TEMPORARY VISAS – BUSINESS, INTERNS/TRAINEES, STUDENTS*
NOTE that Nonimmigrant Visa = NIV = Temporary Visa
…all terms mean the same thing!
*See FAMILY VISAS for temporary & permanent family visa options
The lawyers of Ryvin Wallace Group utilize knowledge, skill and experience to strategize the best temporary visa (nonimmigrant visa) options for inquiring clients. We ask you to tell us your life and business realities so we can help you obtain the appropriate temporary visa to the United States. In a strategy meeting, we listen and identify the temporary visa classifications that are applicable to your needs. We factor in everything that concerns you:
timing/speed until you are using the visa on US soil, ability to change status if
needed, ability to move toward green card, if needed whether you can obtain work
status for spouse children who might age out of derivative status at 21 years of
age and of course: cost.
Our job is to think of immigration solutions on your behalf and then explain them to you as clearly as possible. When you say you’re ready to start, you should feel comfortable that you are going in the right direction and that you understand your odds. Understanding the nuances of the law is our job, however, we list below the A-thru-Z list of TEMPORARY VISAS (OR NONIMMIGRANT VISAS) available as stated in the US Immigration & Nationality Act (INA).
Most nonimmigrant visas are listed below, however, commonly used business, student and intern visas contain BOLD titles in the expanded text below and are also short-listed here:
An ambassador, public minister, or career diplomatic or consular officer who has been accredited by a foreign government recognized de jure by the United States and who is accepted by the President or by the Secretary of State [A-1]; upon a basis of reciprocity, other officials and employees who have been accredited by a foreign government [A-2]; and attendants, servants, personal employees, and members of their immediate families, of the officials and employees who have A-1 or A-2 nonimmigrant status [A-3]
B-1/B-2: BUSINESS VISITORS & TOURISTS*
An alien having residence in a foreign country which s/he has no intention of abandoning and who is visiting the United States temporarily for business [B-1] or pleasure [B-2]. Entry allowed up to 6 months days but determined at the port of entry.
: Nationals of certain countries may be eligible for the Visa Waiver program or be visa exempt (like Canadians) allowing entry for up to 90 days. The same restrictions on activities apply as listed for B-1 and B-2 Visitors.
C: TRANSIT VISAS
An alien in immediate and continuous transit through the United States, or an alien who qualifies as a person entitled to pass in transit to and from the United Nations Headquarters District and foreign countries. Immediate defined as reasonably expeditious departure in normal course of travel as elements permit and prearranged itinerary assumes. No unreasonable layover privileges. If want to visit friends, etc. need
An alien crewman serving in good faith as such in a capacity required for normal operation and service on board a vessel (other than a fishing vessel having its home port or an operating base in the United States) or aircraft, who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft [D-1]; an alien crewman serving in good faith as such in any capacity required for normal operations and service aboard a fishing vessel having its home port or an operating base in the United States who intends to land temporarily in Guam or the Commonwealth of the Northern Mariana Islands and solely in pursuit of his calling as a crewman and to depart from Guam or the Commonwealth of the Northern Mariana Islands with the vessel on which he arrived [D-2].
E-1/E-2: TREATY TRADERS & TREATY INVESTORS
An alien entitled to enter the United States under a treaty of commerce and navigation between the US and the foreign state of which s/he is a national,
solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which s/he is a national [E-1]; or
solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing a substantial amount of capital [E-2].
The basis of the E-1 and E-2 classifications lies in treaties that were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and treat country. A list of treaties or the equivalent in effect between the United States and other countries, which give rise to E-1 and E-2 eligibility, appear in the Foreign Affairs Manual.
E-3: AUSTRALIAN PROFESSIONALS
Established as a new category in 2005, the E-3 allows an Australian to enter the US solely to perform services in a specialty occupation, who meets the requirements for the occupation. The occupation must require at least a bachelor’s degree or equivalent experience. Like H-1Bs, the Employer must demonstrate the alien is to be paid at least the prevailing wage for the position.
F-1: ACADEMIC STUDENTS
An alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study through a full-time, non-vocational, academic program at post-secondary institution. Status is granted for duration of status (d/s). Absent prior permission by the school and DHS, the student must be enrolled at school full-time in order to maintain F-1 status. An F-1 student may work pursuant to curricular practical training (CPT) program during school years. In addition, an F-1 student may work pursuant to optional practical training (OPT) program while in school or after graduation for up to one year. OPT must be completed within 14 months of the completion of study. An F-1 student is given a 60-day grace period to depart the U.S. immediately following either completion of study or OPT.
G: REPRESENTATIVES GOVERNMENTS & INTERNATIONAL ORGANIZATIONS
Designated principal representatives of recognized foreign countries and members of international organizations entitled to enjoy privileges, exemptions, and immunities as an international organization under the International Organizations Immunities Act. Includes accredited resident members of the staff of such representatives, and members of his or their immediate family.
• G-1s are for members of a permanent mission of a recognized government [G-1];
Representatives of a recognized government and their immediate family, military officers assisting the UN with peacekeeping matters, attendees of course at IMF and World Bank, other accredited representatives and immediate family [G-2];
G-1/G-2 from government without de jure recognition from U.S. or nonmember country of international organization [G-3];
Officers and employees of international organization and immediate family, includes “personnel of any rank” [G-4]; and Attendants, servants and personal employees of G-1 to G-4 [G-5].
An alien who is coming temporarily to the United States to perform services in a specialty occupation or as a fashion model, who meets the requirements for the occupation (at least a bachelor’s degree or equivalent experience) or in the case of a fashion model, is of distinguished merit and ability. Employer to demonstrate alien is to be paid at least the prevailing wage for the position.
*There are several H visa categories including:
(a) H-1B professionals, including H-1B1 visas for nationals of Chile and Singapore; (b) H-1C nurses in shortage areas; (c) H-2A temporary or seasonal agricultural workers in short supply; (d) H-2B temporary nonagricultural workers in short supply; and (e) H-3 trainees.
A person who was previously granted a visa or otherwise held H-1B status may commence new employment upon the filing of a new petition by the prospective employer if: (1) s/he was lawfully admitted; (2) the new petition is “nonfrivolous”; (3) the new petition was filed before the date of expiration of the period of stay authorized by the AG of the H-1B beneficiary; and (4) subsequent to such lawful admission the H-1B beneficiary has not been employed without authorization before the filing of such petition.
Extensions of H-1B Status Beyond Six Years
An H-1B may extend his or her status beyond the 6-year limitation if a labor certification, an I-140
or employment-based adjustment application has been filed at least 365 days prior to the expiration of his current period of H-1B status. An H-1B may also be extended beyond the 6-year period for any person who is the beneficiary of a first, second, or third employment-based petition but due to per country limitations is unable to file for or obtain his or her immigrant visa. However, the person must have an approved I-140 petition to qualify. An extension may be granted more than one time for periods of up to three years at a time.
H-1B Employers, LCAs and Attestation Requirements
Before an H-1B application can be submitted an employer must obtain certification of a labor condition application from the Department of Labor (“DOL”). The DOL has been actively auditing H-1B employers to ensure that they are in compliance with all H-1B requirements, including requirements relating to Labor Condition Application (LCA) posting, payment of required wages, public examination files and any required non-displacement inquiries. Failure to comply with all LCA requirements may result significant back-pay awards, fines and a debarment from all future approvals of any NIVs, IVs, or LCs for at least one year.
Temporary worker invited by an individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The training program must be one “that is not designed primarily to provide productive employment.” Proposed training not available in alien’s home country; Beneficiary will not be placed in a position in which citizen and resident workers are regularly employed; No productive employment unless it is incidental and necessary to the training and pursuing a career outside the U.S. The training will benefit the beneficiary in pursuing a career outside the U.S. If the program has any of the following flaws, it is unacceptable: Deals in generalities with no fixed schedule, objectives, or means of evaluation; Is incompatible with the nature of the petitioner’s business or enterprise; Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training; Is in a field in which it is unlikely that the knowledge or skill will be used outside the U.S.; Will result in productive employment beyond that which is incidental and necessary to the training; Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the U.S.; Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.
I: JOURNALISTS & MEDIA REPRESENTATIVES
An alien who is a bona fide representative of foreign press, radio, film, or other foreign information media, who seeks to enter the United States solely to engage in such vocation. Includes not only primary employees of foreign information media engaged in filming news events or documentaries, but also employees of independent production companies if the employees either: (1) hold a credential issued by a professional journalistic association; or (2) if no such credential is available because the sending country has no credentialing authority or the authority does not offer credentialing to the class of media representatives to which the employees belong. Does not include film production/distribution unless film is informational or educational.
J-1: EXCHANGE VISITORS
An alien having a residence in a foreign country which s/he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.
J-1 programs often cover students, short-term scholars, business trainees, teachers, professors and research scholars, specialists, international visitors, government visitors, camp counselors and au pairs. In some cases, participation in a J-1 program will require the beneficiary to spend at least two years outside of the United States before being permitted to switch to a different non-immigrant visa or to permanent residency. A beneficiary may be eligible for waiver of the 2 year home residency requirement that applies to many J-1 visa holders.
L-1A/L-1B: MULTINATIONAL MANAGERS & EXECUTIVES and SPECIALIZED
An alien who, within three years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or a subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive [L-1A] or involves specialized knowledge [L-1B]. Executives and managers holding L-1 visas may be eligible for permanent residency without the need for a labor certification.
Means an assignment with an organization in which the employee primarily: (1) manages the organization, department, subdivision, function or component; (2) supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization; (3) has authority to hire and fire or recommend personnel actions (if other employees directly supervised), or if no direct supervision, functions at a senior level within hierarchy or as to function managed and (4) exercises discretion over day-to-day operations of the activity or function;
Means an assignment in an organization in which the employee primarily:(1) Directs the management of the organization or a major component or function;(2) Establishes goals and policies; (3) Exercises wide latitude in discretionary decision making and (4) Receives only general supervision or direction from higher level executives, board of directors or stockholders.
In determining whether an individual is acting in a managerial or executive capacity, AG shall take into account the reasonable needs of the organization, component or function in light of the overall purpose and stage of development of the organization, component or function.
A person who has special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. Characteristics include: (a) Possesses knowledge that is valuable to the employer’s competitiveness in the market place; (b) Is uniquely qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions; (c) Has been utilized as a key employee abroad and has been given significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position; and (d) Possesses knowledge that can be gained only through extensive prior experience with that employer.
M-1: VOCATIONAL STUDENTS
Similar to F-1, except at a vocational/nonacademic institution. Full Course Defined: Study in community/junior college for 12 semester/quarter hours leading to a specific educational and/or vocational objective; Study at a post-secondary vocational/business school (other than language training program) which confers a degree or has its credits accepted by 3 accredited academic institutions. Twelve hours of instruction/week or its equivalent are required; Study in vocational or other nonacademic curriculum (including a language training program taken at the school to further vocational training). Flight schools, cooking schools and other vocational schools would be included. No Online Courses – distance education or online courses cannot count toward an M-1 student’s full course of study unless the course requires the student’s physical presence. M-1 visa holders may not change their status to another nonimmigrant status.
O-1/O-2: ALIENS OF EXTRAORDINARY ABILITY
An alien who has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue to work in the area of extraordinary ability [O-1]; or 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 O-1 alien for a specific event or events, is an integral part of such actual performance, has critical skills and experience which such alien which are not of a general nature and which cannot be performed by other individuals, or in the case of a motion picture or television production has skills and experience with such alien which are not of a general nature and which are critical either based on a preexisting longstanding working relationship or, with respect to the specific production, because significant production (including pre and post production work) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production [O-2]. Must have foreign residence which the alien has no intention of abandoning.
P-1/P-2/P-3: ATHLETES & ENTERTAINERS
Individual athletes and group entertainers, as well as their essential support personnel, who have accomplished international notoriety over a sustained period of time (subject to the special regulatory provisions which provide a limited exception for entertainment groups that have managed to garner sustained national notoriety as opposed to international notoriety where there might be limited access to news media or consequences of geography that would make it difficult to acquire international recognition) [P-1]; Artists or entertainers, individually or as a group, as well as their essential support personnel, who will be performing under a reciprocal exchange program which is between an organization or organizations in the United States, which may include a management organization, and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers [P-2]; Artists or entertainers, individually or as a group, as well as their essential support personnel, coming to the United States for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance presentation [P-3].
Q-1/Q-2: CULTURAL EXCHANGE VISITORS
An alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily (for a period not to exceed 15 months) to the United States as a participant in an international cultural exchange program approved by the Secretary of Homeland Security for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien’s nationality and who will be employed under the same wages and working conditions as domestic workers [Q-1]; an alien 35 years or younger who resides in Northern Ireland or the counties of Louth, Monaghan, Cavan, Leitrim, Sligo, or Donegal within the Republic of Ireland and seeks to temporarily enter the U.S. for a period not longer than 36 months to participate in a cultural and training program for the purpose of providing practical training, employment, and the experience of coexistence and conflict resolution in a diverse society [Q-2].
R-1: RELIGIOUS WORKERS
An alien who, for the two years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit religious organization in the United States; and seeks to enter the United States for a period not to exceed five years: (i) solely for the purpose of carrying on the vocation of a minister of that religious denomination; (ii) in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or; (iii) in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986) at the request of the organization in a religious vocation or occupation; and has been carrying on such vocation, professional work, or other work continuously for at least the two years immediately preceding the time of application for admission.
TN: NAFTA PROFESSIONALS FROM CANADA and MEXICO
Citizens of Canada or Mexico seeking temporary entry under NAFTA (North American Free Trade Agreement) to engage in business activities at a professional level. “Activities at a Professional Level” under NAFTA is defined as having to fall into a profession on the NAFTA list and requiring at least a baccalaureate degree or appropriate credentials demonstrating status as a professional. TNs, unlike H-1Bs, enjoy no statutory limitation on stay, but must prove their intent not to immigrate.
All of the pre-designated professions listed in the NAFTA, with the exception of two, Management Consultant & Scientific Technician Technologist, require possession of at least a baccalaureate degree. Unlike the other TN applications, which often require nothing more than a Canadian passport, a job offer letter, and a copy of the applicant’s degree, the Management Consultant application routinely receives more scrutiny from US CBP Officers and consequently, requires substantially more evidence and preparation.
Management Consultant applications should include a consulting agreement; letters from prior employers documenting at least five years of related experience; a letter of support from the US entity to whom the applicant will be providing consulting services, which justifies their need for the applicant’s consulting services; and appropriate evidence of the US entity’s company operations. Applicants should also be prepared for extensive questioning at the Port of Entry/Pre-Flight Inspection.
The TN application may be made in person by submitting paperwork to US Customs & Border Protection (CBP) at a US/Canadian Port of Entry or Pre-Flight Inspection; and applicants may now seek three years of TN status, as opposed to only one.
Notably, we often will seek a term which matches the duration of the consulting agreement. As a practical matter, despite being eligible for three years, lengthy consulting agreements (or multiple renewals of TNs for Management Consultants with the same company for that matter) tend to give US CBP Officers the impression the applicant will be an “employee” of the firm; as opposed to someone who will be consulting, i.e. coming in to analyze, provide suggestions and then moving on to the next project.
S, T, U: LAW ENFORCEMENT VISAS
An alien 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 U.S. is essential to the success of an authorized criminal investigation or prosecution [S-1].An alien who both the Secretary of State and Attorney General jointly determine is in possession of critical reliable information concerning a terrorist organization, enterprise or operation; and is willing or has supplied such information to federal law enforcement authorities or federal court; will be or has been placed in danger as a result of providing such information; and is eligible to receive an award [S-2].
An alien who has been subject to severe forms of trafficking in persons, i.e. the use of force fraud or coercion for sex trafficking and/or involuntary servitude, peonage, debt bondage or slavery [T Visa].
An alien who has suffered substantial physical or mental abuse as a result of having been a victim of certain crimes [U Visa]
Please contact one of the partners of Ryvin Wallace Group to set up a consultation to explore your temporary business, student or trainee immigration options today!