U.S. CItizenship and Immigration Services
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U.S.C.I.S. Immigration Office Locator (Find Asylum, Fingerprint, Service Centers and Local Immigration Offices)
U.S. Department of State
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Other useful links
Immigration Litigation Bulletin (published by the Office of Immigration Litiation (OIL))
GREEN CARD THROUGH A JOB
Hiring foreign workers for employment in the U.S. normally requires approval from several government agencies. The Immigration and Nationality Act (INA) requires that some aliens seeking to immigrate on the basis of an offer of U.S. employment first receive a labor certification from the U.S. Department of Labor (DOL). Labor certification is a necessary preliminary step for the employer to proceed with a permanent resident petition with the USCIS (former INS) for its foreign employee.
Once the application is certified (approved), the employer must petition the U.S. Citizenship and Immigration Services (USCIS) for a visa. Approval by DOL does not guarantee a visa issuance. The Department of State (DOS) will issue an immigrant visa number to the foreign worker for U.S. entry. Applicants must also establish that they are admissible to the U.S. under the provisions of the INA.
The labor certification ground for inadmissibility, § 212(a)(5)(A) of the INA, requires that the Secretary of Labor make two findings as part of the labor certification:
qualified U.S. workers cannot be found at the time of filing the application and in the area of intended employment who are available, willing, and able to fill the position being offered to the alien; and
employing the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Because the labor certification requirement is famed as a ground for inadmissibility that the alien must overcome in order to be accorded permanent resident status, it is clear that the burden falls on the employer and the alien to establish that the certification can be made.
The DOL has interpreted the ground for inadmissibility to require that the employer offer to pay the alien at least the prevailing wage for similarly employed U.S. workers in the area of intended employment. It has also interpreted the statute to require that the employer undertake a prefiling recruitment campaign to determine the availability of qualified U.S. worker for the position if even one is available. A U.S. worker who meets the employer’s minimum requirements for the job is considered available even if the alien is equally or more qualified; the employer must express a willingness to hire any minimally qualified U.S. worker under the DOL interpretation of the labor certification requirement. U.S. workers include citizens, permanent resident aliens, aliens granted temporary residence under one of the 1986 legalization programs, refugees, and asylees.
Under the DOL interpretation of the labor certification requirement, the job being offered by the employer must be:
located in the United States,
Employers are highly advised to seek help of a professional attorney in labor certification cases.
WORKING IN THE UNITED STATES
In order for you to come to the United States lawfully as a nonimmigrant to work temporarily in the United States your prospective employer must generally file a nonimmigrant petition on your behalf with USCIS.
Visas for business personnel (H, L, E, I, O, P, Q, and R Visas) permit employment in U.S.
There are five categories of H visas:
H-1B: Specialty occupation.
H-1C: Professional Nurses Working in Health Professional Shortage Areas (HPSAs).
H-2A: Temporary agricultural workers.
H-2B: Temporary non-agricultural workers.
H-3: Trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children.
H-4: Accompanying family members (spouse/children).
1. H-1B: Specialty occupation.
An H-1B is an alien coming temporarily to perform services in a specialty occupation.
A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and requires the attainment of a Bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
The petition must be filed by the US employer and must be filed with:
Evidence that a labor condition application has been filed with the US Department of Labor;
Evidence showing that the proposed employment qualifies as a specialty occupation;
Evidence showing that the alien has the required degree by submitting either:
A copy of the person’s US baccalaureate of higher degree as required by the specialty occupation;
A copy of a foreign degree and evidence that it is equivalent to the US degree; or
Evidence of education and experience that is equivalent to the required US degree.
A copy of any required license or other official permission to practice the occupation in the State of intended employment; and
A copy of any written contract between you and the alien or a summary of the terms of the oral agreement under which the alien will be employed.
2. H-1C: Professional Nurses Working in Health Professional Shortage Areas (HPSAs).
The classification applies to:
a person who is coming temporary to perform services as a registered nurse;
meets the requirements of INA 212(m)(1);
will perform services at a facility described in INA 212(m)(6) for which there is an unexpired attestation on file. 8 CFR 214.2(h)(1)(ii)(A).
A registered nurse is defined as a person who is or will be authorized by a State Board of Nursing to engage in registered nurse practice in a state or US territory or possession and who is or will be practicing at a facility which provides health care services. 8 CFR 214.2(h)(3)(i)(A).
Law requires nurse to have:
An unrestricted license in home country or be educated in the US;
A license in the state of intended employment or pass an exam authorized by HHS;
Proof that he is fully qualified and eligible to practice in state of intended employment as RN upon admission.
There is an attestation requirement for the hospital in the HPSA area that is valid for one year from the date of filing.
3. H-2A: Temporary agricultural workers.
H-2 category is divided between temporary workers performing “agricultural labor or services … of a temporary or seasonal nature,” INA §101(a)(15)(H)(ii)(a), and temporary workers performing “other temporary services or labor.” INA §101(a)(15)(H)(ii)(b).
Under the H-2A program there is a 50% rule which requires employers to hire qualified U.S. farmworkers who apply for the job until 50% of the period of the fees or contract has been completed. 55 Fed. Reg. 29,356 (July 19, 1990).
4. H-2B: Temporary non-agricultural workers.
To qualify for H-2B:
Applicant must be coming temporarily to U.S.
To determine whether job is temporary INS does not look to the nature of the duties, but rather, to the nature of the employer’s need. 8 CFR §214.2(h)(6)(ii)(B). Under INS regulations, employer must demonstrate that the request for labor is one time occurrence, a seasonal need, a peakload need or an intermittent need.
Applicant must be performing temporary services/labor.
Employer must demonstrate that no U.S. workers capable of performing such service/labor are available in U.S. Employer must engage in serious recruitment including use of electronic data banks. Memo No. 17-97, Farmer, Admin. for Regional Management (Jan. 6, 1997), reprinted in 74 Interpreter Releases 835-37 (May 19, 1997).
Must get temporary labor certification demonstrating that:
No USC/LPR workers are available for position.
Employment of aliens will not adversely affect wage rate and working conditions of similarly employed workers in the U.S. 8 CFR §§214.2(h)(5)(i), (6)(iv)(A)(1).
Meet guidelines of Dept. of Labor [Field Memo No. 207.71] for H-2Bs:
Is job in employer’s regular business; duties/equipment similar to regular work?
Is time period for visa reasonable?
Are the number of aliens requested reasonable for job?
Does employer frequently request H-2s?
Are there any alternatives?
Not available for doctors.
5. H-3: Trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children.
Definition. Temporary worker invited by an individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The training program must be one “that is not designed primarily to provide productive employment.”
Must have foreign residence to which he must return.
Regulatory criteria for H-3 are: 8 CFR §214.2(h)(7)(ii)(A):
Proposed training not available in alien’s home country;
Beneficiary will not be placed in a position in which citizen and resident workers are regularly employed;
No productive employment unless it is incidental and necessary to the training and pursuing a career outside the U.S.
The training will benefit the beneficiary in pursuing a career outside the U.S.
However, if the program has any of the following flaws it is unacceptable:
Deals in generalities with no fixed schedule, objectives or means of evaluation;
Is incompatible with the nature of the petitioner’s business or enterprise;
Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training;
In a field in which it is unlikely that the knowledge or skill will be used outside the U.S.;
Will result in productive employment beyond that which is incidental and necessary to the training;
Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the U.S.;
Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or
Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.
The training program by regulation [8 CFR §214.2(h)(7)(ii)(B)] should include:
Kind of training to be given.
The proportion of time that will be devoted to productive employment. Productive employment should be minimal because alien should be receiving training and not performing productive work that displaces USCs/LPRs.
Number of classroom instruction hours. This should be as high as possible to show that petition is not really to work but to train.
Number of hours of on-the-job training both supervised and unsupervised. Unsupervised work should be minimal. Supervised work should always be oriented toward training.
The position and duties for which the training will prepare the alien. Must be preparing someone for the type of work that is not available or is new in country where they will work, e.g., IBM develops new software which is unknown in another country but which they will market there. IBM can petition to train people to use that software so that they can use it when the software is sold in their home country.
The reason why the alien cannot obtain the training in the country of origin and why the training must be given here. Must show that this type of program does not exist in alien’s country of origin, that it is unique to the degree that it does exist in the U.S. and that it is not readily available in any other country.
The reason why a training program is a benefit to the petitioning company willing to hire the trainee.
The source of remuneration received by the trainee.
Admission and Extension:
Admitted for length of training program, but in no event longer than 2 years. No extension, COS or readmission granted after the 2 years unless alien resided and physically present out of the U.S. for 6 months. If training is seasonal, intermittent or less than 6 months this rule does not apply.
The approval of a permanent labor certification or the filing of a preference petition by the same employer for the same or a different job is grounds to deny extension of training program.
6. H-4: Accompanying family members (spouse/children).
USCIS allows immediate family members of H visa holders (H-1A, H-1B, H-2A, H-2B, or H-3) to get H-4 visas to lawfully come and stay in the US. These visas are usually issued at the local US consulate office abroad. However, if the person is already in US, he or she can obtain H-4 visa by filing Form I-539 for change of status.
H-4 visa holders are not eligible to get a Social Security Number and cannot be employed, but they can hold a driver's license, open bank accounts, and get an Individual Taxpayer Identification Number for US tax purposes.
Since H-4 visa holders are not issued a social security number, an ITIN (Individual tax identification number) should be obtained before filing for joint tax returns by filing Form W-7.
L-1A. An L-1A is an alien coming temporarily to perform services in a managerial or executive capacity for the same corporation or firm, or for the branch, subsidiary, or affiliate of the employer who employed him abroad for one continuous year within the three-year period (six months within the previous three years if the employer is eligible and has filed for a blanket L-1 approval and meets the requirements for expedited processing), immediately preceding the filing of the petition, in an executive, managerial, or specialized knowledge capacity.
L-1B. An L-1B is an alien coming temporarily to perform services that entail specialized knowledge for the same corporation or firm, or for the branch, subsidiary, or affiliate of the employer who employed him abroad for one continuous year within the three-year period (six months within the previous three years if the employer is eligible and has filed for a blanket L-1 approval and meets the requirements for expedited processing), immediately preceding the filing of the petition, in an executive, managerial, or specialized knowledge capacity.
Specialized knowledge is special knowledge of the employer’s product or its application in international markets or an advanced level of the knowledge of the employer’s processes and procedures.
The E2 Investor Visa allows an individual to enter and work inside of the United States based on an investment he or she will be controlling, while inside the United States. This visa must be renewed every other year, but there is no limit to how many times one can renew. Investment must be “substantial.” An investor must “contribute” to the US economy. (Setting up a small shop alone is not enough.) Investor visas are available only to “treaty nations.” The dollar amount of cash investment normally should exceed $100,000, depending on the type of business (new or existing), although cases have been made for less amounts. This is an approximated amount and applicants should consult an immigration lawyer prior to making any offers for existing business. The dollar amount should only be money spent on the business. Any expenses not directly spent on the actual business itself will not count toward the required amount. For new start ups, the investment must be large enough to start and operate the business. The amount of investment varies on the type of business. The $100,000 dollar amount would not be a substantial investment for a business such as the construction and management of a shopping center or office complex. The investment will not be considered substantial if it is not large enough to capitalize the venture. The USCIS will use an ‘Inverted Sliding Scale’ to determine whether the investment is substantial in proportion to the overall cost of the enterprise. Upon conclusion of the business, investors must return to their countries of origin, or change their status. The holder of an E-2 visa may leave the United States at anytime but not over the time limit of 6 months.
Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E-2 visas in order to accompany the principal alien. Dependents may seek employment in the US by applying for Employment Authorization using Form I-765, Application for Employment Authorization. Children under 21 cannot apply for work, only the spouse of the E2 holder.
The media (I) visa is a nonimmigrant visa for representatives of the foreign media temporarily traveling to the United States, to engage in their profession while having their home office in a foreign country. Some procedures and fees under immigration law, relate to policies of the travelers home country, and in turn, the U.S. follows a similar practice, which we call “reciprocity.” Procedures for providing media visas to foreign media representatives of a particular country, consider whether the visa applicant’s own government grants similar privileges or is reciprocal, to representatives of the media or press from the United States. There are very specific requirements which must be met by applicants to qualify for the media visa, under U.S. immigration law.
Qualifying for a Media (I) Visa
To qualify for the media (I) visa applicants must demonstrate that they are properly qualified to be issued a media visa. Media visas are for “representatives of the foreign media,” including members of the press, radio, film or print industries, whose activities are essential to the foreign media function, such as reporters, film crews, editors and persons in similar occupations, under U.S. immigration laws, traveling to the U.S. to engage in their profession. The applicant must be engaging in qualifying activities for a media organization having its home office in a foreign country. The activity must be essentially informational, and generally associated with the news gathering process, reporting on actual current events, to be eligible for the media visa. The consular officer will determine whether or not an activity qualifies for the media visa. Reporting on sports events are usually appropriate for the media visa. Other examples include, but are not limited to, the following media related kinds of activities:
Primary employees of foreign information media engaged in filming a news event or documentary.
Members of the media engaged in the production or distribution of film will only qualify for a media visa if the material being filmed will be used to disseminate information or news. Additionally, the primary source and distribution of funding must be outside the U.S.
Journalists working under contract- Persons holding a credential issued by a professional journalistic organization, if working under contract on a product to be used abroad by an information or cultural medium to disseminate information or news not primarily intended for commercial entertainment or advertising. Please note that a valid employment contract is required.
Employees of independent production companies when those employees hold a credential issued by a professional journalistic association.
Foreign journalists working for an overseas branch office or subsidiary of a U.S. network, newspaper or other media outlet if the journalist is going to the U.S. to report on U.S. events solely for a foreign audience.
Accredited representatives of tourist bureaus, controlled, operated, or subsidized in whole or in part by a foreign government, who engage primarily in disseminating factual tourist information about that country, and who are not entitled to A-2 visa classification.
Technical industrial information- Employees in the U.S. offices of organizations, which distribute technical industrial information.
The O-1 classification is a type of employment visa under United States immigration law that applies to aliens who have extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and who are coming temporarily to the U.S. to continue work in the area of extraordinary ability.
An O-1 visa is initially granted for up to three years. Subsequently, it can be extended for one year at a time; there is no limit to the number of extensions that may be granted. The term “O-1” refers to 8 U.S.C. § 1101(O)(i) (also known as Section 101(O)(i) of the Immigration and Nationality Act), which provides for the admission of “aliens of extraordinary ability” in the stated fields. Spouses and dependent children of O-1 visa holders do not receive the status, but instead qualify for O-3 visas.
Unlike many other temporary employment visas, the applicant need not demonstrate proof of binding ties to a residence outside the United States which the applicant has no intention of abandoning.
Generally, to qualify for O-1 classification, aliens of extraordinary ability in the sciences, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:
Receipt of a major, internationally recognized award, such as the Nobel Prize; or at least three of the following forms of documentation:
Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;
Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media;
Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
The P classification is a type of temporary employment visa, under United States immigration law, that applies to foreign-based athletes and entertainment groups.
The term “P” visa refers to 8 U.S.C. § 1101(P) (also known as Section 101 of the Immigration and Nationality Act), and the classifications are as follows:
P-1 applies to individual or team athletes, or members of an entertainment group (P-1B) that are internationally recognized. A maximum of 25,000 P visas are issued annually.
P-2 applies to artists or entertainers who will perform under a reciprocal exchange program.
P-3 applies to artists or entertainers who perform under a program that is culturally unique.
P-4 is for the spouse or child of a P-1, P-2, or P-3 alien and who is accompanying, or following to join, the alien.
An athletic team can file petition for a foreign athlete, the team must have achieved international recognition in the sport. An athlete who will come to the US to compete in individual events rather than as a team must show that he or she is internationally recognized. USCIS has defined “international recognition” as a “having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.” The event the athlete is coming to the US to participate in must have a distinguished reputation and must require the participation of athletes and teams of international recognition.
Entertainers must be part of an entertainment group to obtain a P-1 visa. Individual artists cannot usually obtain a P-1 visa – except when joining the rest of their foreign entertainment group already in the US. The group must be internationally recognized as outstanding in their area, and have a sustained period of achievement no less than one year. Additionally, a minimum for 75% of the group’s individual members must have a substantial relationship to the group, generally satisfied by at least one year of membership.
“Internationally recognized” means having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country. The definition is similar to that of O-1B extraordinary ability, but a bit more stringent. The reputation of the group, not the individual achievements of its members nor the acclaim of a particular production, is paramount.
To establish international recognition, a petitioner may rely either on documentation of a major, one-time achievement by the group, such as the nomination for, or receipt of, a significant international award or prize, or at least three of the following:
Has and will perform as leading/starring group in productions/events with distinguished reputations;
International recognition/acclaim for outstanding achievements;
Has and will perform as leading/starring group for organizations with distinguished reputations;
Record of major commercial/critically acclaimed success;
Significant recognition from organizations, critics, governments, other recognized experts;
Commanded/will command high salary/other substantial remuneration relative to others similarly situated.
The Q nonimmigrant visa is for international cultural exchange programs designated by USCIS. You may be eligible for a Q-1 nonimmigrant visa if you are seeking to participate in an international cultural exchange program. The Q nonimmigrant exchange program is for the purpose of providing practical training and employment, and to share the history, culture, and traditions of your home country with the United States.
Only employers who administer cultural exchange programs are allowed to petition for Q nonimmigrants. The purpose of the Q nonimmigrant visa is to facilitate the sharing of international cultures. It is an employment oriented program, but an integral part of your duties must have a cultural element. You must be at least 18 years old and be able to communicate effectively about the cultural attributes of your country.
Your sponsoring organization must file Form I-129, Petition for Nonimmigrant Worker, with the USCIS office specified in the form. In addition, the employer must submit evidence that the employer maintains an established international cultural exchange program. This may be demonstrated by submitting copies of catalogs, brochures or other types of material which illustrate that the cultural component of the program is designed to give an overview of the attitude, customs, history, heritage, philosophy, tradition and/or other cultural attributes of the participant's home country. The employer may also submit evidence which illustrates that the program activities take place in a public setting where the sharing of culture can be achieved through direct interaction with the American public or a segment thereof.
In addition, the employer must establish that:
- It has designated a qualified employee to administer the program and serve as liaison with USCIS;
- It will offer the alien wages and working conditions comparable to those accorded local workers similarly employed;
- It has the financial ability to compensate the participant(s), as shown by a copy of the employer’s most recent annual report, business income tax return or other form of certified accountant's report.
Period of Stay/Extension of Stay
Initial period of stay is up to 15 months. After you complete your Q cultural exchange program, you are afforded 30 days to depart the United States. You are required to spend 1 year outside the United States before you can apply for participation in the Q cultural exchange program again.
Family of Q Visa Holders
The Q nonimmigrant visa does not have a provision for any spouse or children to accompany or follow to join a Q-1 nonimmigrant. Therefore, any spouse or children must qualify for a visa classification for which they may be eligible.
R Religious Worker.
The Religious Worker visa is for persons seeking to enter the United States to work in a religious capacity on a temporary basis, under provisions of U.S. law, specifically the Immigration and Nationality Act.
Qualifying as a Religious Worker
Religious workers include persons authorized, by a recognized employing entity, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that religion, and workers engaging in a religious vocation or occupation.
The applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the U.S.;
The religious denomination and its affiliate, if applicable, are either exempt from taxation or qualifies for tax-exempt status; and
The applicant has been a member of the denomination for two years immediately preceding applying for religious worker status. The applicant is planning to work as a minister of that denomination, or in a religious occupation or vocation for a bona fide, non-profit religious organization (or a tax-exempt affiliate of such an organization).There is no requirement that individuals applying for R visas have a residence abroad that they have no intention of abandoning. However, they must intend to depart the U.S. at the end of their lawful status, absent specific indications or evidence to the contrary. The applicant has resided and been physically present outside the U.S. for the immediate prior year, if he or she has previously spent five years in this category.
The applicant’s prospective employer must file Form I-129, Petition for Nonimmigrant Worker, with the U.S. Citizenship and Immigration Services (USCIS).
It is very important for prospective employers to file the petition as soon as possible (but not more than 6 months before the proposed employment will begin) to provide adequate time for petition and subsequent visa processing.
The petition, Form I-129, must be approved by DHS/USCIS before the prospective religious worker can apply for a visa at a U.S. Embassy or Consulate abroad. When the petition is approved, the employer or agent is sent a Notice of Action, Form I-797, which serves as the petition approval notification. Petition approval is verified through the Department of State’s Petition Information Management Service (PIMS) at the visa applicant’s interview. Visa applicants must bring the approved I-129 petition receipt number to the interview, so that petition approval can be verified. It should be noted that the approval of a petition shall not guarantee visa issuance to an applicant found to be ineligible under U.S. immigration law.
PIMS Processing Update
If there’s a chance a beneficiary of a petition needs to obtain a visa at a U.S. Embassy or Consulate after the petitioner requests a change of status, extension of status, or amendment to the original petition it is advisable that the petitioner submit 2 copies of the updated petition with the original signatures on all forms to USCIS. When submitting the 2 copies of the updated petition it is encouraged to identify one of them with a brightly colored cover sheet with the notation “Please send this copy to the Kentucky Consular Center (KCC) upon approval”. Once approved, USCIS will then forward the marked copy of the updated petition to KCC for scanning and entry into the PIMS database where the U.S. Embassy or Consulate will be able to access the updated petition.
Applying for a Religious Worker Visa
Although religious workers may apply at any U.S. Embassy or Consulate abroad, applicants should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence, as it may be more difficult to qualify for the visa outside the country of permanent residence. As part of the visa application process, an interview at the embassy consular section is required for visa applicants between the ages of 14 through 79, with few exceptions. Persons age 13 and younger, and age 80 and older, generally do not require an interview, unless requested by the embassy or consulate.
To schedule the interview appointment, you will need the receipt number that is printed on the approved Form I-129 petition.
A nonimmigrant religious worker’s spouse and unmarried children under 21 years of age may be issued a religious worker visa. They may study, but may not accept employment in the U.S. Therefore, evidence of their financial support while in the U.S. will be necessary at the visa interview.
The visitor visa is a type of nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1) or for pleasure, tourism or medical treatment (B-2). International travelers with visitor visas comprise a large portion of temporary visitor travel to the United States every year.
Applying for a Visitor Visa from Overseas
Applicants for visitor visas should generally apply the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence. Visa applications are now subject to a greater degree of review than in the past so it is important to apply for your visa well in advance of your travel departure date.
As part of the visa application process, an interview at the embassy consular section is required for visa applicants from age 14 through 79, with few exceptions. Persons age 13 and younger, and age 80 and older, generally do not require an interview, unless requested by embassy or consulate.
Visitor Visa Extension
If you came to the U.S. on a nonimmigrant visa and you want to extend your stay you must apply with USCIS before your authorized stay, denoted on your Form I-94, expires. It is recommended you apply well in advance of your expiration date. The decision to grant or deny a request for extension of stay is made solely by the Bureau of Citizenship and Immigration Services.
Qualifying for a Student Visa
The consular officer will determine whether you qualify for the visa. Applicants must demonstrate that they properly meet student visa requirements including:
- Have a residence abroad, with no immediate intention of abandoning that residence;
- Intend to depart from the United States upon completion of the course of study; and
- Possess sufficient funds to pursue the proposed course of study.
Miscellaneous advice to students:
Students are encouraged to apply for their visa early to provide ample time for visa processing. Students may apply for their visa as soon as they are prepared to do so.
Students should note that Embassies and Consulates are able to issue your student visa 120 days or less, in advance of the course of study registration date. If you apply for your visa more than 120 days prior to your start date or registration date as provided on the Form I-20, the Embassy or Consulate will hold your application until it is able to issue the visa. Consular officials will use that extra time for application processing.
Students are advised of the Department of Homeland Security regulation which requires that all initial or beginning students enter the U.S. 30 days or less in advance of the course of study start/report date as shown on the Form I-20. Please consider this date carefully when making travel plans to the U.S.
A beginning student who wants an earlier entry into the U.S. (more than 30 days prior to the course start date), must qualify for, and obtain a visitor visa. A prospective student notation will be shown on his/her visitor visa and the traveler will need to make the intent to study clear to the U.S. immigration inspector at port of entry. Before beginning any studies, he or she must obtain approval for a change to Exchange Visitor status, filing Form I-539 , Application for Change of Nonimmigrant Status and pay the fee. Also you must submit the required Form I-20 to the Department of Homeland Security office where the application is made. Please be aware that one can not begin studies until the change of classification is approved.
Continuing students may apply for a new visa at any time, as long as they have been maintaining student status and their SEVIS records are current. Continuing students may also enter the U.S. at any time before their classes start.
What is SEVIS and SEVP? What should you know about it?
The Student and Exchange Visitor Program (SEVP) is designed to help the Department of Homeland Security (DHS) and Department of State better monitor school and exchange programs and F, M and J category visitors. Exchange visitor and student information is maintained in the Student and Exchange Visitor Information System (SEVIS). SEVIS is an Internet-based system that maintains accurate and current information on non-immigrant students (F and M visa), exchange visitors (J visa), and their dependents (F-2, M-2, and J-2). SEVIS enables schools and program sponsors to transmit mandatory information and event notifications via the Internet, to the DHS and Department of State (DOS) throughout a student or exchange visitor's stay in the United States. Select SEVIS to go to the DHS, U.S. Immigration and Customs Enforcement Internet site and learn more.
All student applicants must have a SEVIS generated I-20 issued by an educational institution approved by DHS, which they submit when they are applying for their student visa. Your school is responsible for entering your information for the I-20 student visa form into SEVIS. The consular officer will need to verify your I-20 record electronically through the SEVIS system in order to process your student visa application. Unless otherwise exempt, all F-1 or M-1 principal applicants must pay a SEVIS I-901 fee to the DHS for each individual program.
The M-1 student visa is a nonimmigrant visa which allows foreign students wishing to pursue vocational or non-academic studies, other than language training, to enter into the U.S.
Typical institutions that accept M students include community and junior colleges that provide vocational and technical training, vocational high schools, and other schools that provide nonacademic training, other than English language instruction. The school must demonstrate that its international student program will fulfill educational objectives and will not be used as a means of making the students work. Your program must have a goal and you must be involved in a “full course of study.” A full course of study means study in a community or junior college, with at least 12 semester or quarter hours. It must be in a school where anyone attending for at least 12 semester or quarter hours is charged full tuition, or considered full-time.
Generally Students get M-1 Visa for one year or for the amount of time required to complete the course of study. They are also given 30 days grace period in which to depart following completion of the course. M-1 students are not allowed to continue on to the university level.
M-1 students are not authorized to work on- or off campus employment. They are, however, allowed to participate in practical training following the completion of their course of study. A request for practical training must be submitted no more than 60 days before the completion of studies, and no later than 30 days after completion. The period of practical training is determined by authorizing one month of training for each four-month period of study, however, the practical training is not to exceed six months.
M-1 students’ spouse and children can apply for M-2 Visa. The spouse and/or children of the holder of an M-1 visa may not work on derivative M-2 visa; they may, however, study at an academic institution.
The J-1 Visa is for individuals wishing to participate in certain specially approved exchange visitor programs. The J-1 Visa provides foreign nationals with opportunities to participate in educational and cultural programs in the United States and return home to share their experiences. In order to qualify for a J-1 Visa, an individual must be sponsored by an organization which has been approved by the U.S. government to act as an exchange visitor program. There are a wide variety of such programs, including programs intended for:
Professors and researchers scholars
Trainees and Intern and Flight Trainee
College and university students
Secondary school students
Summer work and travel
Spouses and Children
Spouses and/or children under the age of 21 who wish to accompany or join the principal (or primary) exchange visitor (J) visa holder in the U.S. for the duration of his/her stay require exchange visitor visas. The application procedure is the same as that for a primary visa applicant. The sponsor must approve the accompaniment of the spouse and/or children and who will each be issued their own Form DS-2019. This form is used to obtain the required visa and the spouse and dependents can enter the U.S. at the same time as the principal exchange visitor or at a later date.
Work - The spouse and/or children of an exchange visitor in the U.S. may not work in J-2 status, unless they have filed Form I-765 Application for Employment Authorization and U.S. Citizenship and Immigration Services (USCIS) has approved permission to work.
Study- The spouse and/or children of an exchange visitor visa holder who are in the U.S. on an exchange visitor visa may study in the U.S. without also being required to apply for a student (F-1) visa or change to F-1 status.
Spouses and/or children who do not intend to reside in the U.S. with the principal visa holder, but visit for vacations only, may be eligible to apply for visitor (B-2) visa, or if qualified, travel without a visa under the Visa Waiver Program.
The F visa is reserved for non-immigrants wishing to pursue academic studies and/or language training programs.
F-1 Student Visa
You may enter in the F-1 visa category provided you meet the following criteria:
- You must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate Your school must be authorized by the U.S. government to accept international students
- You must be enrolled as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program
- You must be proficient in English or be enrolled in courses leading to English proficiency
- You must have sufficient funds during the entire proposed course of study
- You must maintain a residence abroad which you have no intention of giving up
F-1 students may not work off-campus during the first academic year, but may accept on-campus employment subject to certain conditions and restrictions. There are various programs available for F-1 students to seek off-campus employment, after the first academic year. F-1 students may engage in three types of off-campus employment, after they have studying for one academic year. These three types of employment are:
- Curricular Practical Training (CPT)
- Optional Practical Training (OPT) (pre-completion or post-completion)
- Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT)
Any off-campus employment must be related to the area of study and must be authorized prior to starting any work by the Designated School Official (DSO) the person authorized to maintain the Student and Exchange Visitor Information System (SEVIS) and USCIS.
Optional Practical Training
Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Under the prior rules, an F-1 student could be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies.
- Pre-completion OPT:
An F-1 student may be authorized to participate in pre-completion OPT after he or she has been enrolled for one full academic year. The pre-completion OPT must be directly related to the student’s major area of study. Students authorized to participate in pre-completion OPT must work part-time while school is in session. They may work full time when school is not in session.
- Post-completion OPT:
An F-1 student may be authorized to participate in post-completion OPT upon completion of studies. The post-completion OPT must be directly related to the student’s major area of study. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT related to such a degree, may apply for a 17-month extension.
Eligible STEM degrees
To be eligible for the 17-month OPT extension, a student must have received a degree included in the STEM Designated Degree Program List. This list sets forth eligible courses of study according to Classification of Instructional Programs (CIP) codes developed by the U.S. Department of Education’s National Center for Education Statistics (NCES).
The STEM Designated Degree Program List includes the following courses of study:
Computer Science Applications Biological and Biomedical Sciences
Actuarial Science Mathematics and Statistics
Engineering Military Technologies
Engineering Technologies Physical Sciences
Science Technologies Medical Scientist
Note that to be eligible for an OPT extension the student must currently be in an approved post-completion OPT period based on a designated STEM degree. Thus, for example, a student with an undergraduate degree in a designated STEM field, but currently in OPT based on a subsequent MBA degree, would not be eligible for an OPT extension.
Application process to participate in pre- or post-completion OPT
- Students must initiate the process by requesting the Designated School Official (DSO) at their academic institution to recommend the OPT. The DSO makes such recommendation by endorsing the student’s Form I-20 and by making appropriate notation in SEVIS, the system used to track F-1 students.
- Students then file Form I-765, Application for Employment Authorization Document (EAD), with U.S. Citizenship and Immigration Services (USCIS). If approved, USCIS will issue an EAD to the student.
- The student may begin engaging in pre- or post-completion OPT only after an application has been approved and an EAD has been issued.
When must a student apply for an OPT extension
- Under the prior regulations, F-1 students had to apply for post-completion OPT prior to graduation.
- This rule allows F-1 students seeking initial post-completion OPT to apply during their 60-day departure preparation periods in the same way that they are allowed to apply for a change to H-1B status during their departure preparation periods.
- Students may apply for an OPT extension at any time prior to the expiration date of their current OPT period.
What are the eligibility requirements for the 17-month extension of post-completion OPT?
- The student must have a bachelor’s, master’s, or doctorate degree included in the STEM Designated Degree Program List.
- The student must currently be in an approved post-completion OPT period based on a designated STEM degree.
- The student’s employer must be enrolled in E-Verify.
- The student must apply on time (i.e., before the current post-completion OPT expires).
What is the E-Verify program?
- The E-Verify program is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA).
- The E-Verify program currently is the best means available for employers to determine employment eligibility of new hires and the validity of their Social Security Numbers.
- E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 with records contained in SSA and DHS databases to help employers verify identity and employment eligibility of newly-hired employees.
Application process for the 17-month STEM extension
- The student files Form I-765 with USCIS, Form I-20 endorsed by the DSO, a copy of the STEM degree, and the required application fee.
- Form I-765 is being amended to require the student to indicate the degree and provide the employer’s E-Verify information.
- If their post-completion OPT expires while the 17-month extension application is pending, students who timely filed their STEM extension applications with USCIS will receive an extension of employment authorization after their current employment authorization expires, but for no more than 180 days.
What must a student do after being granted the 17-month STEM extension
- The student must report to his or her DSO (within 10 days) any change in:
- Legal name;
- Residential or mailing address;
- E-mail address;
- Employer name;
- Employer address;
- The student must also report to his or her DSO every six months, confirming the information listed above; even if there have been no changes.
- The requirement to report continues if the student’s 17-month STEM extension is extended further by the automatic cap-gap extension.
F-2 visas are given to dependents of an F-1 student. F-2 visa-holders are prohibited from any form of compensated employment. However, minor children may attend public schools.
F-3 visas are given to nationals of Mexico or Canada only, when they reside in their country of origin while attending school. Called “Border Commuters,” these visa holders may study part or full time. However, unlike F-1 visa holders, they may not work on campus, although they may still be authorized for Curricular Practical Training; Optional Practical Training may only be used after graduation.
Green Card through Marriage
There are no quota restrictions on the number of people who can obtain green cards in the U.S. through marriage to U.S. citizens.
For this reason, the USCIS is always a bit skeptical about the bona fides of the marriage when a foreign-born individual marries a U.S. citizen and immediately applies for a green card, especially if the person just arrived in the U.S. or was recently placed in removal proceedings.
To obtain a green card, your marriage must be bona fide. This is a lot easier to prove if there is a wedding reception where the U.S. citizen spouse’s parents and relatives are present, where the couple has joint property and files joint income tax returns and especially if the couple has a child together.
If you are applying for naturalization based on five years as a lawful permanent resident or based on three years as a lawful permanent resident married to a U.S. citizen, you may apply for naturalization up to 90 days before you meet the “continuous residence” requirement.