A. What/ Who is a Non-Immigrant Visa?

A “non-immigrant” is a person who enters the United States for a temporary period of time and is restricted to the activity consistent with his or her visa. Generally, a non-immigrant is also one who does not intend to reside in the United States permanently. Therefore, most non-immigrant visas require that the person present to the Immigration or Consular officer that his or her intent to remain in the United States is only temporary. The following visas’ category is considered “non-immigrant”:

1. Visas for Temporary Visitors (B-1/B-2 Visas)
2. Visas for Students and Trainees (F, M, J)
3. Visas for Business Personnel (H, TN, L, E)

1. Visas for Temporary Visitors (B-1/B-2 Visas)

A temporary visitor may be a tourist visiting for pleasure (B-2 visa) or someone whose temporary visit is for business related purposes (B-1 visa). Nevertheless, the B visa category is often overlooked as a useful visa particularly for the international business person.

The B visa category is appropriate for a foreign person with a residence in a foreign country, who has no intention of abandoning the foreign residence and wishes to visit the U.S. temporarily for business or for pleasure.

Perhaps the most important limitation this category presents is that one cannot seek gainful employment or draw direct income in the form of a salary or remuneration other than an expense allowance or other reimbursement incidental to the temporary stay. Also, a B-1/B-2 visa holder is generally allowed to stay in the U.S. for a maximum of 6 months with the possibility of extending the stay for up to an additional 6-month period.

2. Visas for Students and Trainees (F, M, J)

Students seeking to pursue a degree or training in the United States have several visa options available. Visa category F are for academic students, category M is for non-academic students, category J pertains to students or professional trainees under an exchange program, and category H-3 pertains to persons coming to receive practical training in a specialized field or profession.

a. Academic Students (F-1 Visa)

To obtain a visa under category F, a person must have a foreign residence with no intention of abandoning it, and must be a bona fide student qualified to pursue a full course of study.

The applicant must also have sufficient financial support while living in the United States. Students with a F-1 visa will be admitted and be given duration of status for the time needed to complete one educational program plus an authorized period of post-completion of studies practical training plus a 60-day grace period in which to depart the U.S.

b. Non-academic Students (M Visa)

The requirements for the M visa are the same as those for the F visa except that the institution is a non-academic or vocational one. One distinction that exists between the M and F visas is that an M visa holder cannot accept employment except for practical training.

An exchange visitor is defined as a person having a residence abroad in a foreign country which 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.

Generally, this category is intended to enhance the visitor’s skills in her or his specialty or non-specialty occupation through participation in a structured training program conducted by the selecting sponsor. Similar to the F and M categories, the J visa allows limited employment in the form of practical training.

3. Visas for Business Personnel (H, TN, L, E)

There are instances where a person seeks to enter the U.S. for employment or business related purposes. There are various visa categories available to foreign professionals who have an employment offer by a U.S. company or certain foreign investors and business persons involved in trade related business. Some of the most common visas include the H-1B (professional, specialty occupation); the TN (persons engaged in activities at a professional level under the North American Free Trade Agreement); the L (intra-company transferees); and E (treaty traders and investors).

a. Professional or Specialty Occupation (H-1B Visa)

The H-1B visa category seeks to complement employers’ temporary or short-term employment needs that cannot be filled by the available U.S. labor market. The H-1B visa is perhaps one of the most common types of visa for a foreign professional who is coming temporarily to the U.S. to perform services in a “specialty occupation”.Specialty occupations may include professional accountants, attorneys, engineers, computer programmers, architects, electronic specialists, graphic designers, social workers, fashion designers and even fashion models.

To qualify for a H-1B visa, the prospective employer must first make a preliminary application with the Department of Labor to ensure that the prospective foreign professional will be paid the higher of (a) the prevailing wage paid to others with similar qualifications who are similarly employed in the same geographic area, or (b) the actual wage level paid by the employer to other employees in the same occupational category. The initial admission of a H-1B visa may be for a maximum of three years, with one extension of up to three more years. The maximum duration of this visa is a total of six years.

Immediate family members (spouse and minor children) who accompany or follow to join the foreign professional may receive a H-4 visa for the duration of the principal H-1B visa holder.

b. Professional Visa under the NAFTA (TN Visa)

TN status is a nonimmigrant visa option for Mexican and Canadian nationals involved in activities at a professional level. Similar to the H-1B visa, the criteria for TN visa require that the U.S. employer serve as petitioner for the foreign professional and articulate the type of professional activities that the prospective applicant or beneficiary will conduct once the visa is granted.

c. Intra-company Transferees (L Visa)

The L category is a visa option for U.S. companies with a foreign parent, subsidiary, affiliate or branch office interested in transferring foreign employees to the United States. Only certain U.S. companies, specifically a parent subsidiary, affiliate company or branch office of a qualifying foreign company, are eligible to sponsor executives for an L visa.

With the L visa, the USCIS can issue up to three years of maximum initial admission but is limited to a total duration of 7 years for executives and managers, and 5 years for personnel with specialized knowledge.

One noteworthy aspect of the L-1 visa is that it may be issued even if the U.S. Company is a newly created entity. Under these circumstances, the BCIS will issue an L-1 visa for one year only, and upon its renewal, the BCIS will require the petitioning U.S. Company to show compliance with managerial or executive standards.

d. Treaty Traders and Investors (E-1/E-2 Visas)

A treaty trader is an individual or a representative of a foreign company, in an executive or managerial capacity, who is coming to engage in substantial trade in the U.S. The country of origin of the person or company must have a formal commercial treaty with the U.S.

The time for admission is limited to two years with extensions of time of up to two years. One of the advantages of the E-1 as well as the E-2 visas is that they allow for indefinite extensions of stay while the trade activity or investment continues. This means that the person may renew his or her status indefinitely so long as he or she establishes that there remains an intent to depart the U.S. and not permanently remain.

The E-2 visa category is available to the individual or firm with the nationality of a treaty country that has made or is in the process of making a substantial investment in a business in the United States. Similar to the E-1 category, in the case of a company, nationality is determined by its owners whom at least 50 per cent must be from the treaty country in question.

Where the investment or enterprise is in the process of formation, the investor must show that the funds have been committed and are placed at risk. For example, a mortgage obtained from the person’s personal dwelling which in turn is used as collateral for the prospective venture in the United States will most likely be considered an investment placed at risk. Moreover, for the person to be in the process of investing, he or she must be close to initiating the actual business venture and not merely in preliminary stages, such as signing of contracts or creation of corporate entities. Mere intent to invest or possession of uncommitted funds will not suffice for purposes of the E-2 visa. Finally, the investment must be a real and active commercial or entrepreneurial undertaking, which will likely produce a service or commodity. We are the top San Diego Visa Lawyer in California.

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