Q. What is the difference between a nonimmigrant and an immigrant?
A. A nonimmigrant enters the United States for a temporary period of time and is restricted to the activity consistent with their nonimmigrant visa. A nonimmigrant must demonstrate that their stay in the US is temporary and that they have the requisite intent to depart the United States at the expiration of their authorized stay. An immigrant enters the United States with the intent to remain permanently. Immigrant status is the same thing as “lawful permanent resident status” or “green card status.”
Q. What are the ways to obtain lawful permanent resident status (green card)?
A. There are two basic ways a foreign national may obtain status as a lawful permanent resident (green card): (1) through a qualifying family member or (2) through an offer of employment. Green cards are also available for certain qualifying refugees and for those selected in the diversity visa (lottery) program.
Q. Exactly what is meant by residency through an offer of employment?
An employer may serve as a sponsor for the green card. There are five separate categories in which a foreign national may qualify, including (1) Priority workers; (2) Individuals with advanced college degrees; (3) Individuals considered to be skilled workers; (4) Religious workers; and (5) investors.
Q. What are the various nonimmigrant visas?
A. There is a wide range of nonimmigrant visa categories, each serving a different purpose.
A Diplomatic employees and their households
B Business visitors (B-1) and Visitors for Pleasure (B-2)
C Transit visa
E Treaty Visa (E-1 Treaty Trader) (E-2 Treaty Investor)
G Employees of International Organizations
H Temporary Workers (minimum of a university degree required)
I Representatives of international media
J Exchange visitors
L Intracompany transferees
M Language and vocational students
N NATO employees
O Extraordinary ability aliens
P Athletes, entertainment groups
Q Cultural exchange visitors
R Religious workers
S Criminal informants
Q. I have a visitor’s visa. May I work?
A. This visa classification is designed for foreign nationals desiring to come to the United States temporarily for either pleasure (B-2) or for a legitimate business purpose (B-1). Neither B2 nor B1 classification is work authorized.
Q. What is considered legitimate business activity for B-1 purposes?
A. B-1 entrants may engage in commercial transactions (i.e. consulting with clients; contract negotiations, litigation, etc.) not involving gainful employment. Participation in educational, professional, business, or religious conventions is also permissible B-1 activity. Applicants for B-1 status must demonstrate a clear intent to continue a foreign residence. See other sections of this website for a more detailed description.
Q. Are there nonimmigrant visa categories that permit me to work?
A. Yes. The following nonimmigrant visas are the most commonly used for work:
The E -2 classification is useful for business owners who need to remain in the U.S. for extended periods of time in order to oversee a business enterprise. However, it is important to note that this category is available only if there is a treaty of commerce and navigation or a bilateral investment treaty between the United States and the foreign country. To qualify for treaty status, the foreign national seeking such status must be coming to the United States solely to develop and direct an enterprise in which he or she has invested (or is investing) a substantial amount of capital. This category may be used by a variety of businesses and companies and may be made by one individual or by a large multinational corporation. Unlike other nonimmigrant visa categories, the E-2 investor does not need to show that he or she is coming to the United States for a specific period of time. The investor is allowed to stay in the United States to manage and direct the investment for an indefinite period and may properly stay for many years.
The H-1B visa category is set aside for foreign workers in specialty occupations for which the foreign national employee has the necessary credentials. This generally means that the H-1B employee has attained a minimum of a bachelor’s degree in the specific specialty as a minimum entry requirement into the occupation. Employees in this visa category may be filling permanent positions in the United States, as long as they depart the United States at the end of their authorized periods of stay. H-1B Petitions may be approved for an initial period of three-years and foreign nationals may be admitted to the United States for the full period. Petition extensions may be obtained to an additional three years, for a total period of stay not to exceed six years.
The H-2B category is used by United States companies to employ skilled or unskilled foreign nationals in nonagricultural positions for which the employer has a temporary need and for which qualified U.S. workers are unavailable. Unlike the H-1B category, the employers must seek a “labor certification” from the Department of Labor. The initial period of stay granted to foreign nationals admitted in this category is governed by the period of time that his or her temporary services are needed; must be reasonable in terms of the duties to be performed; and cannot be beyond an initial period of one year.
The L-1A visa classification (also known as intracompany transferee) is designed to assist international companies in bringing foreign employees to the United States. In other words, corporations doing business in the United States may transfer key foreign employees to the United States through this program. In order to qualify for L-1A status the foreign employee must have worked for the overseas company outside of the United States for a continuous period of one year in the preceding three years; the company in the United States and the company abroad must be related in a specific manner; both companies must be actively doing business; the employee to be transferred must have been employed in the overseas company in an executive or managerial position or in a position involving specialized knowledge; the employee must be transferred to fill one of the noted positions; and the employee’s background and experience must qualify him or her for the position The L-1 Petition is generally approved for an initial period of three years, except in the case of a new business, in which case the Petition will be approved for a one-year period. Extensions for L-1 executives and managers can be approved for a period not to exceed seven years.
The O-1 visa category is set aside for foreign nationals with extraordinary ability in the sciences, arts, education, and athletics. Typically, only a person who is one of the small percentage who have risen to the very top of his or her field of endeavor will qualify for this type of visa. The initial period of stay can be approved for the time necessary to complete the event or activity, up to a period of three years, and there is no explicit limitation on the number of extensions.
The TN visa category was created for Citizens of Canada or Mexico seeking temporary entry to engage in business activities at a professional level and in accordance with the North American Free Trade Agreement (NAFTA).TN employees typically possess the minimum of a university degree, or other appropriate credentials demonstrating status as a professional. The types of positions this category includes are research and design; growth, manufacturing, and production; marketing; sales; distribution; and general service. Foreign nationals may be admitted to the United States in this status for the period of time required by the employer, up to a maximum initial stay of one-year. Extensions may be approved in one-year increments, with no outside limit on the total period of time.
Q. I have being reading about a new section of the law that allows certain individuals already in the United States to obtain a green card. How will I know if that section applies to me.
A. In 1994, Congress enacted the original Section 245(i) which authorized
eligible individuals to adjust their status in the US if an immigrant petition or labor certification was filed prior to January 14, 1998. Because many qualified people missed the January 14th deadline, and because others had since fallen out of status, Congress extended the benefits of 245(i) until April 30, 2000. There is a chance that Congress may further extend 245(i) benefits. Check this site for regular reports on the possible extension of benefits.