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Immigration Resources
Non-Immigrant Visas
Immigrant Visas
Naturalization
O & P Visa Requirements
Political Asylum
There are two categories of visas, the non-immigrant visa and the immigrant visa:
The Non-Immigrant (TEMPORARY) Visa
Nonimmigrant (temporary) visas are generally available to qualified individuals who wish to travel to and remain in the United States for a finite period of time for a specific purpose, such as to study, undertake employment or for business visits.
Most applicants for temporary admission to the U.S., regardless of age, must have his or her own visa, unless they qualify to enter the U.S. for a short trip for pleasure or business under the Visa Waiver Program. Spouses and unmarried children under the age of 21 may apply to obtain a visa to accompany the principal applicant, but usually employment authorization is not granted to dependent visa holders.
WHO MAY NOT BE ELIGIBLE FOR A NON-IMMIGRANT VISA?
U.S. immigration law forbids the issuance of a visa and admission to the U.S. to any person who is ineligible for a visa and admission under U.S. law. Grounds of inadmissibility are listed in the Immigration and Nationality Act, including persons convicted of a crime involving moral turpitude (with certain exceptions), controlled substance violators, and persons who by fraud or willfully misrepresenting a material fact, seek to procure (or have sought to procure or have procured) a visa, admission to the U.S., other documentation, or benefit provided under the Immigration Act. All applicants for a nonimmigrant visa who are determined to be ineligible by a U.S. consular officer may apply for a waiver of inadmissibility if a waiver is recommended by a consular officer or by the Secretary of State.
All applicants for non-immigrant visas, with the exception of certain “H” and “L” visas, are presumed by law to intend to reside permanently as immigrants in the United States. The applicant must therefore prove that he or she only intends to remain in the U.S. for a temporary period. In addition, most non-immigrant visa categories require the applicants to demonstrate that they will at all times maintain a foreign residence outside of the U.S. which they do not intend to abandon.
Following is a brief description of the most common nonimmigrant visas follows.
Please note, this list is not exhaustive, nor is it meant to include all activities permitted to a visa holder.
Visa Waiver Program (WB, WT)
Citizens of 29 countries may apply to enter the United States without a visa, under the Visa Waiver Program. The countries included in the program are: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, Uruguay and the United Kingdom.
Qualified citizens of these countries must travel on a participating carrier with an un-expired passport and a return ticket. They must be coming to the U.S. as tourists (WT), on business (WB), or in transit through the U.S. These individuals may be admitted for a stay of 90 days so long as they are not inadmissible under U.S. immigration laws. Visa free travel for business does not generally permit productive employment or self-employment while in the U.S.
Visitor for Business (B-1):
Generally:
A B-1 business visitor may be admitted for the purpose of engaging in business, but not for the purpose of being employed.
Definition of “Business”
The term “business” as used in INA 101(a)(15)(B), refers to “conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire”.
Persons coming to the U.S. on business, such as to negotiate contracts, consult with business associates, or attend conventions, conferences or seminars, and other legitimate activities of a commercial or professional nature may apply for a B-1 visitor for business visa. B-1 visa holders may not receive a salary or other remuneration from a U.S. source other than expenses or reimbursement of expenses incurred incidental to the visit. With few exceptions, a B-1 visa holder may not engage in ordinary local employment or labor for hire.
Visitor for Pleasure (B-2):
This visa is generally for persons coming to the U.S. for tourism, social visits to family and friends, or medical treatment. Usually a visitor for pleasure is admitted for a period of six months and may never engage in employment in the U.S.
Transit without Visa/Crew members (C-1/D):
The C visa is available to a person in immediate and continuous transit through the United States. Periods of admission are limited to 29 days or less. D visa holders are primarily crew members, either on a vessel or aircraft. Spouses and unmarried children under the age of 21 of C-1/D visa holders may travel as tourists.
Treaty Traders/Treaty Investors (E-1/E-2):
Citizens of certain countries having an appropriate treaty of trade, commerce and navigation between the U.S. and the foreign country may apply for treaty visas.
Treaty trader (E-1) visas are available to qualified persons solely to carry on a substantial trade in goods, services or technology principally between their home country and the U.S.
Treaty investor (E-2) visas are available to qualified persons solely to develop and direct the operations of a business in which they have invested or are actively in the process of investing a substantial amount of capital.
Executives and high level manager/supervisors of a treaty trader or treaty investor as well as other employees with special qualifications essential to the efficient operation of the U.S. enterprise are also admissible under E-1 or E-2 visas, if they are the same nationality as the trader or investor. The spouses and unmarried children under the age of 21 of traders, investors and their treaty employees are also admissible as E-1's and E-2's. Unlike treaty traders, investors and employees, their spouses and unmarried children do not need to be nationals of the treaty country and they are authorized to accept employment in the U.S.
Students (F-1/M-1):
A person wishing to enter the U.S. temporarily to attend a full course of study at an INS approved college, university, or other academic institution requires a student (F-1) visa. F-1 visas are not available for attendance at public elementary schools and publicly-funded adult education programs. F-1 visas will only be issued for attending a public secondary school for up to twelve months, and only if the foreign student contracts to reimburse the school authority for the cost of providing the education.
Those wishing to attend an INS approved vocational or other recognized nonacademic institution (other than a language training program) may apply for a vocational student (M-1) visa.
Before applying for either an F-1 or M-1 visa, a prospective student must obtain from the school a Form I-20A-B (Certificate of Eligibility for Nonimmigrant (F-1) Student Status or Certificate of Eligibility for Nonimmigrant (M-1) Student Status, respectively). Spouses and unmarried children under the age of 21 may apply to accompany the student in F-2/M-2 status but may not accept employment.
Temporary Workers and Trainees (H Visas):
There are several H visa categories, all of which require sponsorship by a U.S. employer or agent.
Nurses (H-1A)
Certain registered nurses with appropriate qualifications may apply for an H-1A visa based upon an offer of employment from a government-qualified facility or institution.
Professionals: (H-1B)
This visa is available to an individual who is offered a temporary position in the U.S. in a “specialty occupation” (a position that requires a university degree as a normal entry-level requirement and the person must possess either the relevant degree or the vocational equivalent of the degree). Fashion models who can establish that they are of distinguished merit and ability, as well as qualified individuals who are coming to the U.S. to perform services of an exceptional nature relating to a cooperative research and development project for a government-sponsored project, may also qualify for this visa classification.
Nurses in Shortage Areas (H-1C)
By law enacted 12 November 1999, Congress authorized visas for nurses who will work in geographic areas designated as “Health Professional Shortage Areas” by the Department of Health and Human Services.
Temporary Workers (H-2)
An individual who is coming temporarily to the U.S. to perform temporary services may qualify for an H-2 visa, if the sponsoring employer can prove that there is a shortage of U.S. workers to fill the position and prove that the required services are temporary or seasonal in nature.
Trainees (H-3)
An individual who wishes to enter the U.S. at the invitation of an organization or individual, for the purpose of receiving training in any field, other than physicians in the medical field, may be eligible for an H-3 visa. The sponsoring employer must confirm the type of training to be given, that the type of training offered is not available in the visa holder’s home country, that the visa holder will not engage in productive employment unless such employment is incidental and necessary to the training, and that the training will benefit the visa holder in pursuing a career outside the U.S. Spouses and unmarried children under the age of 21 of H visa holders may apply to accompany the principal visa holder in H-4 status but are not authorized to accept employment.
Information Media (I):
Representatives of foreign press, radio, film or other information media may apply for an "I" visa to enter the U.S. solely to engage in their profession on behalf of their foreign information media employer.
Exchange Visitor (J-1):
J-1 visas are available to persons who wish to undertake employment, training or research in the U.S. based on sponsorship by an educational or other non-profit institution. This category also includes persons wishing to work as au pairs in the United States based on sponsorship by approved au pair programs. Spouses and unmarried children under the age of 21 may apply for a J-2 visa to accompany the J-1 visa holder.
In some cases a J-1/J-2 visa holder may be subject to a two year foreign residence requirement before they may apply for permanent resident status and certain nonimmigrant visa categories. Waivers of the two year foreign residence requirement are sometimes available.
Fiancé/Fiancée (K-1); and certain spouses of U.S. citizens (K-3)
A K-1 visa is available for a qualified fiancé(e) to enter the United States solely for the purpose of marrying a U.S. citizen within 90 days after entry. Unmarried children under the age of 21 may apply for a K-2 visa to accompany the K-1 visa holder. Persons who desire to enter the U.S. in order to marry a US citizen and then return abroad may qualify for entry as a visitor for pleasure (B-2/WT).
Spouses of U.S. citizens who are already married and are waiting outside of the U.S. for the approval of their immigrant visa petitions previously filed in the U.S. may apply for a K-3 visa. If the marriage occurs outside the U.S. the K visa must be issued by the consulate where the marriage occurred. If the marriage occurred in the U.S., then the visa application must be filed in the country where the applicant resides. The K-3 visa will allow the spouse to enter the U.S. and await the approval of the petition. Unmarried children under the age of 21 may be issued K-4 visas to accompany or follow to join the K-3 spouse. A K-3 visa petition is not required to be filed on the child's behalf.
Intracompany Transferee (L):
Individuals who have been employed by a company, organization or firm as a manager, executive, or in a specialized knowledge capacity, may qualify for L-1 status if, during the 3 years preceding entry to the U.S., they have worked for the employer outside the U.S. for at least one continuous year and now wish to transfer to an executive, managerial or specialized knowledge position in the U.S. to work temporarily with a parent, subsidiary, branch or affiliate of their foreign employer. Spouses and unmarried children under the age of 21 may apply to accompany the principal visa holder in L-2 status and are authorized to accept employment.
Extraordinary Ability/Extraordinary Achievement (O):
O-1 visas are available to qualified persons who can demonstrate either extraordinary ability in the sciences, arts, education, business and athletics, or a record of extraordinary achievement in motion picture and television productions. O-2 visas are available to qualified individuals in order to accompany and assist the O-1 visa holder. The O-2 visa applicant must demonstrate that he or she is an integral part of the performance and has critical skills and experience, not of a general nature, which cannot be performed by other individuals. The spouses and unmarried children under the age of 21 of both O-1 and O-2 visa holders may apply for O-3 visas to accompany the O-1 and O-2 visa holder but employment is not authorized.
Athletes, Artists and Entertainers (P):
Internationally recognized athletes, athletic teams, and entertainment groups may apply for P-1 visas. P-2 visas are reserved for entertainers, both individuals and groups, who are involved in a reciprocal exchange program between the U.S. and one or more foreign countries. P-3 visas are available to qualified persons who seek to enter the U.S. to perform in programs that are culturally unique. P-4 visas are available for the spouses and unmarried children under the age of 21 of the holders of any of the P visas. Employment is not authorized for P-4 visa holders.
Religious Workers (R):
Qualified members of a religious denomination may apply for an R-1 visa to work in the U.S. with a non-profit religious organization as a minister of religion, religious professional, or other religious worker. Spouses and unmarried children under the age of 21 may apply to accompany the principal R visa holder in R-2 status but may not accept employment.
Spouses and Minor Children of Lawful Permanent Residents Awaiting Immigrant Visas (V)
V visas are available for qualified spouses and unmarried children under the age of 21 of lawful permanent resident aliens who are the beneficiaries of immigrant visa petitions filed on or before December 21, 2000 and have been waiting three years or more from the date the Immigration and Naturalization Service received the immigrant visa petition. V visa holders may live and work in the U.S. while waiting to qualify for permanent residence.
The Immigrant Visa:
Immigrant (permanent) visas are available to qualified individuals wishing to live permanently or indefinitely in the U.S. There are two categories of immigrant visas, unlimited and limited, and limited immigrant visas are further divided into three categories: family-based, employment-based, and diversity immigrants. All immigrant categories, except for “immediate relatives” and “special immigrants” (see below), are numerically limited and subject to annual per-country quotas, often resulting in long waiting periods between the filing of an immigrant visa petition and issuance of an immigrant visa.
All applicants for an immigrant visa must demonstrate to the satisfaction of a U.S. consular officer that they are not ineligible for a visa under any of the categories of inadmissible persons listed in the Immigration and Nationality Act. If determined to be ineligible for an immigrant visa, U.S. law permits a waiver of inadmissibility in many, but not all, circumstances.
Employment-Based Permanent Status
EB1:
First Preference |
- Persons of extraordinary ability
- Outstanding professors and researchers
- Multinational executives and managers
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EB2:
Second Preference |
- Members of Professions holding advanced degree
- Aliens of exceptional ability
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EB3: Third Preference |
- Skilled workers, professionals and other workers
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EB4:
Fourth Preference |
- Religious workers
- Commuters from border
- Retired G-4 (employee of international organization)
- Returning residents
- Minister of religion
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EB5: Fifth Preference |
- Employment creation investors
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Family-Based Permanent Status
First Preference |
Unmarried sons or daughters (over age 21) of USC |
Second Preference |
Spouses and unmarried children (under 21) of LPR;
Unmarried sons and daughters (over 21) of LPR |
Third Preference |
Married sons and daughters of USC |
Fourth Preference |
Brothers and sisters of USC |
Naturalization And Citizenship
There are two ways for a person to become a U.S. citizen. One is by operation of law, generally requiring no action by the individual entitled to citizenship. Examples are birth in the United States or birth abroad to U.S. citizens or nationals.
The other way is by naturalization once statutory eligibility requirements have been satisfied.
GENERAL REQUIREMENTS FOR NATURALIZATION
- The Applicant for Naturalization Must be Lawfully Admitted for Permanent Residence (INA $318, 8 USC $1429)
“Lawfully admitted for permanent residence” means “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such as not having changed.” Thus, it is not enough to have been accorded permanent residence status. One must have been lawfully entitled to it.
- The Applicant Must be 18 Years of Age at the time of Filing of Application for Naturalization (INA $334(b), 8 USC $1445(b)
There are two exceptions. Persons who served in the military honorably during designated periods may naturalize regardless of age. Also, minors with at least one citizen parent may be naturalized on the application of the parent.
- The Applicant Must Have Satisfied Certain Residency Requirements. (see below)
- The Applicant must be A person of Good Moral Character (INA $$316(a)(3), 101(f); 8 USC $$1427(a)(3), 1101(f)
- Literacy and Knowledge of History and Government Requirements. (see below)
By law, a person may file a naturalization application three months early. Thus a person can file an application for naturalization four years and nine months after the grant of permanent residency. However, the five-year requirement must be fulfilled before the grant of citizenship.
RESIDENCE:
Residence in the Untied States must be (a) subsequent to lawful admission for permanent residence, and (b) for a period of five years immediately preceding the filing of the application for naturalization.
Residency in the United States must be maintained from the time of filing of the application until the time of admission to citizenship.
There is no longer a requirement that a person intend to reside in the United States after acquiring citizenship
What is “Residence”?
“Residence” is defined as the “place of general abode which means one’s principal, actual dwelling place in fact, without regard to intent.”
A person must reside within the state or within the INS district where the application will be filed for at least three months immediately preceding the filing of the application.
If an application is filed early, the person must reside in the state or district for the three months immediately preceding the examination (interview). If the person maintains residences in more than one state, the regulations provide that the applicant is considered a resident of the state from which the annual federal income tax returns have been and are being filed.
Question: How long must a person be physically present in the United States?
It should be noted that residence is not the equivalent of physical presence. Absences from the United States may or may not keep an individual from naturalizing.
A person must be physically present in the United States for at least half of the required residence time preceding the date of filing the application (30 months out of the five years, or 18 months out of three years if based upon a marriage to a U.S. citizen).
THE LITERACY TEST:
Applicants are tested on their ability to read, write, and speak words in ordinary usage in the English language. The standard is elementary reading, writing, and speaking ability.
- Exceptions to the Literacy Requirements
Persons physically unable to comply due to permanent disability are exempt from the literacy requirement. The disability must be such that the applicant is unable to learn to speak, read, or write (blindness, deafness, etc), and not merely because of advanced age or limited intelligence.
Applicants must submit an attestation from a licensed medical doctor, osteopath, or licensed clinical psychologist with their N-400 applications to support their level of disability. Applicants are not required to use a designated civil surgeon and the individual must be experienced in the area of the applicant’s disability.
- Knowledge of History and Government of the United States (INA #312(2), 8USC $1423(2)
Applicants are required to pass an oral history and government examination, even if exempt from the requirement of speaking English. The optional standardized testing program was terminated as of August 30th 1998. Applicants passing the test before that date may still be permitted to rely on their passing score in the discretion of the INS examiner.
In accordance with this congressional directive, the INS has created a list of only 25 questions on U.S. history and government from which applicants over age 65 with 20 years’ permanent residence are to be examined. Applicants must correctly answer six of 10 questions from the list.
Exceptions
(1) An alien who is physically unable to comply with this requirement.
(2) An alien who is over 65 and has been a permanent resident for over 20 years can receive “special consideration” concerning the civics requirement.
Second Opportunity
An applicant is to be given a second opportunity to pass the test(s) within 90 days after the first examination. The applicant may request an extension of that date for good cause; however, by granting such a request, the Service relieves itself of the mandate to render a decision on the application within 120 days of the initial interview.
- Application Procedure
Before 1990, the courts had sole authority to naturalize. An applicant filed a petition with the INS, which then made a recommendation to the relevant court. The INS had no position to deny naturalization, and the court had de novo review.
The Immigration Act of 1990 conferred the sole authority to naturalize on the Attorney General.
Now an applicant files a single application with the INS. The INS conducts the examination and administers the oath of allegiance.
The following steps constitute the procedure:
- Filing the Application
- Interview
At the naturalization interview, the INS examiner reviews the application, makes any necessary changes or correction, and evaluates the applicant’s eligibility for naturalization, including whether he or she falls under any of the classes that are ineligible for naturalization.
The examiner also tests the applicant’s English knowledge as well as his or her knowledge of U.S. government history.
For male applicants, the INS may request evidence of Selective Service registration.
- Court Jurisdiction
Under the 1991 changes, INS has authority to naturalize applicants. However, courts that wish to may have exclusive jurisdiction to administer the oath of allegiance for 45 days after the application is approved by the INS. The court must request such jurisdiction. If the court does not administer the oath in the 45-day period, the applicant may choose between INS and court administration of the oath.
- Administrative and Judicial Review
The examining officer must make a decision within120 days of the interview (although many INS officers request that the applicant sign a waiver of this requirement). If the naturalization examiner denies an application, the applicant may appeal to another INS officer in the same office. The officer will have 180 days from the date of filing the appeal to make a decision. If the application is again denied, or if no decision is made within180 days, the applicant may seek de novo review in federal district court. An applicant may also seek review in federal court if the INS does not make a decision on the application within 120 days after the interview.
- Failure to Appear at the Final Hearing/Reopening of Proceedings
The INS may, on its own motion, reopen and deny the naturalization applications of those who fail to appear for the final hearing (i.e., the oath ceremony). The INS may also reopen any case where it has evidence that naturalization was procured by fraud, misrepresentation, concealment, or mistake. The reopening must take place within two years of the grant of citizenship.
O & P Visa Requirements
O visa
The O visa has two categories: The O-1A visa is for people who have achieved national or international acclaim through extraordinary ability in the sciences, arts, education, business, or athletics. The O-1B is for people in the motion picture or TV production business who have a record of extraordinary achievement.
The O visa category has no foreign residence requirement, but the person must intend to remind in the US temporarily.
Extraordinary ability may be established by either a major international award or by at least three of the following: (1) a national or international award; (2) membership in an organization in the field for which classification is sought requiring outstanding achievement; (3) published material about the person’s work in professional or major trade publications; (4) having been called on to judge the work of others in the particular field; (5) original work of major significance in the field; (6) authorship and publication of scholarly work in the field; (7) evidence that the person has been in a critical or essential employment capacity with an organization of distinguished reputation; or (8) evidence that the person has or will command a high salary in the field.
The O-2 is for persons who will accompany and assist the O-1 artist or athlete in the furtherance of his performance.
The O-3 is for the spouse and children of the O-1 or O-2 visa holder.
P visa
This visa is for athletes and entertainers.
- The P-1A is for athletes who are internationally recognized in their own right or a part of a group that has achieved recognition. The P-1B is for a person who performs with or who is a part of an entertainment group that has been internationally recognized for a sustained period as being outstanding entertainers.
- The P-2 visa is for a person performing as part of a group, individually, or as an integral part of the performance, and is entering the US temporarily. The P-3 visa holder is entering the US as part of a “culturally unique program” (this includes coaching); the program may be commercial or noncommercial and need not be sponsored by an educational, cultural, or governmental agency.
- The P-4 visa is for the spouse and children of the P visa holders.
Political Asylum
Political Asylum is for people who are afraid to go back their homeland (country of origin) for fear that they had been or would be persecuted (victimized, kidnapped, murdered, imprisoned without a fair trial, tortured, beaten severely, threatened) by their government, the army, police, guerrillas, death squads, or opposition party. In order words, you fear going back to your country because your freedom was and would be taken away the moment you get there.
However, obtaining political asylum status is not an easy task. You have to prove to the Immigration Judge that your life had been or would be in grave danger if you were to return back to your country. You want to show that you have good reasons and may be even proof to show that any person in your position would also fear for his or her life.
The reason for persecution can be based on the following reasons:
- your Political opinion- due to things you did or do, groups you belonged or belongs to, or your family’s background; you fall under these group of people who demonstrated as students, were active in labor unions, were members of any political parties or government;
- your Religion- if you were or are not allowed to practice your religion or you are persecuted because of your religious beliefs;
- your Social group-your belong to a group who share about certain characteristics, such as family, race, gender, community, family, nationality, age, etc.
- your Race- skin color, origin, or background;
- your Nationality- country of citizenship, origin or ethnic group;
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