Visas are the passes that are necessary when applying to enter the United States on a temporary (non-immigrant visas) or permanent (immigrant visas) basis.
Depending upon the type of visa, a person may be allowed to work, attend school, obtain specialized training, vacation, receive medical treatment, or remain indefinitely. Certain visas allow a person to change or "adjust status" while in the United States such as:
· A person may enter the country on a tourist visa and change to a student visa in order to attend school
· A person may come on a temporary visa and apply for permanent residency
Other visas require that the person enter the United States for a specified period of time and return home.
A non-immigrant visa is applied for at the United States Consulate in the person’s home country. Because these visas are temporary, the person must demonstrate:
· The economic means of support while in the United States
· Intent to return to the home country
There are many types of non-immigrant visas, depending upon the purpose of the trip. For example, there are special visas for fiancées of United States citizens, diplomats, tourists, business people, au pairs, exchange visitors, registered nurses, musicians, athletes, performers, and many more.
U.S. companies can apply for business visas to temporarily bring over foreign workers. Some examples include:
· H1 visas allow workers with specialized training, such as engineers, chemists, or computer analysts, to temporarily come to the United States to engage in specialized work.
· L-1 visas allow certain managers, executives, or employees with specialized knowledge of their company to come to the United States to open a new office or to work in an existing office of the same overseas company.
While these visas are temporary, a person with an H1 or L1 visa may be able to apply for permanent residency if the person desires to permanently stay in the United States.
· B-2 tourist visas allow a person to spend up to six months in the United States for pleasure (no work authorization) with the possibility of an extension from the INS.
· B-1 business visitor visas allow business people to participate in trade shows, scientific, educational, or religious conventions, and engage in business-related activities (negotiating contracts, consulting with clients, litigation) while in the United States. However, the person cannot take a position that would require a working visa and cannot be paid by a U.S. company.
F visas are available for students temporarily coming to the United States to pursue a full course of study at an established institution of learning.
Visitors Who Do Not Need Visas
Under the Visitor Waiver Pilot Program (in effect until April 30, 2000), certain types of visitors from 26 specified countries are allowed to temporarily enter the United States without applying for a visa.
As of April 28, 1998, the participating countries are: 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. New countries can be designated at any time.
Under this program, a person from one of the 26 participating countries can enter the U.S. without a visa if they:
· Are traveling for business or pleasure
· Will stay in the United States for 90 days or less (no extensions or changes/adjustments of status allowed)
· Enter the United States at a land border or aboard a participating carrier
· Have an onward or return ticket if traveling by air or sea
· Are not ineligible for a visa
Immigrant visas ("green cards") are for people who plan to permanently remain in the United States. Green cards can be obtained through close family members, employers, asylum after one year or the diversity lottery.
Visas are always available for immediate family members of U.S. citizens (spouse, parent and minor child).
Persons who have to wait for visas to become available include:
· Other family members of U.S. citizens (sibling, son or daughter over 21 years of age)
· Immediate family of lawful permanent residents (spouse, child, unmarried son or daughter)
· Persons immigrating through employers
The length of the wait for a visa varies depending upon the country of nationality and the type of family relationship or business visa (preference category). Once a visa becomes available, the person must show that they are admissible to the United States by:
· Obtaining someone willing to sponsor them so that the sponsored person does not become a public charge
· Proving that they have passed a medical exam and have required vaccinations
· Demonstrating that they cannot pose a security risk
· Proving that they cannot have committed crimes or engaged in immoral behavior
Pursuant to the new immigration law:
· A person who leaves the United States after being here unlawfully for over 180 days is barred from returning for 3 years.
· A person who leaves the United States after being here unlawfully for over one year is barred from reentering for 10 years. (There are discretionary waivers in limited circumstances)
Employment-Based Immigrant Visas
Employment-based immigrants will need a U.S. company to sponsor them in order to obtain a green card. This does not include:
· Immigrants with extraordinary abilities (e.g. athletes, musicians, artists, scientists)
· Certain investors
· Special immigrants (e.g. religious workers, juvenile wards of the court)
Before a U.S. employer can sponsor a foreign worker, the employer must persuade the Department of Labor to certify that there are no American workers available for the position being taken by a foreign worker. Visas are sooner available for positions requiring at least two years of experience, than for positions requiring less experience.
Those family members (must be a spouse or unmarried children under 21) who are eligible to receive immigrant or nonimmigrant visas based on their relation to the visa holder.
Adjustment of Status
The process of adjusting the alien's status from nonimmigrant to immigrant. This can take place as a part of the "Green Card" process. When all the proper forms and supporting documents are filed with INS for the Adjustment of Status, an interview is scheduled, which, if all goes well, should result in the stamping of the immigrant visa in the passport. The counterpart of the Adjustment of Status is "Consular Processing".
INS permission to travel abroad while adjustment of status is pending approval.
Affidavit of Support
An affidavit of support is the contract that an immigrant's sponsor signs, agreeing to financially assist the immigrant to prevent him/her from becoming a public charge.
A person who is not a citizen or a national of the US. The term refers to all foreign nationals in the US, whether they are here temporarily or with permanent resident ("green card") status.
Alien Registration Card
INS Form I-551, also called the "Green Card". This card holder has obtained permanent residence status.
The I-797 form that shows that the petition or form filed with INS has been approved. In the case of the alien waiting on an H-1B to be approved, an Approval Notice means their employment has been approved and they may start working for the new employer. If the alien will be entering the US for the first time or is "out of status", they will need to visit a US Embassy outside the US for visa stamping before actually going to work for the new employer.
Humanitarian permission to remain in the US.
An alien who is the recipient of an application filed on their behalf by another individual or organization.
An unmarried son or daughter under 21 years of age.
A person who, either through birth or through naturalization, has full rights, privileges and protection of living in the US.
When an alien has applied for and been approved for an immigrant visa (Green Card), the normal way to ultimately become a permanent resident is through immigrant "visa processing" at a U.S. consulate in the alien's home country. This, of course, requires costly travel, and time away for their job, so most aliens choose the "Adjustment of Status" process, which can take place while in the US.
INS offices located throughout the US. For our usual purposes, these are the offices where the Adjustment of Status paperwork is filed by the alien, as the final step in the Immigrant Visa process. These offices are not to be confused with Service Centers.
Diversity Visa Program (Green Card Lottery)
A free annual lottery held by the US government which attempts to increase diversity in the US population by randomly selecting people from those countries which have the fewest immigrants to the US relative to their population.
Short term (acronym) for the Department of Labor.
Having citizenship in two countries; Allowed in the US as long as US citizenship is not renounced or activities in second country are beyond that of an ordinary citizen.
Employment Authorization Document
Also called "EAD". If an alien posses this card, he is authorized to work without having the employer file a petition for nonimmigrant worker. Make sure the card is valid, however, by checking the expiration date...if it is expired, DO NOT HIRE THIS PERSON! Most common cases we see for an alien to have an EAD is when a foreign student graduates from a US university, they may be granted an EAD to work on "practical training", usually issued for a period of one year, at which time can be changed to H-1B status. Also, when an alien has applied for the Adjustment of Status (as a part of the Immigrant Visa process), they may obtain an EAD to continue employment while the adjustment is pending.
Process of being denied entry into the US.
An individual who is a citizen or a national of a country other than the United States.
Form I-94 Arrival and Departure Record
A document that is issued to every alien who enters the US for a temporary stay and who is officially inspected by a US Immigration Officer. This document is stapled in the passport and indicates the amount of time the individual can initially remain in the US. This card should be white in color if the alien is entering the U.S. for employment purposes.
If the I-94 card is green, this is a Visa Waiver card and is not valid for employment purposes.
Form I-102 Application for Replacement/Initial Non-Immigrant Arrival-Departure Document
Filed when an I-94 Card needs to be replaced. Or if an I-94 Card was not issued upon entry into the US, this form may be filed with an application to extend the visa.
Form I-129 Petition for Non-Immigrant Worker
Form to file with INS for processes concerning non-immigrant workers. Most of the visas our clients deal with will be H-1B classification. When you receive Approval of this petition, the "Case Type" listed on the Approval Notice (I-797) will be "I-129".
Form I-134 Affidavit of Support
Primarily used in cases involving persons who are applying for an immigrant visa. This form is to affirm that the listed dependents (spouse and children under 21), will be properly financially supported and will not become a public charge.
Form I-140 Immigrant Petition for Alien Worker
Form to file with INS when processing an employment - based immigrant visa (to obtain a "Green Card"). This petition must be approved before the alien may go to the next step of the Adjustment of Status.
Form I-539 Application to Extend/Change Non-Immigrant Status
Used to extend the visa period of stay or change the status for non-working family dependents, or for a worker changing status to a dependent.
Form I-797 Notice of Action
A document that is issued by the US Department of Justice, Immigration and Naturalization Service, showing "action" taken on a particular process. In our business, the most frequent use of this form is either a "Receipt Notice" or an "Approval Notice" (see definitions of each).
Form I-824 Application for Action on an Approved Application or Petition
Form used to request a duplicate Approval Notice or to send notification of a previously approved petition to a U.S. Consulate or Port of Entry.
Form N-400 Application for Naturalization
Form to file with INS to begin the Naturalization (Citizenship) process.
Nonimmigrant Visa Application, Optional Form 156. This is a Department of State form, not an INS form. This form is completed by the alien prior to receiving the visa stamp.
A slang term for the identity document or alien registration receipt card issued to permanent resident (immigrant) aliens. The card includes the alien's photograph, fingerprint and signature, and allows the holder to live and work legally inside the U.S. The card also lets the holder travel outside the U.S. and return as long as primary residence in the U.S. is maintained. At one time the form I-551 identity card was green, which is how it derived its name. It has undergone many revisions, and is now pink! The care is renewable after ten years.
This term is also commonly called "work visa". "H-1B" refer to the classification for Specialty Occupations.
The visa that is obtained for a dependent (spouse or child under 21) of an H classification visa holder.
Also known as an undocumented immigrant, this is someone who enters or lives in the United States without official authorization, either by entering without inspection by the INS, overstaying their visa, or violating the terms of their visa.
Spouses, parents and children of United States Citizens.
An alien who comes to the US to live permanently.
Immigration and Naturalization Service (INS)
A branch of the US Department of Justice. The INS is responsible for admitting foreign nationals into the US, and processing all immigration and naturalization related applications made by, or on behalf of, foreign nationals. The INS maintains offices throughout the US and in several foreign countries.
Posting a notice for public examination which shows a company's intention to hire an H-1B Status alien. Among other things, the posting will verify that the salary offered is no less than 5% below the prevailing wage for other workers in the same profession. The most common way of posting is to post the actual form ETA 9035 Labor Condition Application (LCA). Job Posting is also referred to in the Immigrant Visa (Green Card) process during the "recruitment" phase.
The first step in receiving an employment-based visa for certain classes of workers. The potential US employer must first undergo an elaborate and often lengthy process of advertising the position, based on specific instructions from the US Department of Labor, to ensure that no qualified American workers are available to perform the job before hiring the foreign worker.
Labor Condition Application (LCA)
Form ETA-9035. Must be filed with the DOL and signed by the regional certifying officer before we can send a petition for non-immigrant worker (I-129) to INS. When an employer signs this form, they attest that they have followed certain "rules" of hiring an H-1B worker. When considering the hire of an H-1B worker, the employer must be willing to attest to all of these conditions to meet DOL regulations.
When an alien is eligible to become a naturalized citizen of the US. There are several requirements for eligibility...the first being, that they must have been admitted as a permanent resident, and must have maintained that status for at least five (5) years.
An alien who comes to the US for a temporary stay.
Optional Practical Training
When a foreign student graduates from a U.S. university, they are eligible to apply for an Employment Authorization Document. The EAD will give them an opportunity to become employed in the U.S. in the field of study under which they have just graduated. The OP-EAD, as it is sometimes called, is valid for 12 months, and is not renewable. Before the OP-EAD expires, however, the status may be changed to an H-1B visa or TN visa, requiring sponsorship by a U.S. employer.
Out of Status
When an alien is in the US, but has gone beyond the boundaries of the visa. There are many reasons for being "out of status", but the two most common reasons we see are: (1) the visa extension has not been filed on time before it expired, or (2) the alien has been terminated or becomes ineligible to work, for any reason, and is unemployed. When the H-1B worker becomes unemployed, for whatever reason, the visa automatically become invalid, even if the date of the visa has not actually expired.
Permission which allows a foreign national to physically enter the US yet still be considered to not have legally entered the country.
A document issued by a government that identifies the holder and his citizenship, and permits that individual to travel abroad.
Permanent Residence Status
Confers on foreign nationals the right to live and work in the US without time limitations. Individuals are given alien registration cards upon approval of their application for permanent residence and are thereafter called permanent resident aliens. "Immigrant" is another name for permanent resident alien.
When an alien says, "I have my green card", this means they have permanent residence status and do not need to be sponsored for an H-1B visa.
The forms and appropriate supporting documentation filed with the INS to seek approval for a nonimmigrant or immigrant worker is referred to as "the petition".
The employer or individual that is filing an application on behalf of an alien.
Port of Entry (POE)
Location (city) where the alien first enters the US.
Certain groups of people are given first chance at the green cards available under a quota every year. The two main preference categories are family preference and employment preference.
Immigrants who become dependent upon public assistance, fail to find employment, and are unlikely to be self-supporting in the future may be deported on the grounds that they have become a "public charge."
Form I-797 that shows that INS has received your form or petition and are now proceeding to process. It will give you an estimate of just how long the processing will take on your particular case.
A person outside of the US and unable or unwilling to return to his or her country because of persecution or a well-rounded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group.
INS has four service centers throughout the US, which processes all our petitions and most other forms we may file for various reasons. These service centers are not to be confused with district offices.
Description of foreign national (or "alien") issued by the INS inspector upon entering the U.S.
When any alien is "present in the United States after the expiration of the period of stay authorized by the Attorney General or [being] present in the United States without being admitted or paroled." [Section 212(a)(9)(B) of the Immigration and Nationality Act]. The Immigration and Naturalization Service (INS), in a September 19, 1997 memo, has interpreted this to mean that only time spent in the United States beyond the date of expiration on an I-94 card will count as unlawful presence. An alien may also begin to accrue unlawful presence if he is in the U.S. without inspection or parole, if he is found to have violated status by a Service director or an immigration judge, or if the Service terminates the parole granted to an alien.
Valid H1-B Status
In order to maintain valid H-1B status, an alien must remain employed, by an approved US sponsor (petitioner). If the alien is terminated or becomes ineligible to work, for any reason, they are not considered in valid H-1B status. INS will usually allow a period of 30 days between jobs, but will usually consider the alien to be "out of status" if the period of employment goes beyond 30 days. Once "out of status", the only way for an alien to get back in valid H-1B status is to find new employment. Upon approval of that new petition, the alien must exit the US for visa revalidation before commencing his new job.
Document needed for travel to the US. An individual planning to travel to the US from any country as a nonimmigrant must apply for entry permission at an American Consulate outside the US. A stamp (visa) placed in the passport, permits the individual to board a vessel to the US.
A process to extend the period of stay of a nonimmigrant.
Also called "visa stamping". When the visa, which is stamped in the alien's passport, expires, it is necessary (for travel purposes) to have the visa stamp revalidated and extended, in connection with an approved petition. The best and easiest way to accomplish this is by sending the passport to the Department of State in Washington D.C., but this must be done in a timely manner. Stamping can also take place at any U.S. Embassy outside the boundaries of the U.S. If the visa has been expired for more than a year, the alien has no choice but to exit the US for stamping.
Visa Waiver Pilot Program
Enables citizens of participating countries to travel to the U.S. for tourism or business for 90 days or less without obtaining a US visa. The holder of a Visa Waiver is not authorized for employment and cannot change status while in the US.
Visitor Visa (Tourist Visa)
B-1 or B-2 Visa - Given to citizens of a foreign country who wish to enter the US temporarily for Business or Pleasure. The holder of this visa is not authorized for employment while in the US.