The Non-Immigrant Visa

Non-immigrant (temporary) visas are generally available to qualified individuals who wish to travel to and remain in the United States for a finite period of time for a specific purpose, such as to study, undertake employment or for business visits.

 

Most applicants for temporary admission to the U.S., regardless of age, must have his or her own visa, unless they qualify to enter the U.S. for a short trip for pleasure or business under the Visa Waiver Program. Spouses and unmarried children under the age of 21 may apply to obtain a visa to accompany the principal applicant, but usually employment authorization is not granted to dependent visa holders.

Types of Non-Immigrant Visas

Please note, this list is not exhaustive, nor is it meant to include all activities permitted to a visa holder.

 

Who May Not be Eligible for a Non-Immigrant Visa?

U.S. immigration law forbids the issuance of a visa and admission to the U.S. to any person who is ineligible for a visa and admission under U.S. law. Grounds of inadmissibility are listed in the Immigration and Nationality Act, including persons convicted of a crime involving moral turpitude (with certain exceptions), controlled substance violators, and persons who by fraud or willfully misrepresenting a material fact, seek to procure (or have sought to procure or have procured) a visa, admission to the U.S., other documentation, or benefit provided under the Immigration Act. All applicants for a non-immigrant visa who are determined to be ineligible by a U.S. consular officer may apply for a waiver of inadmissibility if a waiver is recommended by a consular officer or by the Secretary of State.

All applicants for non-immigrant visas, with the exception of certain H and L visas, are presumed by law to intend to reside permanently as immigrants in the United States. The applicant must therefore prove that he or she only intends to remain in the U.S. for a temporary period. In addition, most non-immigrant visa categories require the applicants to demonstrate that they will at all times maintain a foreign residence outside of the U.S. which they do not intend to abandon.

Visa Waiver Program (WB, WT)

Citizens of 36 countries may apply to enter the United States without a visa, under the Visa Waiver Program. The countries included in the program are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and United Kingdom.

Qualified citizens of these countries must travel on a participating carrier with an un-expired passport and a return ticket. They must be coming to the U.S. as tourists (WT), on business (WB), or in transit through the U.S. These individuals may be admitted for a stay of 90 days so long as they are not inadmissible under U.S. immigration laws. Visa free travel for business does not generally permit productive employment or self-employment while in the U.S.

Visitor for Business (B-1)

A B-1 business visitor may be admitted for the purpose of engaging in business, but not for the purpose of being employed.

Definition of Business:

The term business as used in INA 101(a)(15)(B), refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire.

Persons coming to the U.S. on business, such as to negotiate contracts, consult with business associates, or attend conventions, conferences or seminars, and other legitimate activities of a commercial or professional nature may apply for a B-1 visitor for business visa. B-1 visa holders may not receive a salary or other remuneration from a U.S. source other than expenses or reimbursement of expenses incurred incidental to the visit. With few exceptions, a B-1 visa holder may not engage in ordinary local employment or labor for hire.

Visitor for Pleasure (B-2)

This visa is generally for persons coming to the U.S. for tourism, social visits to family and friends, or medical treatment. Usually a visitor for pleasure is admitted for a period of six months and may never engage in employment in the U.S.

Transit without Visa/Crew members (C-1/D)

The C visa is available to a person in immediate and continuous transit through the United States. Periods of admission are limited to 29 days or less. D visa holders are primarily crew members, either on a vessel or aircraft. Spouses and unmarried children under the age of 21 of C-1/D visa holders may travel as tourists.

Treaty Traders/Treaty Investors (E-1/E-2)

Citizens of certain countries having an appropriate treaty of trade, commerce and navigation between the U.S. and the foreign country may apply for treaty visas.

Treaty trader (E-1) visas are available to qualified persons solely to carry on a substantial trade in goods, services or technology principally between their home country and the U.S.

Treaty investor (E-2) visas are available to qualified persons solely to develop and direct the operations of a business in which they have invested or are actively in the process of investing a substantial amount of capital.

Executives and high level manager/supervisors of a treaty trader or treaty investor as well as other employees with special qualifications essential to the efficient operation of the U.S. enterprise are also admissible under E-1 or E-2 visas, if they are the same nationality as the trader or investor. The spouses and unmarried children under the age of 21 of traders, investors and their treaty employees are also admissible as E-1’s and E-2’s. Unlike treaty traders, investors and employees, their spouses and unmarried children do not need to be nationals of the treaty country and they are authorized to accept employment in the U.S.

Students (F-1/M-1)

A person wishing to enter the U.S. temporarily to attend a full course of study at an INS approved college, university, or other academic institution requires a student (F-1) visa. F-1 visas are not available for attendance at public elementary schools and publicly-funded adult education programs. F-1 visas will only be issued for attending a public secondary school for up to twelve months, and only if the foreign student contracts to reimburse the school authority for the cost of providing the education.

Those wishing to attend an INS approved vocational or other recognized non-academic institution (other than a language training program) may apply for a vocational student (M-1) visa.

Before applying for either an F-1 or M-1 visa, a prospective student must obtain from the school a Form I-20A-B (Certificate of Eligibility for Non-immigrant (F-1) Student Status or Certificate of Eligibility for Non-immigrant (M-1) Student Status, respectively). Spouses and unmarried children under the age of 21 may apply to accompany the student in F-2/M-2 status but may not accept employment.

Temporary Workers and Trainees (H Visas)

There are several H visa categories, all of which require sponsorship by a U.S. employer or agent.

Nurses (H-1A)

Certain registered nurses with appropriate qualifications may apply for an H-1A visa based upon an offer of employment from a government-qualified facility or institution.

Professionals (H-1B)

This visa is available to an individual who is offered a temporary position in the U.S. in a specialty occupation (a position that requires a university degree as a normal entry-level requirement and the person must possess either the relevant degree or the vocational equivalent of the degree). Fashion models who can establish that they are of distinguished merit and ability, as well as qualified individuals who are coming to the U.S. to perform services of an exceptional nature relating to a cooperative research and development project for a government-sponsored project, may also qualify for this visa classification.

Nurses in Shortage Areas (H-1C)

By law enacted 12 November 1999, Congress authorized visas for nurses who will work in geographic areas designated as Health Professional Shortage Areas by the Department of Health and Human Services.

Temporary Workers (H-2)

An individual who is coming temporarily to the U.S. to perform temporary services may qualify for an H-2 visa, if the sponsoring employer can prove that there is a shortage of U.S. workers to fill the position and prove that the required services are temporary or seasonal in nature.

Trainees (H-3)

An individual who wishes to enter the U.S. at the invitation of an organization or individual, for the purpose of receiving training in any field, other than physicians in the medical field, may be eligible for an H-3 visa. The sponsoring employer must confirm the type of training to be given, that the type of training offered is not available in the visa holder’s home country, that the visa holder will not engage in productive employment unless such employment is incidental and necessary to the training, and that the training will benefit the visa holder in pursuing a career outside the U.S. Spouses and unmarried children under the age of 21 of H visa holders may apply to accompany the principal visa holder in H-4 status but are not authorized to accept employment.

Information Media (I)

Representatives of foreign press, radio, film or other information media may apply for an “I” visa to enter the U.S. solely to engage in their profession on behalf of their foreign information media employer.

Exchange Visitor (J-1)

J-1 visas are available to persons who wish to undertake employment, training or research in the U.S. based on sponsorship by an educational or other non-profit institution. This category also includes persons wishing to work as au pairs in the United States based on sponsorship by approved au pair programs. Spouses and unmarried children under the age of 21 may apply for a J-2 visa to accompany the J-1 visa holder.

In some cases a J-1/J-2 visa holder may be subject to a two year foreign residence requirement before they may apply for permanent resident status and certain non-immigrant visa categories. Waivers of the two year foreign residence requirement are sometimes available.

Fiancé (K-1); and certain spouses of U.S. citizens (K-3)

A K-1 visa is available for a qualified fiancé to enter the United States solely for the purpose of marrying a U.S. citizen within 90 days after entry. Unmarried children under the age of 21 may apply for a K-2 visa to accompany the K-1 visa holder. Persons who desire to enter the U.S. in order to marry a US citizen and then return abroad may qualify for entry as a visitor for pleasure (B-2/WT).

Spouses of U.S. citizens who are already married and are waiting outside of the U.S. for the approval of their immigrant visa petitions previously filed in the U.S. may apply for a K-3 visa. If the marriage occurs outside the U.S. the K visa must be issued by the consulate where the marriage occurred. If the marriage occurred in the U.S., then the visa application must be filed in the country where the applicant resides. The K-3 visa will allow the spouse to enter the U.S. and await the approval of the petition. Unmarried children under the age of 21 may be issued K-4 visas to accompany or follow to join the K-3 spouse. A K-3 visa petition is not required to be filed on the child’s behalf.

Intracompany Transferee (L)

Individuals who have been employed by a company, organization or firm as a manager, executive, or in a specialized knowledge capacity, may qualify for L-1 status if, during the 3 years preceding entry to the U.S., they have worked for the employer outside the U.S. for at least one continuous year and now wish to transfer to an executive, managerial or specialized knowledge position in the U.S. to work temporarily with a parent, subsidiary, branch or affiliate of their foreign employer. Spouses and unmarried children under the age of 21 may apply to accompany the principal visa holder in L-2 status and are authorized to accept employment.

Extraordinary Ability/Extraordinary Achievement (O)

O-1 visas are available to qualified persons who can demonstrate either extraordinary ability in the sciences, arts, education, business and athletics, or a record of extraordinary achievement in motion picture and television productions. O-2 visas are available to qualified individuals in order to accompany and assist the O-1 visa holder. The O-2 visa applicant must demonstrate that he or she is an integral part of the performance and has critical skills and experience, not of a general nature, which cannot be performed by other individuals. The spouses and unmarried children under the age of 21 of both O-1 and O-2 visa holders may apply for O-3 visas to accompany the O-1 and O-2 visa holder but employment is not authorized.

Religious Workers (R)

Qualified members of a religious denomination may apply for an R-1 visa to work in the U.S. with a non-profit religious organization as a minister of religion, religious professional, or other religious worker. Spouses and unmarried children under the age of 21 may apply to accompany the principal R visa holder in R-2 status but may not accept employment.

Spouses and Minor Children of Lawful Permanent Residents Awaiting Immigrant Visas (V)

V visas are available for qualified spouses and unmarried children under the age of 21 of lawful permanent resident aliens who are the beneficiaries of immigrant visa petitions filed on or before December 21, 2000 and have been waiting three years or more from the date the Immigration and Naturalization Service received the immigrant visa petition. V visa holders may live and work in the U.S. while waiting to qualify for permanent residence.