en   ru   zh   es

NON-IMMIGRANT VISAS

A. A Few General Remarks.

1. According to the U.S. law, immigration is a privilege granted by American authorities to a foreigner.  This privilege can be denied to those who are not U.S. citizens, even if it had been granted to them before.

2.  The United States Citizenship and Immigration Service (USCIS) may deny entry to the USA even to people who had lived here dozens of years as legal resident aliens.  USCIS, therefore, can deny a request for a visa from a foreigner who does not possess such status.  There can be no guarantee as to the outcome of any immigration case, because USCIS has almost complete discretion in this area.

В. Entry with a Non-Immigrant Visa

The most interesting and popular visas to live and work in the USA among our clientele are visas E1/E2 and L-1A/L-1B.  
 
1. Non-immigrant visa L-1.
 
This visa is used by international companies to bring in managers (L-1A) and highly qualified specialists (L-1B). The maximum terms of validity are seven years and five years, respectively, but often the visa is issued for up to three years with the option to extend.  A visa can also be issued for a new entity which is a branch of an existing and established foreign firm, but USCIS is very strict with this type of application; those visas are issued - if at all - for one year only.  After that, in order to obtain their extension, the US entity must present clear evidence of viability of the new US business. 
 
L-1 is a "dual intent" visa which allows the applicant not to declare his intent to return to his own country.  Visa L-1 holders and their immediate family members can become permanent residents of the United States by applying for and being qualified as EB-1C immigrants.
 

2. Non-immigrant Е1/E2 visas. 
 
These visas are issued on the basis of an existing "qualifying treaty" between the applicant's country and the United States.  At least 50% of the company stock must belong to a citizen of a "qualifying treaty" country; only citizens of that country can obtain visa E1 or E2.  
 
The qualifying treaty may be of one of two varieties:
 

Visa Е-1 is for countries maintaining a treaty of commerce and navigation or a bilateral agreement of this nature with the U.S.; and

Visa Е-2 is for nations having a mutual investment treaty with the United States.

 
Visa E1 and E2 holders cannot obtain the status of permanent resident of the United States, but they have certain advantages - for example, there is no limitation on the number of visa extensions.
 
3. Non-immigrant visas H-1B and H-2B.
 
These visas can be obtained only when a potential client has a qualifying job offer in the United States and the parties agree to our legal representation of both the visa applicant and his/her employer.  The particulars of our work on either visa as well as the USCIS requirements will be explained during an exploratory consultation.
 
4. Non-immigrant visas "F", "J", "О", and "Р".
 
Those require the applicant to declare his intent to return to his own country before entry in the United States.  
 
Visa "F" is a "student visa.”  It is issued to those wishing to obtain an education in the United States (but not with US government funds) and for the duration of the course of intended studies.  The applicant must demonstrate ability to pay tuition and coincidental expenses (books, room, board, student fees, etc.) for himself and his family (if they accompany him to the US) for at least one year.  Usually, the "F" student is not allowed to work during the course of studies, but there are exceptions.
 
Visa "J" is issued to those aliens who come to America in conjunction with an established scientific, educational, or cultural exchange program.  It also can be used to obtain an education and has no limitation as to the origin of funds ( e.g., grants from the US Government can be used).  However, in this case a two-year foreign residence requirement would usually prevent the J-1 visa holder from staying in the US after the course of studies is completed and/or applying for a permanent resident status.
 
With regard to the level of applicant's professional skills, visas "O-1" and "P-1" are analogous to the EB-1A requirements.  Therefore, if an applicant plans to settle in the US, it's preferable to proceed with the EB-1 petition.

5. Non-immigrant "K" visas.

The number of “fiancé” visas processed by our firm increases steadily from year to year and has become an important part of our immigration practice. Therefore, the information below may prove useful to some visitors of our site.

FIANCE(E) CLASSIFICATION

To establish K-1 visa classification for an alien fiance(e), an American citizen must file a Petition for Relative or Fiance(e), with the Regional Service Center of USCIS which serves the place of petitioner's residence in the United States. The approved petition will be forwarded by USCIS to the American consular office where the alien fiance(e) will apply for a visa. A petition is valid for a period of four months from the date of USCIS action, and may be revalidated by the consular officer.

VISA INELIGIBILITY/WAIVER

Applicants must be refused a visa if:

they have a communicable disease;
they have a dangerous physical or mental disorder;
they are drug addicts;
they have committed serious criminal acts (including crimes of moral turpitude, drug trafficking, and prostitution);
they are likely to become a public charge;
they have used fraud or other illegal means to enter the United States;
they are ineligible for citizenship.

The two-year foreign residency requirement for former exchange visitors also applies. If an applicant is found ineligible, the consular officer will advise the applicant whether the law provides for a waiver.

APPLYING FOR A FIANCE(E) VISA

Upon receipt of an approved petition, the American consular officer will notify the beneficiary and give him or her the necessary forms and instructions to apply for a "K" visa. Since a fiance(e) visa applicant is an intending immigrant, he or she must meet most of the same requirements of an immigrant visa applicant.

In addition to the prescribed application forms, the following documents are normally required:

  1. Valid passport
  2. Birth certificate
  3. Divorce or death certificate of any previous spouse
  4. Police certificate from all places lived since age 16
  5. Medical examination
  6. Evidence of support (including Form I-134, recent income tax returns, banks statements)
  7. Evidence of valid relationship with the petitioner
  8. Photographs

The petitioner may establish his/her American citizenship either through a birth certificate evidencing his or her birth in the United States or through a Certificate of Naturalization or Citizenship.

OTHER DOCUMENTATION

Both petitioner and beneficiary must be legally able and willing to conclude a valid marriage in the United States. They must have previously met in person within the past two years. The fact of their meeting may be established by photos of the petitioner and beneficiary together, airline tickets, entry stamps in passports, etc. In rare circumstances the Attorney General may waive the requirement of the parties
meeting in person. As soon as the processing of a case is completed and the applicant has all necessary documents, a consular officer will interview the fiance(e). If found eligible, a visa will be issued, valid for one entry during a period of six months.

ENTRY INTO UNITED STATES

At the port of entry, the alien fiance(e) will receive a stamp in his or her passport giving temporary permission to work pending marriage to the U.S. citizen. The marriage must take place within 90 days of admission into the United States. Following the marriage, the alien spouse must apply to USCIS for conditional permanent residence status (Form I-485). Pending adjudication of this application, the alien spouse will be authorized to work in the United States. Two years following issuance of the conditional resident status, the alien may apply to the USCIS for removal of such conditional status (Form I-751). Upon positive adjudication of the I-751 petition, the alien spouse will be accorded the permanent resident status. Three years after the issuance of the conditional resident status, provided the spouses are still married, the alien spouse may apply for Naturalization in the United States (Form N-400).

FIANCE(E)
S CHILDREN

The unmarried, minor children of a K-1 beneficiary derive "K-2" nonimmigrant visa status from the parent so long as the children are named in the petition. A separate petition is not required if the children accompany or follow the alien fiance(e) within one year from the date of issuance of the K-1 visa. Thereafter, a separate immigrant visa petition is required.

 

 

© Valery Milgrom, 1997 - 2012

Disclaimer: This website is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Web hosting by Somee.com