Definitions and Explanations
§ 214 of the Immigration
and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8
U.S.C. § 1184
8 C.F.R. § 214 (1998)
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A B C D E F G H I J K L M N O P Q R S TN
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Unlike immigrants (who have an intention to reside in the United States indefinitely), non-immigrant visa holders (NIV's) enter the U.S. for a temporary period of time and are restricted to an activity consistent with their visas (e.g., a tourist must act like a tourist, a professional worker under H-1B must act like an H-1B visa holder, etc.). Unlike immigrants, however, they are less subject to the numerical restrictions and are more likely to obtain waivers of inadmissibility (all grounds of inadmissibility except 212(a)(3)(A) [except (A)(i)(II), (3)(C), and (3)(D)] can be waived for NIV's. With the exception of H-1B visas, there is no numerical limitation on the number of nonimimgrant visas that may be issued or the number of people with nonimmigrant visas (NIV's) that may enter the U.S.
Generally, all nonimmigrants must represent, indicate, and prove that their intent is to enter the United States is for a temporary period, only. Genearlly, a non-immigrant alien may not have a "dual-intent." This means they cannot enter on a non-immigrant visa while harboring or having an intention of remaining in the United States - this is a violation of U.S. immigration law and can lead to visa denial, deportation and removal, or expedited removal. However, some visa categories are except from this requirement and may have "dual-intent," such as H-1A, H-1B, H-4, E-1, E-2, L-1, or L-2 categories.
All NIV's require a valid passport for six (6) months and a valid nonimmigrant visa or border crossing card. See INA § 212(a)(7)(B)(i), 8 U.S.C. § 1182(a)(7)(B)(i). However, this provision can be waived by the Secretary of State (via U.S. Department of State) and the Attorney General (via U.S. Department of Justice) together. See INA § 212(d)(4).
It is important to note, that an NIV holder will not be readmitted into the U.S. if he overstays the time authorized in the U.S. on his last entry, unless he obtains a new visa at the consular office in the country of his nationality. See INA § 222(g)(2), 8 U.S.C. § 1202(g)(2). This does not include persons who are "out-of-status" for reasons other than an overstay such as persons who are employed with authorization.
A NIV holder may not hold more than one nonimmigrant status at a time. Hence, it is important to select the correct category of visa that is appropriate and specific to your desired activity within the United States. A wrong selection may require you to change categories resulting in added cost, delay, confusion, and possible departure from the United States.
There are two (2) levels of scrutiny for all NIV's. First, the alien must seek and obtain a visa at a U.S. Embassy or Consulate, unless he is visa exempt. The applicant must present himself at the Consulate and submit Form OF-156. If the visa is approved, and after obtaining the visa, he must be admitted to the United States at the border or pre-flight inspection station by a U.S. INS officer. If the applicant is admitted, he will be given an I-94 Entry/Departure Record ("I-94 Card"). This card will govern the terms of his stay in the U.S., regardless of the information printed on the actual visa stamp itself in the passport.
If a visa is denied, a consular officer shall provide the applicant with a timely written notice that states the basis for the determination and lists the specific provisions of law. See INA § 212(b), 8 U.S.C. § 1182(b). This provision, however, may be waived by the Secetary of State.
NIV's such as Hs, Ls, Ks, Os, Ps, and Qs, need prior approval with the U.S. INS of a Special Petition before applying at a Consular Post. See INA § 214(c), 8 U.S.C. § 1184(c). Generally, an applicant is required to go to the consular office of his residence. However, all consular posts can issue NIVs. If an NIV holder overstays, however, he must return to the consular officer in the country of his nationality, unless extraordinary circumstances are found to exist by the Secretary of State. In this regard, a state-side third country national ("TCN") may make an appointment for a visa stamping in Canada or Mexico by calling a telephone number in advance: 1-900-443-3131.
In order to enter the U.S., an applicant needs not only a valid visa (unless exempt), but also needs a valid, unexpired passport for six (6) months beyond the expiration date of the visa, unless there is a bi-lateral agreement between the U.S. and the applicant's country. An applicant for admission may have his visa in an invalid passport if it is: (1) a multiple-entry, indefinite visa; and (2) he is in possession of a valid passport.
The U.S. INS has also established an automatic inspection system to expedite the entry into the U.S. of persons from visa waiver countries who travel to the U.S. three or more times a year in a B-1, E-1, E-2, L-1 or business visitor status under the Visa Waiver Program. In order to participate in this program, an applicant must submit Form I-833, Application for INSPASS (INS Passenger Accelerated Service System).
VISA WAIVER PROGRAM: If an alien is from a certain country and is appyling as a B-1/B-2 (tourist, etc.) for a period not to exceed ninety (90) days and has a non-refundable return ticket, then no visa is required. The applicant will receive an I-94W Card, but is ineligible for change of status, extension of status, or adjustment of status unless it is on the basis of an immediate relative. See 8 C.F.R. § 217.3(a) or 245(i). The following countries are participating in this program: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, San Marino, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom). See 8 C.F.R. §§ 212.1(i), 217.
Categories and Explanations of Non-Immigrant Visas
The following are the current Non-immigrant Visas (NIVs) that are available under current U.S. Immigration Law with a brief explanation.
Diplomatic visa eligibility - 22 C.F.R. § 41.26: Heads of State; Royal Family; Governor Generals; Cabinet Members; Justices of Highest Court; Presiding Members of Legislatures; Ambassadors; Military at or above rank of Brigadier General Military Attache; G-4 Visa Holders if Secretary General of United Nations; other U.N. official or officer on a diplomatic mission; and all immediate family members of those listed above.
3 Categories of A: [A-1]: Ambassadors, public ministers, or career diplomats/officers; [A-2]: Other accredited officials and employees of foregin governments; [A-3]: Attendants, servants, personal employees.
Section 222(g) regarding overstays is inapplicable to A-1 or A-2 visa holders.
Any alien (other than a student, one performing skilled or unskilled labor, representative of foreign information media) who has a residence in a foreign country (need a foreign "actual dwelling place"), is visiting temporarily for business or pleasure and has no intention of abandoning residence in foreign country. The initial admission period is valid for one (1) year w/ six (6) month maximum extensions.
B-1, "Visitors for Business": engaging in commercial transactions not involving gainful employment, e.g., negotiating contracts, litigation, consulting with clients or business associates. Also, available for aliens who participate in scientific, educational, professional, or religious/business conventions.
B-2, "Visitors for Pleasure": available for tourists, social visits to friends/relatives, health purposes, participants in conventions of social organizations, participants in amateur musical/sports/similar events with no remuneration, dependants of U.S. Armed Forces, accompanying D or B-1 aliens, if coming to U.S. to marry U.S.C. but will depart, if coming to U.S. to marry nonimmigrant, if eligible for H-4 status but inconvenient/impossible to obtain, non-spouse partner that accompanies a principal E, H, or L for duration of stay, parent seeking to remain w/ F-1 child. A B-2 holder for pleasure is defined as, "Legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, activities of a fraternal, social or service nature." See 22 C.F.R. § 41.31(b)(2).
If an alien is in "immediate and continuous transit through the U.S." (e.g., crewman joining ship; businessmen traveling from Belize to Jamaica through U.S.), then classified as C-1. Includes U.N. transits (e.g., non de jure and non-member reps.) as C-2. Foreign representatives passing through U.S. may be classified as C-3.
A C-1 visa holder is required to: (1) be considered passing in "immediate and continuous transit through the U.S." if: reasonably expeditiuos departure in normal course of travel as elements permit and prearranged itinerary assumes. No unreasonable layover privileges. If an alien crewman wants to visit friends/relatives then he must obtain different visa [NOTE: If a V-1 is for a crewman joining a ship, he needs a letter from the shipping company agreeing to pay cost of deportation if necessary - 9 FAM 41.41, N.3.1]; (2) in possession of ticket or other assurance of transportation to destination; (3) sufficient funds for transit; (4) has permission to enter third country; (5) period of stay cannot exceed 29 days.
A C visa holder may not: (1) Change Status under § 248; (2) Adjust Status under § 245; (3) Extend Status. See 8 C.F.R. § 214.1(c)(3).
A TWOV (Transit without Visa) holder must establish: (1) admissible; (2) confirmed onward reservation to next country; (3) continue journey on same or connecting line wihtin 8 hrs. or next available transport. Cannot change carrier more than two times. TWOV "visas" are not available to citizens and residents of certain countries: Cuba, Iran, Afghanistan, Korea, Bangladesh, India, Pakistan, and Sri Lanka. Airlines may be fined if a TWOV absconds. See 8 U.S.C. § 1321.
Crewman (a person serving in good faith in any capacity required for normal operating and service on board a vessel) includes: (1) people employed by owners or concessionaire (e.g., beautician); (2) includes trainees; (3) does not include persons on U.S. based fishing vessels, except for those landing temporarily on Guam; (4) does not include persons not needed for normal operation or where numbers are in excess; (5) does not include persons performing longshoreman's work unless it is prevailing practice, there is reciprocity for crewman aboard U.S. vessels, or it is being done by automated equipment.
Two types of D visas: Individual D visas or crew list visa (all members of crew listed on manifest). Crew list visa (D) placed upon manifest. Six (6) month validity is usually extended by Consular officials. D-1 Visas are for crew on all types of vessels except U.S. based fishing vessels. D-2 Visas are for U.S. based fishing vessels temporarily visitng Guam.
E-1, E-2 VISAS (Treaty Trader/Investors) Click here for more information.
G-1 Visas: (1) Principal resident reprsentative, family and staff (of any rank, including clerical and custodial employees, so long as they are assigned on a "resident basis."); (2) Foreign governement has de jure recognition; (3) International organization listed (e.g., IMF, U.N., OAS, OAU); (4) Only subject to certain security grounds of inadmissibility; (5) G-1 to G-4 duration of status so long as U.S. DOS recognizes credentials.
G-2 Visas: (1) Other accredited representatives and immediate family; (2) Personnel of any rank or temporary delegation
G-3 Visas: (1) G-1/G-2 from government without de jure recognition from U.S.; (2) Nonmember country of international organization
G-4 Visas: (1) Officers & employees of international organization and immediate family; (2) special expedtious treatment to U.N. reps. because United States host country; (2) sons & daughters, widows and retirees in G-4 status can be special immigrants.
G-5 Visas: Attendants, servants, and personal employees of G-1 to G-4's.
Employment is generally not available but may be authorized for certain G categories.
A bona fide representative of the foreign press, radio, film, or other foreign information media, who enters solely to engage in vocation.
General provisions: (1) Does not include film production/distribution unless film is informational or educational; (2) Television is included. Private production crews where film will be distributed for information or news not designed for commecial entertainment are also included; (3) If producing for commercial entertainment/advertising purpose, then camera crew and other workers may receive a B-1 or H visa even if there is no remuneration and the film is solely for foreign distribution; (4) Foreign press includes a foreing press owned by U.S. shareholders if staffed in large part by non-americans to collect information for a foreign audience.
A nonimmigrant visitor who has no intention of abandoning foreign residence who: (1) is a bona fide trainee, student, professor or research scholar, short term scholar, non-academic specialist, foreign physician, international visitor, teacher, government visitor, camp counselor, au pair, summer student in travel/work program; (2) entering U.S. to pariticapre in an exchange visitor program that has been designated by the U.S.I.A. and whose participation includes: such purposes as teaching, studying, observing, conducting research, consulting, receiving training (e.g., student to do post-graduate work), scholars doing research, medical students); (3) has sufficient funds and fluency in English; (4) maintains sufficient medical insurance for accident and illness for participant and J family members in a minimum amount of $50,000 per accident or illness.
Au Pair Program: The program permits 22,720 youths from abroad to be placed with American host families seeking child care. The program is available to citizens of all nations except those lacking diplomatic relations with the United States.
Two Year Foreign Residency Requirement: Certain J visa holders are subject to a requirement that they must return to their home country or country of last residence upon completion of their training in the U.S. However, some J visa holders may be eligible for a waiver of that requirement.
A fiancee/fiance of a United States citizen who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety (90) days after entry. Minor children of the fiancee/fiance can accompany on a K-2 visa. The Petition requires the prior approval by the U.S. INS. Such approval requires that there be a bona fide intention to marry, lawful capacity, actual willingness to conclude marriage within ninety days, and prior relationship within two year period preceding the filing of the petition.
Petitions are normally valid for four (4) months periods.
Issued to parents and children of G-4 visa holders accorded special immigrant status under § 101(a)(27)(I) if child given visa during the time he is under 21 years of age.
P Visas are a special class of visas for Athletes and Group Entertainers. P-1 visas are for a person who performs as an athlete, individually or as part of a group or team at "an internationally recognized level of performance" (P-1A) or a person who performs with or is an intergral or essential part of an entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time (P-1B). P-2 visas are for artists or entertainers who are part of a Reciprocal Exchange Program, individually or as part of a group, or is an integral part of the performance. P-3 visas are for artists, entertainers, individual or as part of a group or is an integral part of the performance and enters temporarily and solely to perform, teach or coach in a commerical or noncommercial program that is culturally unique. P Visas may also be extended to essential suport personnel (8 C.F.R. § 214.2(p)(3)).
Q Visas are issued for a participant in an international cultural exchance program (must take place in school, museum, business or other establishement where the American public or a segment of the public sharing a common cultural interest is exposed to aspects of the foreign culture as part of a structured program) designated by the Attorney General for the purpose of providing practical training, employment and the sharing of the history, culture, and traditions of the country of the person's nationality. The program applies to an employer who has employees not simply an agent or office and who provides on a regular, continuous, and systematic basis goods an/or services (including lectures, seminars, and other types of cultural programs.)
Conditions of Visa: Cannot exceed 15 months, must have a foreign residence, must be employed under the same wages and working conditions as domestic workers.
Limitation on Admission: If person has spent 15 months in U.S. under a visa, then cannot be readmitted under the same status until physically outside of the U.S. for 1 year.
R Visas are issued to persons who are in the religious professions: (a) a Minister (Deacons, practitioners of Christian Science and officers of the Salvation Army may be deemed ministers); (b) a person working in a professional capacity ina religious vocation or occupation (or a (1) professional capacity requires a B.A. degree or foreign equivalent degree; (2) religious occupation is an activity which relates to traditional religious functions [e.g., cantors, liturgical workers, translators, religious broadcasters, workers in religious hospitals (except nurses)]; (3) religious vocation must relate to traditional religious function [e.g., nun or monk[; (c) a person working for a religious organization ina religious vocation or occupation; and who for at least two (2) years immediately preceding the application has been a member of the religious denomination having a bona fide nonprofit religious organization in the U.S. (does not require prior employment.)
S-1 Visas are issued to persons who are in possession of critical reliable information concerning a criminal organization or enterprise who is willing to supply or has supplied such information to federal or state law enforcement authorities or court and whose presence in the United States, as determined by the Attorney General, is essential to the success of an authorized criminal investigation or prosecution.
S-2 Visas are issued to persons for whom both the Secretary of State and Attorney General jointly determine: (1) is in possession of critical reliable information concerning a terrorist organization, enterprise, or operation; (2) is willing or has supplied such informaiton to federal law enforcement authorities or federal courts; (3) will be or has been placed in danger as a result of providing such information and (4) is eligible to receive an award under 22 U.S.C. § 2708(a).
Limit/Length of Stay: 200 visa per year for S-1; 50 visas per year for S-2. Maximum admission period is three (3) years. No extension allowed by Attorney General. No change of status is allowed from S visa, but can change to S visa. However, S visa holders may adjust status.
For more information about the above-listed non-immigrant visas, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.