Visas

Most non-immigrants entering the U.S. each year are visitors for pleasure, tourist, or vacation (B-2 visas) and for business (B-1 visas). Persons entering the U.S. with B-1 or B-2 visas may not attend academic schools and may not work in the U.S.

B-1 visitors may come to the U.S. for a legitimate commercial or professional activity, such as to participate in business transactions, to negotiate a contract, participate in litigation, meet with a client or business associates, as long as the business activity does not involve active management of a business and the visitor does not receive salary or generate income in the U.S., other than receiving expense reimbursement or generating income abroad. B-1 visitors may also come to attend a seminar, an exhibition, participate in a tournament, to do independent research or to observe and consult the work of others.

B-2 visitors may come to the U.S. for tourism, to visit friends and relatives, to receive medical treatment, to participate in social and religious organizations, sports, art, and music events, to take a short course of study (as long as they don’t earn academic credits), to attend a summer camp, etc.

B-1 and B-2 visitors are usually authorized to stay in the U.S. for 6 months, but the stay may be extended for another 6 months. However, B-1 or B-2 visas should not be used to create permanent residency by leaving and returning every 6 months. If a foreign citizen habitually spends less than 6 months in a foreign country before returning to the U.S., the re-entry may be barred. 

Temporary visitors also can change their nonimmigrant status to another nonimmigrant category while in the U.S. if the purpose of their visit has changed, as long as they do so before the authorized stay expires. Failure to depart the United States on time may result in a denial of a visa application in the future. Some foreign citizens are exempt from the visa requirements, e.g., Canadian and Bermuda citizens and citizens of countries participating in the Visa Waiver Program. 

Foreign citizens applying for a temporary B-1/B-2 visa must demonstrate that they
(1) have a residence in a foreign country,
(2) they have no intention of abandoning their foreign residence, and
(3) they want to visit the U.S. temporarily for business or pleasure.

Foreign citizens must prove their intent to depart at expiration of the stay by producing the following documents at the visa interview:
(1) Proof of employment in their country and proof of vacation from that employment
(2) Adequate finances for travel, including a round-trip ticket and staying in the U.S. (may use an affidavit of support from friends and relatives in the U.S.)

A letter of invitation is not needed to apply for a nonimmigrant tourist visa, and it will not guarantee the approval of the visa.

The visa determinations of consular officers are for the most part final and non-appealable. It is therefore important to meet all legal and procedural visa requirements to increase the chances of getting approval.

There are 2 types of student visas – F and M. F visas are for academic studies. M visas are for vocational/nonacademic studies. F-1 visas may lead to permanent residency in the U.S. and eventual U.S. citizenship.

The F and M program is administered by SEVP, not USCIS. SEVP an office within ICE. SEPV administers the Student and Exchange Visitor Information System (SEVIS), which maintains the definitive record of student status and visa eligibility.

Before an applicant can apply for a student visa, the applicant must have a SEVIS I-20 issued by an approved school. To get I-20, the applicant must apply with the school and meet the requirement for the program, which generally are: (1) the applicant must maintain a full course of study, (2) the applicant must have sufficient funds to live and attend school in the U.S., and (3) the applicant must be proficient in English.

If approved, the applicant will register with SEVIS and pay the SEVIS fee. The school will issue an I-20 form, which is essentially a student’s SEVIS record. After the I-20 has been issued, the applicant can apply for a student visa at a U.S. Consulate.

The student can enter the U.S. 60 days before the before the start of study and remain in the U.S. for the duration of stay, i.e., until they complete the study and any authorized optional practical training (OPT), plus the grace period of 60 days. During the 60-day grace period, the student may apply for change of status to another nonimmigrant visa or transfer to another educational level or another school.

The post-completion OPT can be up to 12 months, but a 24-month STEM OPT extension is available for STEM degrees, such as science, technology, engineering, mathematics, etc., for the maximum combined duration of OPT of 36 months.

To work in the U.S. temporarily, foreign citizens must obtain an appropriate employment visa, based on their planned employment purpose. Nonimmigrants with a visitor B-2 or business B-1 visa status or under the visa waiver program are not authorized to work in the U.S.

Each employment visa type has its own specific eligibility and filing requirements. Most visas require an employer to file a petition with USCIS and get approval before the foreign employee can apply for a work visa. Before filing a petition with USCIS, for most non-immigrant employment visa a petitioner-employer must obtain a certification from the Department of Labor.
Some nonimmigrant visas (for example, F-1 OPT, H-1B, L-1 and O-1) may lead to permanent residence and eventually U.S. citizenship.

Majority of temporary employment visas are in the H status category:

H-1B – for workers in “specialty occupations”, i.e., jobs requiring theoretical and practical application of highly specialized body of knowledge such as accountants, computer programmers, graphic designers, pharmacists, teachers, etc. The initial visa is issued for 3 years and may be extended for another 3 years for a maximum of 6 years from the date of admission.

H-1C – for registered nurses working in hospitals in areas with a shortage of nurses for a maximum of 3 years stay in the U.S (a professional nurse may also qualify under H-1B status);

H-2A – for temporary agricultural workers for a maximum of 3 years stay in the U.S.;

H-2B – for temporary workers in other temporary, non-agricultural occupations;

H-3 – for trainees coming to the U.S. for up to 2 years to receive training not available in the non-immigrant’s own county, except for graduate medical training and training programs;

H-4 for spouses and children of non-immigrants with H-1, H-2, or H-3 status, however they may not accept employment in the U.S. unless they are specifically included in the petition.

There are several other types of temporary employment visas, such as:

L visas – for intracompany transferees – allow a U.S. employer to transfer an executive or manager (L-1A), or a professional employee with specialized knowledge (L-1B), from one of its affiliated foreign offices to one of its offices in the United States, including for purposes of establishing an office in the U.S. The initial L-1A visa may be issued for up to 3 years and can be extended every two years for the maximum duration of 7 years. The initial L-1B visa may be issued for up to 3 years and may be extended for another two years, but the maximum duration may not exceed 5 years, unless changed to L1-A to increase the total combined duration to 7 years. Certification from the Department of Labor is not required for this visa.

O visas – for persons of extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. It also includes individuals who accompany an O-1 artist or athlete to assist in a specific event or performance. The initial visa is issued for up to 3-years but may be extended every year with no maximum duration.

P visas – for professional or internationally recognized athletes (P-1A), members of internationally recognized entertainment groups (P-1B), performers, artists, or artists or entertainers under a program that is culturally unique (P-1C).

E visas – for treaty traders (E-1, persons who want to come to the U.S. to carry on substantial trade between the U.S. and their country), treaty investors (E-2, persons who what to come to the U.S. to develop and direct the operations of an enterprise in which they have invested or are in the process of investing a substantial capital). E visas are for citizens of a treaty country (a country with which the U.S. maintains a treaty of commerce and navigation, or with which the U.S. maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation).

A fiancé(e) K-1 visa is available for a foreign citizen seeking to come to the U.S. to marry a U.S. citizen within 90 days of the arrival and then file for permanent residence through adjustment of status. Unmarried children under the age of 21 of the fiancé(e) can receive K-2 visas.

To qualify for a K visa, the fiancé(e) and U.S. citizen must have previously met in person within 2 years of filing the petition (this requirement may be waived in some circumstances), that each partner is legally able to marry, and that there is a bona fide intention to marry within 90 days of fiancé(e)’s entry.

Obtaining the K1 visa is a multi-step process. First, the U.S. citizen must file a petition for his or her foreign fiancé(e) (also known as the “beneficiary”) with the appropriate filing fees and any required documentation with the USCIS. Once the petition has been approved, the USCIS will forward it to the National Visa Center (NVC) and once it has been processed, the NVC will send it to the U.S. Embassy or Consulate where the fiancé(e) lives. The fiancé(e) will then be able to apply for a K-1 visa and schedule an interview with a consular officer.

If the visa is issued, the fiancé(e) may enter the U.S. and marry the U.S. citizen within 90 days. After admission to the U.S., the fiancé(e) may immediately apply for permission to work. The fiancé(e) visa automatically expires after 90 days, and it cannot be extended or changed to another non-immigrant status.

Fiancé(e) visa applications are usually denied because of insufficient evidence of bona fide relationship or misrepresentations during the application process (e.g., falsifying affidavits from friends and family, failure to disclose medical and criminal history, falsifying income, etc.).

Failure to maintain current visa status will result in visa being void. To maintain status, visa holders must only engage in activities consistent with their status and must not engage in unauthorized employment. For example, tourist visa holders are not authorized to work in the U.S. Generally, a nonimmigrant with an employment visa who changes employers must file a new petition and cannot work for the new employer until the petition is approved, with some exceptions. Unauthorized work can result in deportation. Nonimmigrants also must file all extension for stay or change of stay applications before the expiration of the authorized stay.

The visa validity is the length of time a person is permitted to travel to a port-of-entry in the United States. In other words, the person must enter the U.S. before the expiration date on the visa. Validity of visa depends on the nature of the visa. Also, visas can be issued for a single entry to multiple entries. All entries must occur during the visa validity period.

Duration of stay is determined by a Customs Border Patrol official at a port of entry as recorded on the I-94 Arrival/Departure form. The I-94 will either contain a specific date by which an immigrant must leave or will be marked as D/S (Duration of Stay). D/S means that the person can stay as long as the person continues with the intended purpose of the non-immigrant visa. If the person stays beyond the period of stay, the visa will be void and the person will start accruing unlawful presence. For example, students are admitted for duration of stay, which allows them to be in student status while they are completing studies in the U.S., whether it takes them 2 years or 4 years, or longer.

Non-immigrants can extend their stay while in the U.S. as long as they do so before the authorized stay expires, unless they can demonstrate that

(1) the delay was due to extraordinary circumstances beyond their control;
(2) the length of the delay was proportionate to the circumstances;
(3) the non-immigrant status has not been otherwise violated;
(4) the person remains a bona fide immigrant;
(5) the person is not in removal proceedings.

While the application to extend status is pending, they will in a lawful status as long as the application was timely filed and is nonfrivolous.

If the application is approved, the approval will be effective as of the date of their prior nonimmigrant admission period.

If the application is denied and the authorized stay expired, the visa will be void and the person will be out of status and will start accruing unlawful presence from the time of the denial.

Non-immigrants can change their nonimmigrant status from one nonimmigrant category to another while in the U.S. if their visit purpose has changed, as long as they do so before the authorized stay expires, unless they can demonstrate that

(1) the delay was due to extraordinary circumstances beyond their control;
(2) the length of the delay was proportionate to the circumstances;
(3) the non-immigrant status has not been otherwise violated;
(4) the person remains a bona fide immigrant;
(5) the person is not in removal proceedings.

While the application to change status is pending, they will in a lawful status as long as the application was timely filed and is nonfrivolous.

If the application is approved, the change of status takes effect on the date of approval and untimely period is excused.

If the application is denied and the authorized stay expired, the visa will be void and the person will be out of status and will start accruing unlawful presence from the time of the denial.

After the expiration of the authorized stay, some nonimmigrants are given a grace period to depart the U.S. The 10-day grace period is considered a period of authorized stay. During the 10-day grace period, the person may not work but may change status or extend status. The grace period ends upon departure. The following visas have a grace period to leave upon expiration of their authorized stay:

E-1, E-2, E-3, H-1B, L-1 P, O, TN visas – 10 days
F1 student – 60 days after completion of study
H1-B – no grace period to depart

Termination of employment terminates status for employment-based nonimmigrants even if the termination is during the period of the authorized stay. In such cases, the nonimmigrants in E-1, E-2, H-1B, H-1B1, L-1, O-1, TN categories are given a 60-day grace period to depart after termination of employment, or by the end of their original authorized stay in the U.S., whichever is shorter.

During the grace period, they can apply to change employer, extend status, change status, adjust status, or work authorization for compelling circumstances. However, during the 60-day grace period, they may not work. Also, they may not combine the 60-day grace period with the 10-day period.

A visa overstay occurs when a non-immigrant remains in the U.S. past the expiration of the authorized stay as indicated on the I-94 Arrival/Departure Record. The overstay may result in the accrual of unlawful presence, which may result in inadmissibility depending on the number of days of overstay.

The overstay of more than 180 days, but less than 1 year, and voluntary departure before removal proceedings began will result in a 3-year bar from readmission to the U.S. from the date of the departure.

The overstay of more than 1 year will result in a 10-year bar to readmission, whether a nonimmigrant departs before or after deportation proceedings.

Waivers of inadmissibility are available under certain circumstances. See Waiver of Inadmissibility.

Some nonimmigrant visas may lead to permanent residence and eventually U.S. citizenship. For example, F-1 OPT, H-1B, L-1 and O-1.