DC Immigration Lawyers Skilled with Non-Immigrant Visas

A variety of non-immigrant visas are available to aliens who want to temporarily enter the U.S. for a specified reason.

The primary distinction between a non-immigrant visa and an immigrant visa is the length of time for which the visas are issued. Your Virginia immigration lawyer can explain that non-immigrant visas are temporary and do not lead to permanent residency, although the H-1B and L-1 visas do recognize the doctrine of dual intent. Immigrant visas lead to permanent residency and are mainly obtained through an eligible family member, future employer or the diversity lottery.

Upon entry into the U.S., aliens receive an I-94 Arrival/Departure Card. This all-important card shows that the alien legally entered the U.S. and was admitted into the U.S. at an authorized port of entry.

On most I-94 cards, a specific date is written on the front, indicating the date by which the alien must depart. Even though a specific visa may be valid for as long as ten (10) years, the I-94 card will usually only be valid for up to six (6) months. The I-94 card, and not the visa itself, controls when the alien must depart the U.S.

Remaining in the U.S. beyond the period authorized by the Attorney General can have dire consequences for an alien who either departs the U.S. and then wishes to return in the future or for an alien who wants to change or adjust his/her status while still in the U.S. Because of this, be sure to consult with a skilled Virginia immigration lawyer to make sure you understand the law.

Aliens arriving in the U.S. on certain visas will not receive a specific date by which to depart the U.S., rather the I-94 card will indicate D/S, or duration of stay. The alien with D/S on his I-94 card can stay in the U.S. as long as he/she maintains valid status.

Students on an F-1 visa remain in D/S status as long as they are enrolled in school at their approved institutions.

The list of non-immigrant visas available to aliens can be found in INA §101(a)(15) or in consultation with your Virginia immigration lawyer and include:

1. Ambassador, public minister, or career diplomatic or consular officer;
2. Visitorforbusinessorpleasure;
3. Individual in immediate and continuous transit;
4. Alien crewman;
5. Treaty investor or trader;
6. Academicstudent;
7. Designated principal representative of a foreign government;
8. Temporaryworker;
9. Representative of the foreign press, radio, film;
10. Participant in an approved exchange program;
11. FianceofaU.S. citizen;
12. Intracompanytransferee;
13. Vocational student;
14. Parent or child of an alien with special immigrant status;
15. Alien with extraordinary ability in the sciences, arts, education, business, or athletics;
16. Artist or entertainer;
17. Participant in an approved international cultural exchange program;
18. Religiousworker;
19. Criminal informant;
20. Victim or informant of trafficking;
21. Victim and informant of certain criminal activity; and
22. Certainbeneficiaryofpermanentresidencyapplicationfiledbylawfulpermanentresident.

B- Visitor for Business or Pleasure

Many foreigners seek to enter the U.S. for either business or pleasure. The visa available to these categories of people is the B visa. The B-1 visa permits an alien to enter the U.S. for a business reason while the B-2 visa permits an alien to enter the U.S. for pleasure, usually tourist-related.

Foreigners entering the U.S. on the B-1 visa are doing so for the purpose of engaging in business. This is different from entering the U.S. for the purpose of seeking employment and working in the U.S. The B-1 visa authorizes foreigners to attend events such as conferences, conventions, or meetings in the U.S.

Foreigners entering the U.S. on the B-2 visa are doing so for the purpose of pleasure—including tourism and medical visits. A B-2 non-immigrant may not engage in lawful employment.

To qualify for either a B-1 or B-2 visa, the alien must show that he/she (a) has the financial means to support himself during the authorized stay in the United States; (b)  has strong ties, both economic and familial, to the home country; and (c)  intends to depart the U.S. upon the expiration of the allotted time, as indicated on the I-94 card.

Upon entry into the U.S., the non-immigrant will be given an I-94 card, indicating a specific date by which the alien must depart the U.S. In certain instances, the alien may seek an extension of stay without departing the U.S. However, there are severe consequences for aliens who overstay their authorized allotted time. This is why it is important to consult with an experienced Virginia immigration lawyer.

F- Academic Student

Many foreigners desire to come to the U.S. for the primary purpose of obtaining an education. The F-1 visa is aimed at students attending academic institutions; whereas, the M-1 visa is given to students attending a vocational school.

Academic students present in the U.S. on an F-1 visa must be full-time students at an approved school. Due to recent legislation, F-1 visas are scrutinized more carefully and can be harder to obtain than in the past, so it is vital that you consult with an experienced Virginia immigration lawyer. As long as long as the alien is a full-time student at the approved institution, the F-1 visa should remain valid, enabling the alien to travel outside the U.S. The I-94 Arrival/Departure card stating a specific date by which the alien must depart the U.S., the I-94 cards of F-1 aliens will state “D/S” (Duration of Status). However, if the alien’s course of study has changed from what is stated on the original I-20, a new I-20 must be obtained prior to leaving the U.S.

In order to be eligible for an F-1 visa, an alien must (a) be accepted into an approved academic institution; (b) demonstrate a financial ability to pay for the education; and (c) demonstrate an intent to depart the U.S. after completing the course of studies.

An F-1 alien is only permitted to attend the school that approved the I-20. If the alien student desires to transfer to another academic institution, the alien must receive an I-20 from that new school. In certain instances, an alien may need to leave the U.S. in order to obtain the new F-1 visa based on the change in schools. With recent legislation, an F-1 alien, or a prospective F-1 alien, should always contact the school to ensure that he/she continues to maintain lawful status.

F-1 aliens are only permitted to work specified circumstances, which your DC immigration lawyer can explain. An F-1 non-immigrant may work on-campus for a period not to exceed twenty hours per week while school is in session. An F-1 alien may work full-time during vacations and school breaks. Off-campus employment may be authorized by the USCIS in cases where the alien can demonstrate severe economic hardship.

Aside from on-campus employment, an F-1 alien may be eligible for Optional Practical Training (OPT) for a period of twelve months. OPT must be related to the student’s major field of study in school and can be done after the completion of study for a limited period of time.

Spouses and unmarried children under 21 years of age may accompany an F-1 alien into the U.S. These dependants will receive an F-2 visa. As long as the F-1 principal alien maintains lawful status, the F-2 derivative non-immigrants will be permitted to remain in the U.S. F-2 spouses are not permitted to work or to attend school. On the other hand, F-2 children are permitted to attend primary or secondary schools full-time. In order for the F-2 spouse to attend any school or for the F-2 child to attend post-secondary school, they must obtain their own F-1 visa.

Specialty Occupation Work Permit (H-1B)

H-1B visas are issued to aliens who have attained a bachelor’s degree in a specialty field and have obtained a job offer from a U.S. employer in that specialty occupation. H-1B visas are valid for an initial period of three (3) years and may be renewed for another three (3) years.

You may be eligible for an H-1B visa if (a) you have a bachelor’s degree, or its foreign equivalent, (three years of work experience may sometimes be substituted for one year of college) in a specialty occupation; (b) a prospective U.S. employer will sponsor you for a job within that specialty occupation; and (c) the job requires a bachelor’s degree in that specialty occupation. Consult with your Virginia immigration lawyer to see if you qualify.

The U.S. employer, acting as the sponsor, must attest to four conditions in submitting the Labor Condition Application (LCA) to the Department of Labor. H-1B dependant employers must make additional attestations. The four primary attestations are to:

• Pay the H-1B visa-holder at least the prevailing wage or the employer’s actual wage, whichever is higher, and pay for non-productive time; and offer the H-1B aliens the same benefits offered to U.S. workers;
• Provide working conditions to the H-1B visa-holder which will not adversely affect the working conditions of workers similarly employed;
• Certify that there is no strike or lockout in the occupational classification at the place of employment; and
• Give notice to the union or to workers at the place of employment and give a copy of the LCA to the H-1B worker.

H-1B workers generally may travel abroad and re-enter the U.S. without first obtaining advance parole as long as the alien continues to work for the sponsoring employer and maintains valid H-1B status. Spouses and unmarried children, under the age of twenty-one (21), of the H-1B visa-holder can obtain H-4 visas and travel outside the U.S. H-4 visa-holders are not permitted to engage in employment.

As long as the H-1B alien maintains valid H-1B status, the spouse and unmarried children maintain valid H-4 status.

Beginning Fiscal Year 2004, the number of aliens permitted to annually receive H-1B visas was dramatically reduced to 65,000. Adjudication of H-1B applications can take a few months, and an alien may not begin to work for the sponsoring employer until the initial H-1B petition is approved. For an additional $1,000.00, an employer may request premium processing, which guarantees an answer by the USCIS within fifteen (15) days of receipt of such a request—the answer could be a request for additional information.

With the current laws, an H-1B worker may be eligible to work for the new petitioning employer as soon as the H-1B petition is filed with the USCIS. However, this applies only when the new job is similar in nature to the previous job. Our DC immigration lawyers can advise you on whether you qualify.

Additionally, the law permits an alien to extend his H-1B visa for a seventh year if an LCA for permanent residency has been pending for more than 365 days. Unlike most non-immigrants visas, the H-1B visa recognizes the doctrine of dual intent. That is, an H-1B worker may maintain valid H-1B status while simultaneously applying for permanent residency. In the majority of non-immigrant visa categories, the visa will be revoked upon filing of an application for permanent residency. This is not the case for an H-1B visa.

Finance (K-1)

A United States Citizen may be eligible to sponsor his/her fiancé/e to enter the U.S. in order to get married. Once the marriage has occurred within ninety days of the alien’s arrival into the U.S, the alien fiancé must then either adjust his/her status to permanent residency via a family member or depart from the U.S.

An alien may be eligible for a fiancé visa if (a) he/she is outside the United States; (b) the petitioning fiancé is a United States citizen; (c) both he/she and the fiancé are free to marry; and (d) the alien and petitioning fiancé have seen each other in person at least once over the past two (2) years, with limited exceptions.

Upon approval of the fiancé petition by the appropriate Service Center of the USCIS, the petition gets forwarded to the National Visa Center (NVC). The NVC processes the petition and forwards it to the requested U.S. Consulate overseas. The alien fiancé will be notified by the U.S. Consulate what documents are necessary in order to receive the K-1 visa. The alien will need to receive a police background check and obtain a medical examination by an approved physician. The U.S. petitioner will need to provide evidence of a financial ability to support the alien fiancé while in the U.S. Upon receipt of the K-1 visa, the alien fiancé can enter the U.S. and must marry the petitioning fiancé within ninety (90) days. Any unmarried children under twenty-one (21) years of age of the K-1 beneficiary may enter the U.S. on a K-2 visa.

L- Intracompany transferee

The L visas are for high-level managerial and specialized knowledge overseas employees of multinational companies. These individuals seek to obtain the L visa in order to come and work for the multinational company in the U.S.

To qualify for the L-1 visa (a) the alien must have worked abroad for one continuous year out of the last three years immediately prior to entering the U.S.; (b) the alien’s job must have been in an executive, managerial, or specialized knowledge field; (c) the alien is being transferred temporarily to work in the U.S. in an executive, managerial, or specialized field; and (d) the alien’s employer in the U.S. is either a qualifying, related business entity or the same employer as abroad.

An L-1 visa may be approved for an initial period of up to three years. In certain instances, an initial L-1 visa may only be valid for one year. After the expiration of the initial three-year period, an L-1 visa-holder may request an extension of the visa for an additional period of time.

An alien who was granted an L-1 visa based on specialized knowledge may have an L-1 visa for an overall period of five years. Managers and executives may have their L-1 visas for an overall period of seven years. Spouses and unmarried children, under 21 years of age, of L-1 aliens may obtain the L-2 visa.

Their status as an L-2 visa-holder depends on the L-1 principal alien. If the principal alien’s L-1 visa expires, then the L-2 visas expire as well. Unlike the H-4 dependent of an H-1B worker, a spouse present in the U.S. on an L-2 visa may seek authorized employment. However, children present in the U.S on the L-2 visa are not authorized to engage in employment.

Similar to the H-1B visa, the L-1 visa recognizes the Doctrine of Dual Intent. Therefore, the L-1 alien can maintain his L-1 visa while simultaneously file an application for permanent residency. For more information, please contact one of our DC immigration lawyers for a consultation.

Religious worker

An R-1 visa is available to those aliens who seek to temporarily enter the U.S. for a religious purpose. The following criteria are necessary to qualify under the R-1 visa (a) the alien must be a member of a religious denomination for the two years immediately preceding the filing of the application; (b) the religious denomination must be a bona fide, nonprofit organization; and (c) the alien intends to work in the U.S. for that religious organization either as a minister or in a professional capacity in a religious vocation.

The initial R-1 visa is valid for up to three years. An alien may request an extension of the R-1 visa for an additional period of two years. Because the alien on the R-1 visa enters the U.S. with the specific intent to work in a religious capacity, the R-1 visa-holder is permitted to engage in employment while in the U.S. However, the alien must only work for the religious organization indicated on the alien’s I-94 card. An alien may work for another religious organization after filing the correct petitions with the USCIS.

Spouses and unmarried children, under 21 years of age, may accompany the R-1 alien. These dependants will be given the R-2 visa. Similar to the L-2 and H-4 visas, the R-2 aliens are dependent on the R-1 alien maintaining lawful status in the U.S. While R-2 visa-holders may not engage in lawful employment in the U.S., they may attend school.

In certain instances, the R-1 non-immigrant may qualify for permanent residency as a special immigrant religious worker. To qualify as such, the alien must have been engaged in their religious vocation or ministry for the two-year period immediately preceding the filing of the application. This differs from the R-1 visa as the non-immigrant only needs to be a member of the religious affiliation and does not need to have actually been employed by that affiliation.

V- Certain Beneficiaries of Lawful Permanent Residents

Because it can take many years for a beneficiary of a lawful permanent resident to receive a green card, Congress enacted legislation to alleviate the burden of family separation. The remedy is the V visa.

To be eligible for the V visa, the alien must be (a) the spouse or unmarried children, under 21 years of age, of a U.S. lawful permanent resident and (b) the beneficiary of a family-based second preference I-130 petition filed on or before December 21, 2000. Additionally, the I-130 petition for a relative must be (a) currently pending with the USCIS; or (b) approved but not have a visa number currently available; or (c) approved with a current visa number available but the beneficiary’s application for permanent residency is still pending.

In order to obtain the V visa, the qualifying alien must appear at a U.S. Consulate overseas. Aliens present in the U.S. on a V visa may obtain permission to engage in authorized employment.