A visa is a document issued by the Department of State that allows a person to apply for entry into the United States for a specific time and for a specific purpose. The word "visa" is also sometimes defined as the endorsement stamped on a passport allowing a traveler to be in the United States for a period of time, but as far as immigration law is concened, the visa is a document allowing a person to apply for entry, it is not itself permission to enter. All non-U.S. citizens entering the United States are classified as either immigrants or non-immigrants; that is they intend to remain permanently or they are admitted for a specific period of time for a specific purpose.
When a person arrives at the US at a port of entry, he or she must possess a valid non expired visa and a passport which will remain unexpired for at least six months beyond the date of entry. Normally the visa is gained by applying at the US Consul abroad. While a visa must be valid at the time of application for admission (time of entry), it need not remain unexpired during the length of the stay. Upon entry a person will be given an arrival/departure card or (form I-94) which, in contrast to the visa, must remain unexpired during the lenth of the stay.
Visas are designated by a combination of letters and numbers, corresponding to the section of the Immigration and Nationality Act where the requirements can be found. This article will attempt to set out the basic conditions and rights granted by the following types of non-immigrant visas: B-1, B-2, E-1, E-2, H-13, L-1 and L-2 visas. While it is hoped the article will be informative, immigration law is full of exceptions and qualifications which are beyond the scope of this article. If you are hoping to gain entry into the United States, or hoping to assist a potential employee gain entry, contact a competent immigration attorney, solicitor or rechsanwalt for assistance.
B-1 Visas - Business Temporary
A B-1 visa applicant must: 1. show an un-abanoned residence abroad, 2. be traveling to the US temporarily for a visit of less than six months, and 3. not engage in local employment or full time study. An applicant may apply for the B-1 visa directly from a US consul and their is no petition required. B-1 Visas are used for business visits to the US involving commercial transactions which do not constitute gainful employment in the U.S. That is, the person's salary must accrue outside the U.S. and be paid outside the U.S. Employees are allowed to recieve reimbursement for incidental expenses from a U.S. source. Thus a person who comes to the US to negotiate contracts, attend meetings or participate in business events is an appropriate candidate for a B-1 visa. A person who comes to the US to supervise the daily activities of a business is deemed to be working in the US and is thus not eligible for a B-1 visa.
B-1 visas are usually valid to apply for a visit of six months and extensions, if granted, are usually granted to apply for an additional six month visit.
Visas- Tourist Temporary
A B-2 visa is similar to the B-1 visa but the purpose of the visa is limited to tourism, recreation or the visiting of family or friends. (the B-2 visa may also be appropriate for persons seeking medical treatment or those who are going to participate in a short course of study.) No work is permitted for holders of a B-2 visa, and any employer who employs such persons is violating federal law.
Visa Waiver Program
The visa waiver program is authorized by the Immigration and Control Act of 1996 and allows citizens of designated countries the right to apply for admission to the US without obtaining a B-1 or B-2 visa. The purpose of the program is to promote tourism and it allows persons to apply for entry without a visa if they present a passport from a designated country and meet certain other conditions such as presenting a return ticket to a place outside the United States.
Visa - E-1 and E-2
The E-1 visa is for persons who enter the U.S. to manage or develop substantial trade between the US and the treaty country. The E-1 visa is sometimes called the treaty-trader visa. An E-1 visa does not have a time limit and permission to remain in the U.S. for two years is usually granted and further extensions of two years are granted as long as the conditions are met. There is no requirement to file a petition with the INS
The treaty-trader applicant must be employed by a company of which the majority of shareholders are of a treaty nation. Also the treaty trader herself/himself must be of that same nationality. The company seeking the visa must establish that it is engaged in continuous and substantial trade between the US and the treaty nation. There is no fixed test to determine whether trade is "substantial" so consular officials will look at shipments, contracts, and value of transactions in order to determine the issue. An E- visa applicant must state unequivocally that they will leave the US once the trade related work in the U.S. is completed.
The E-2 visa is similar to the E-1 visa, but while the E-1 encourages trade, the E-2 encourages investment in the United States. Because it can be difficult classifying service type activities as trade, the E-2 is often a better alternative than the E-1 for companies which provide services. However, the E-2 visa applicant must be more than a passive investor in order to qualify for the visa, the investor must actually control or direct the business or enterprise in which he or she is investing. This does not mean %50 or greater ownership, but the person must through some devise be able to control the operation of the business. The investment must also be a substanial one relative to the total value of the enterprise being invested in.
H-1B Specialty Occupation Visa
The H-1B specialty occupation visa program is designed to provide U.S. businesses with educated or skilled workers in occupations in which there may be a shortage within the U.S. The H-1B visa applies to non-immigrants who have been offered temporary employment in a professional position which requires at least a bachelor's degree or higher specific to the employment for which the prospective entrant seeks admission.
The H-1B requires the non-immigrants to have been offered temporary employment in a professional position, submisson and approval of a of a Labor Condition Application (LCA) and submission of a petition in forms I-29 and I-29H.
A specialty occupation is one which requires the application of a body of highly specialized practical and theoretical knowledge normally gained through a bachelor's or higher degree in the specific discipline. The labor condition application (LCA) and petition are designed to register the employer's intent to employ a foreign worker and insure that the positions being filled are those that cannot be filled by US citizens. Among other conditions, employers submitting the LCA must state that there is no strike involving the current workers in the position sough to be filled, and that it has made efforts to hire locally. Regulations designate two types of H-1B employers. Those that are deemed willful violators or H-1B dependant, and all others. The willful violators are those employers that have previously misrepresented information on their LCA and H-1B dependant employers are those that employ H-1B visa applicants at a level above certain threshold percentages. The employers in these categories must meet certain additional requirements before their H-1B applications will be approved. The extended requirements can be avoided however, if the applicant holds a degree which is a master's degere or higher in a field related to the job and who is to be paid $60,000 US or more per year.