Nonimmigrant Visa Categories
In addition to the opportunities for lawful permanent residence status there are numerous ways for aliens to achieve lawful temporary status, referred to as “nonimmigrant” status.
Section 101(a)(15) of the Immigration and Nationality Act defines “Immigrant” as every alien excepting those described in the following 22 subparagraphs (A) through (V). This may seem to be a convoluted way of listing the several temporary visa classifications, but this is how the Congress chose to do it. The last time Congress added to the list was in 2000 when it added categories (T) through (V) through separate legislative enactments. Presumably, at some point Congress will come up with one or more new categories, starting with a new “W” classification. Who knows what Congress will do if and when they ever go beyond the “Z’s”?
Provided below is a Listing of current categories A through V. We also have a special nonimmigrant Free Trade Classification for Mexican and Canadian Professional workers, referred to as the “TN” [acronym for Trade NAFTA (North American Free Trade Agreement)]. Many of these alphabetical designations are further subdivided. The eligibility criteria are necessarily described in a summary fashion because it would take several pages to discuss all of the nuances. Before suggesting an application for any particular classification, experienced legal counsel would need to undertake a thorough analysis of all of the criteria, as related to a particular, potential applicant.
| Category |
Description |
| A |
Ambassadors and other diplomats and family members |
| B-1 |
Business Visitors – This is a very useful category to facilitate international commerce. The B-1 is not allowed to obtain remuneration from a U.S. employer. Labor activities are not permitted. In general, the B-1 entrant is coming to the U.S. for the benefit of a foreign employer to promote international commerce. Unless the applicant is a Canadian citizen, or is in possession of a Passport from a visa waiver country, a visa must first be obtained from a U.S. Consulate. Unlike many of the other work related visas, there is no advance petition requirement to obtain the visa or admission to the U.S. |
| B-2 |
Visitor for Pleasure, also referred to as “Tourist Visa”. This is the most common NIV category. The applicant must demonstrate that he or she has no immigrant intent. Unless exempted, based on country of nationality, a visa is required for admission to the U.S. The period of validity of the visa is based on reciprocity, not to exceed 10 years. B-2’s are typically admitted at the border for 6 months and an I-94 document is issued to reflect the period of authorization. Internal extension applications are possible. |
| C |
Transit visa. - Crewmen are typically granted this authorization in tandem with the D visa to permit them entry to the U.S. prior to embarkation on their ship or plane. The C’s are not allowed to apply for an extension or adjustment of status. |
| D |
Crewman visa – Like the C, this is a restrictive visa. Many of the usual immigration benefits, such as adjustment of status and cancellation of removal are not available to the D’s. |
| E-1 |
Treaty Trader – This is only available for individuals from countries with which the U.S. has a bilateral treaty. A listing can be found in the Foreign Affairs Manual. This application is typically adjudicated by a Consular Officer. The trade activities must be substantial and must already exist and the trade must be primarily between the U.S. and the applicant’s country. This visa is issued in 5 year increments and can be extended indefinitely, as long as the trade activities are ongoing. |
| E-2 |
Treaty Investor – Similar to the E-1, this visa is available to nationals from countries with which the U.S. has negotiated a treaty. The investment must be substantial. There is no bright line dollar amount. However, it must be commensurate to the particular enterprise. The investment cannot be “marginal.” It must be such as to create an income stream in excess of what is necessary to support the investor and his or her family. The investment should have a positive economic impact on the community, such as creation of job opportunities for U.S. workers. Spouses of the E’s can now obtain employment authorization. |
| E-3 |
This is a new category for Australian professionals. It is similar to the H-1B, but has a more streamlined application process. |
| F-1 |
Student visa – full time attendance is required. Student must first obtain I-20 acceptance form from school. Financial viability must be established. This is mostly used for university studies. It is also available for private elementary and secondary schools. One year of employment authorization can be obtained for practical training following graduation from college. |
| F-2 |
Spouse or child of F-1. |
| G |
Designated representatives of foreign government or international organization, including family members, employees and personal attendants of such representatives. |
| H-1B |
Specialty occupation, – i.e. “professional” worker. Petition is required by U.S. based employer. Unlike for the permanent labor certification process, it need not be demonstrated that a qualified U.S. worker is not available. However, the alien worker must be paid the greater of the employer’s actual wage for the position or the prevailing wage in the industry. The H-1B can be authorized for up to 6 years, with additional time permitted in certain cases where a permanent application is pending. With a few exceptions, there is currently a 65,000 annual cap for these visas, which has already been exceeded for Fiscal Year 2006. A new law, passed by Congress at the end of 2004, provides an exemption of 20,000 from the cap for individuals with U.S. advanced university degrees. The same law also reestablishes training fees and anti-fraud fees, so that the cost of filing such a petition under the Premium Processing program will be in excess of $3,000. There are separate provisions and quotas for citizens of Chile and Singapore pursuant to recent free trade agreements. These employees are referred to the H-1B1’s. In general, the job must involve a professional occupation where the typical requirement is a minimum of a Bachelor’s degree. It is possible for an applicant to demonstrate equivalent experience under specific regulatory guidelines. |
| H-1C |
Registered Nurses working in designated health professional shortage areas. There is a quota of 500 visas per year. |
| H-2A |
Agricultural Workers. Labor Department first determines if there is a shortage of U.S. workers. |
| H-2B |
Temporary Visa for employees coming to perform a temporary or seasonal job. Labor Department determines if there is a shortage of U.S. workers. Like for the H-1B’s this is subject to a 66,000 annual cap, which is already exceeded for Fiscal Year 2005. A new law passed in early 2005 provides for seasonal allocation of the visas so that employers requiring summer help have an equal opportunity to hire workers before the quota, established each October is exhausted. Additionally, certain H-2B workers who previously enjoyed that status are exempted from the cap. |
| H-3 |
Trainees – It must be demonstrated that the training is not available in the alien’s home country and that the alien is receiving training to apply to work in his or her own country. Productive employment, other than for training purposes, is prohibited. Period of admission is limited to 18 months. |
| H-4 |
Spouses and unmarried children of the principal H worker beneficiary. H-4’s are not permitted to work. |
| I |
Foreign media representatives |
| J-1 |
Exchange Visitors – Applicant must first obtain a DS 2019 document issued by an agency approved by the State Department. The purpose of this visa is to promote cultural exchange. This covers many situations, including foreign scholars, physicians coming to U.S. for training, camp counselors, au pairs, etc. Certain J-1’s are required to return to their home countries for a minimum of 2 years after their time in the U.S. as a J-1 before applying for permanent residence or certain nonimmigrant classifications. In some cases a waiver of this requirement can be obtained. |
| J-2 |
Spouse or child of J-1. Spouses are permitted to obtain employment permission as long as they will not be supporting the J-1. |
| K-1 |
Fiance(e) – The U.S. petitioner must marry the fiancé(e) within 90 days after entry to the U.S. and an application for permanent residence is filed after the marriage. The law requires that the couple prove that they have met before a fiancé(e) petition can be approved. The meeting requirement can be excused based on religious considerations or if the U.S. citizen is disabled. Children can be admitted as K-2s. |
| K-3 |
Spouse of U.S. citizen – This category was created by the 2000 LIFE Act to help speed up the process for spouses to come to the U.S. in lieu of waiting to qualify for an Immigrant visa. Children can be admitted as K-4s. |
| L-1A |
Intracompany Executives and Managers – The employee must have been employed at least one year abroad for the foreign affiliate company. Authorizations can be for up to 7 years. If the U.S. affiliate has been in existence for more than one year, the employee can qualify for permanent residence under the priority worker category, which does not require labor certification. |
| L-1B |
Intracompany transfer visa for employees with specialized knowledge. Authorized for up to 5 years. This is not as advantageous as the L-1A. There is no permanent category for the L-1Bs. Consequently, in most cases, labor certification would be required for permanent status. At the end of 2004 Congress passed a new law to prohibit L-1Bs from primarily working off the employer’s worksite, to prevent suspected abuse of the program |
| L-2 |
Spouses and children of the principal L’s; spouses can now obtain employment authorization. |
| M |
Vocational students – This is similar to the F visa, but is more limited from a durational standpoint. Employment authorization for practical training is also available, but is limited to 6 months. |
| N |
Parent or child of special immigrant through prior service for U.S. government or NATO. |
| O-1 |
Extraordinary ability artists, athletes, scientists and business people – Requirements for the various sub-categories are highly technical. A consultation by a peer group is generally required. |
| O-2 |
Support personnel for the O-1’s |
| O-3 |
Family members of the O’s |
| P |
This category is further subdivided. Entertainment groups and members of athletic teams are the primary beneficiaries. |
| Q-1 |
Participants in international cultural exchange programs. Duration limited to 15 months. |
| Q-2 |
Special visas for citizens of Northern Ireland and Northern provinces or Republic of Ireland under the age of 35 for designated training programs – implemented by the Irish Peace Process Cultural and Training Program Act of 1998 to provide experience in conflict resolution to promote peace – duration limited to 36 months – often referred to as Congressman Walsh visa. In 2004 Congress extended this program until October 1, 2008. |
| R |
Religious workers, including ministers – the applicant must have been a member of the particular religious denomination for at least 2 years preceding the application |
| S |
Government Informants. Limit of 200 per year. Permanent residence may be available for these individuals. Distinct waiver provisions are also available to overcome certain grounds of inadmissibility, such as for prior criminal conduct. For this status, cooperation of law enforcement officials is required |
| T |
Victims of human trafficking providing assistance for law enforcement purposes. |
| U |
Victims of criminal activity providing information for law enforcement purposes. |
| V |
This visa is available for a limited group of spouses of lawful permanent residents whose petitions for permanent residence were filed before December 21, 2000 which are backlogged for 3 years under the Family 2nd preference quota. Given that quota backlogs are now becoming current, this visa will soon be a historical anachronism. |
| TN |
This is a nonimmigrant category, not listed under INA §101 (a) (15). It is similar to the H-1B visa, but is only available to Canadian and Mexican citizens who have prearranged employment in the U.S. in a designated professional application. The NAFTA Appendix lists the occupations and the qualifications. Unlike for the H-1B there is no requirement to file advance applications with the Labor Department or DHS. Canadians can file applications at the Port of Entry. Mexicans still require visas. Authorization is issued in one year increments but there is no limit how long this status can be enjoyed. The covered occupations are not identical to the recognized H-1B occupations. For example, a journalist might be able to secure an H-1B visa but this is not a listed TN occupation. Under NAFTA, certain management consultants and scientific technicians can qualify under TN, but would not be able to satisfy the H-1B criteria due to lack of education. |
General Considerations – Many of the aforementioned nonimmigrant categories have highly technical eligibility and processing requirements. These are set forth under the statute, including INA § 214, and regulations, primarily 8 CFR §214.
The practitioner must also be cognizant of precedent administrative and judicial decisions interpreting the applicable provisions. In addition, the DHS periodically issues informal opinions, including in attorney liaison meetings, which are important to know, especially for situations involving the newer laws for which no regulations have been promulgated.
For those individuals who do not have an immediate opportunity to achieve desired permanent “green card” status, it behooves them to consider viable nonimmigrant options, which in some cases can facilitate temporary entry to the U.S. and provide a bridge for ultimate permanent status based on a longer term strategy. For most of the NIV categories [statutory exceptions for H-1Bs and L’s and the E’s from a practical standpoint], the NIV applicant must be able to overcome the presumption of immigrant intent for visa issuance and admission at the port of entry.
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