Nonimmigrant Visas

Overview

Nonimmigrant visa are available for a variety of purposes. People come to the US on a temporary basis as tourists on visitor visas (B-1/B-2), as “temporary professional workers” on work-related visas (H1-B), crew members (D-1), as treaty traders or treaty investors (E-1/E-2), students (F-1), and even as witnesses and informants (S).

Generally, nonimmigrant status is defined as the intention to remain in the United States on a temporary basis, versus a permanent basis (as is the case with Family-Sponsored and Employment-Based immigration categories). Some nonimmigrant categories allow a beneficiary to come to the United States even if they have an intention to reside here permanently, the most important categories being H1-B and L visas (intracompany transferees). However, the majority of these nonimmigrant visas adhere to the rule that the person intend to return back to their country of origin at some point.

The procedures for acquiring a nonimmigrant visa generally involve obtaining a visa at a US consulate abroad using Form DS-160 electronically, although certain exceptions can apply.  US State Department regulations state that an alien applying for a nonimmigrant visa apply at the Consular Office having jurisdcition over the alien, although it some circumstances, the agency may use its discretion and allow another consulate to issue the visa. Authority for nonimmigrant visas overlaps a few federal agencies, notably the US Department of State, US Department of Homeland Security, and for certain job-related nonimmigrant visas, the US Department of Labor. As one can imagine, each visa has its own unique set of requirements and varying levels of documentation will be required depending upon what visa is sought. If you are seeking a nonimmigrant visa and have potential issues or questions, please contact this office for further information.

Common Nonimmigrant Visas

  • F-1: Student Visas: These visas allow the recipient to come to the United States to study in full, or in certain cases, part time course at US educational institutions. Among other requirements, students must demonstrate they are enrolled in an academic program, not merely a vocational program, be fluent in English or be enrolled in courses that teach English, and must have sufficient financial resources to cover their expenses for the duration of stay. The school must be SEVP (Student and Exchange Visitor Program) certified and the prospective student is required to use the SEVIS-generated Form I-20 to obtain a certificate of eligibility before applying at their designated consulate.
  • H-1B Persons in Specialty Occupation: One of the most common and highly sought after nonimmigrant visas requires “the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education.” This includes, but is not limited to, architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requires a bachelor degree or it’s equivalent (65,000 annual limit). H1-B visas are issued for three years, extendable to six, and allow the recipient to “have an intention to reside permanently in the United States” (one reason it is so popular). The annual cap is reached quickly and for Fiscal Year 2013, was  reached in June, 2012. The government will not be accepting any more H1-B petitions until April, 2013.  (Note, before applying for a temporary worker visa at the U.S. Embassy or Consulate abroad, applicants must obtain an approved Form I-129, Petition for Nonimmigrant Worker, from the USCIS.)
  • H-2A Seasonal Agricultural Workers: Allows US workers or agents who meet specific regulatory requirements to bring certain foreign nationals into the US to fill temporary agricultural jobs. These jobs also require a labor certification from the Department of Labor and are issued in one year increments, subject to a maximum period of stay of three years before the alien must depart the United States (they can apply for readmission after three months abroad). Unlike other nonimmigrant visa categories, there is no cap on these visas.
  • H-2B Temporary or Seasonal Nonagricultural Workers: Allows US workers or agents who meet specific regulatory requirements to bring certain foreign nationals into the US to fill temporary nonagricultural jobs. The annual cap is 66,000 visas, split into two halves of 33,000 for the first and second halves of the year (to account for seasonal demands that might be unfairly impacted).
  • J-1 Exchange Visitors: The Exchange Visitor (J) non-immigrant visa category is for individuals approved to participate in work-and study-based exchange visitor programs. This category is highly popular for foreign doctors undertaking US internships and residencies and is available for a duration of seven years for these physicians (and can even be increased over under complicated Department of State rules).
  • L Intracompany Transferees: Are those who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity.  Individuals in this category will receive an L-1 visa for an initial three year period, extendible to a maximum of 7 years.
There are many other types of nonimmigrant visas and these can be viewed on the Department of State’s website. If you would like to apply for a nonimmigrant visa and would like assistance with the application, please contact this office for a consultation.