government jobs that are available only to U.S. citizens.
  • The ability to live outside the U.S. for extended periods of time without losing U.S. permanent residence rights.
  • Avoiding deportation as a precaution in the event of changes in laws, public policy changes or conviction of crimes.
  • Gain certain tax benefits which apply to U.S. citizens and not to permanent residents.

In order to qualify for naturalization an individual must meet certain criteria.  These include the following: 

  • One must have resided in the U.S. for at least five years continuously as a permanent resident, or three years if an individual obtained his or her green card through marriage to a U.S. citizen and remains still married.  
  • The individual must have resided in the United States for 30 months during the past 5 years.  Residence must also be physical presence.  
  • The applicant must be a person of good moral character during the statutory period of required residence (5 years or 3 years if married to a U.S. citizen).  
  • The applicant must pass a U.S. government and history test.  
  • The applicant must be able to speak, read, write and understand basic English.  
  • The applicant must express allegiance to the United States government.  

The process of naturalization can often present new challenges for the unprepared who may have lived as a green card holder for years, resulting not in citizenship for the applicant but rather in removal or deportation.  Common reasons for denial of citizenship are old convictions, child support irregularities, voting in the U.S., jury service, misleading information on previous immigration applications, and even one’s travel history can cause the U.S. Citizenship and Immigration Services (USCIS) to deny a naturalization application and order the detention and removal of the applicant.
Processing times vary depending on the place of residence.  Commonly, subsequent to the application, the applicant is issued with an interview appointment and upon passage of the interview and a determination that the individual meets the conditions, they are sworn in under oath and the individual becomes a U.S. citizen.