NONIMMIGRANT VISAS AND TEMPORARY STAYS:

H-1b Visas

Aliens seeking to enter the United States for a temporary period of time are classified as nonimmigrants. Because there is generally no limit as to the number of nonimmigrants who may enter the United States during any year, it is usually much easier and quicker to obtain a nonimmigrant visa than an immigrant or permanent resident visa. While there are literally dozens of nonimmigrant visa categories, many of these are very specific and not widely used, or can be obtained without much difficulty directly from a US consulate abroad. In many instances, some of these visas can later be converted to permanent residence status.

THE B-1 VISITOR FOR BUSINESS AND THE B-2 VISITOR FOR PLEASURE:

The most common and widely used of the non-immigrant visas is the B visa. There are two types of B visas: the B-1 (business visitor) and the B-2 (visitor for pleasure). Most businesspersons entering the United States enter with B-1 visas. The visa itself, which is issued by a US consul abroad, may be issued for varying periods of time, and may be issued for single or multiple entries. This must be distinguished from the period of time that is granted by the immigration service once the alien makes application for entry at a US border point. Usually, the immigration service will grant the B-1 applicant the period of time that is necessary for him or her to accomplish the purpose of the visit, usually from a few weeks up to six months.

B-1 visas are usually issued to aliens who are coming to the United States to enter into or negotiate contracts, purchase goods for shipment abroad, obtain orders for products manufactured abroad, attend business conventions, consult with business organizations, or to investigate business opportunities in the United States. They may also be used to check on business investments that the alien has previously made in the United States, and to permit the alien to open and establish a new US business, although, it must be pointed out that, the alien cannot actively participate in the management of said business.

In order to obtain a B-1 visa, the alien must establish that he or she has a residence in a foreign country which he or she has no intention of abandoning. The alien must also establish an intent to depart from the United States at the expiration of the temporary stay and that he or she has adequate funds to cover the expenses of the expected stay in the United States. In this regard, the consular or immigration official will look to the alien's ties with the foreign country to determine whether there are sufficient contacts to indicate the likelihood of the alien's returning to the foreign domicile. These ties would include such things as employment abroad, family, property, or other business or social connections with the foreign country.

Accompanying family members of B-1s, who are defined as the spouse and minor unmarried children, are usually given the same period of time as the principal alien. If, after entry to the United States, the alien discovers that he or she needs additional time in order to accomplish the purpose of the trip, an extension of time may be requested from the immigration service, on immigration form I-539, which applications are usually granted.

A B-2 visitor for pleasure is defined as an alien who has a residence in a foreign country, which he or she has no intention of abandoning, and who is coming to the United States temporarily for pleasure. The statute also states that the alien cannot be coming to the United States primarily for the purpose of studying. This does not, however, prohibit the alien from engaging in brief or incidental study. The State Department defines pleasure as any legitimate activity of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature. However, any type of employment whatsoever is precluded by the B-2 visa, even if the alien receives no remuneration, benefit, or gain for the service rendered.

Since the alien's stay in the United States must be temporary, there must be a clear intention to depart prior to the end of the authorized period of stay. In addition, the B-2 alien must show that he or she has sufficient funds to accomplish the purposes of the stay in the United States.

The B-2 visa, which is issued by a US consul abroad, like the B-1 visa, may be issued for varying periods of time, and may be issued for single or multiple entries. Again, this must be distinguished from the period of time that is granted by the immigration service once the alien makes application for entry at a US border point. In most instances, an applicant entering as a B-2 will be admitted for a period of six months.

Accompanying family members of B-2s, who are defined as the spouse and minor unmarried children, are usually given the same period of time as the principal alien. If, after entry to the United States, the alien discovers that he or she needs additional time in order to accomplish the purpose of the trip, an extension of time may be requested from the immigration service, on immigration form I-539, which applications are usually granted.

In many instances, the US consul will issue a joint B-1/B-2 visa. In these cases, the alien may seek to enter the United States, in either nonimmigrant category. At the time of entry, the alien will advise the immigration officer at the port of entry of the primary purpose of the trip. If the primary purpose is for business, the alien will be admitted as a B-1, business visitor. Otherwise, the alien will be admitted as a B-2, visitor for pleasure.

E-1 TREATY TRADER AND E-2 TREATY INVESTOR VISAS E-1 (Treaty Trader) and E-2 (Treaty Investor) visas are excellent for those businessmen who wish to enter into long term business ventures in the United States.

These visas are available, however, only to those aliens who are citizens or nationals of treaty countries, to wit, those countries that have entered into treaties of commerce and navigation with the United States. (A complete list of treaty countries is available on our web site).

E-1 and E-2 visas are defined by the Immigration and Nationality Act respectively, as visas to an alien who is "entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he or she is a national and, (1) solely to carry on substantial trade, principally between the United States and the foreign state of which he or she is a national, or (2) solely to develop and direct the operation of an enterprise in which he or she has invested or of an enterprise in which he or she is actively in the process of investing a substantial amount of capital."

An E-1 or E-2 visa can be either for the principal applicant, or for a managerial employee of the E-1 or E-2 company. In both cases the employer must have the nationality of the treaty country or, if an organization, it must be principally owned by personnel from the treaty country. For E-1 purposes, the trade must be of a substantial nature that is international in scope, and must be principally between the United States and the foreign state of which the applicant is a national. If the applicant is an employee, he or she must be engaged in duties of a supervisory or executive character or must have some specific qualifications that would make his or her services essential to the efficient operation of the employer's enterprise.

For an E-2 visa, the applicant must have invested or must be investing in a bona fide enterprise and not be coming to the United States solely in connection with the investment of a small amount of capital in a marginal enterprise solely for the purpose of earning a living, or if the applicant is an employee, he or she must be employed in a responsible capacity by an individual or company that has made a substantial investment in a business enterprise in the United States.

Unlike other types of non-immigrant visas, the E visas do not require the alien to establish that he or she is proceeding to the United States for a specific temporary period of time. The regulations merely require that the alien demonstrate intent to depart upon termination of his or her status. Also, the E visa applicant need not demonstrate that he or she has a residence in a foreign country which he or she has no intention of abandoning. There should be some indication however, that the alien will eventually return to his or her country upon the termination of their stay in the United States.

To qualify for an E-1 visa, the applicant must be coming to the United States to "carry on substantial trade, principally between the United States and the foreign state of which he or she is a national." While the amount of trade is obviously important, the State Department is more concerned with the volume of trade rather than the monetary amount. Therefore, many transactions of relatively small volume could establish the necessary course of trade as outlined in the statute. Furthermore, the trade must be principally between the United States and the country of the alien's nationality. This requires that at least fifty-one (51%) percent of the total amount of trade be between the United States and the country of which the alien is a national.

The E-2, Treaty Investor Visa, requires that the applicant be coming to the United States to develop and direct the operations of an enterprise in which he or she has invested or is actively in the process of investing, a substantial amount of capital. As previously noted, the investment must be substantial and not just a small amount of capital invested in a marginal enterprise for the purpose of earning a living. There has been no specific guideline on the minimum amount of investment, although the Regional Commissioner for the Southern Region of INS has stated that an investment of more than seventy-five thousand ($75,000) dollars could qualify. (However, a significantly larger investment is generally recommended.) Also, an "investment" means the placing of funds or other capital assets "at risk" in the hope of generating a return on the funds. Therefore, uncommitted funds in an idle bank account do not constitute an investment. Furthermore, an idle, passive, speculative investment merely held for potential appreciation in value such as land or stocks does not qualify under the statute.

In addition to the substantial investment in a business enterprise, the investor must be coming to the United States to develop and direct the operations of the enterprise in which he or she has made the investment. This means that the principal treaty investor must have at least fifty-one (51%) percent ownership of the investment, unless he or she is coming as an employee of the enterprise.

Generally, an E visa will be issued for a period of five (5) years. The spouse and children of the principal applicant will also receive E visas for the same period of time. When they enter the United States, they will be given a period of stay of one (1) year. If the alien desires an extension, he or she would file a request for an extension with the Immigration and Naturalization Service on immigration form I-129, together with the E supplement, and an extension will be granted in increments of two (2) years. The State Department in Washington, DC, can also reissue an E visa without the need of the alien leaving the United States in order to have the visa placed in his or her passport. The dependents of "E" aliens will generally not be permitted to work. However, should they work without authorization, their status will not be terminated, but they may be precluded from later changing their status because of the unauthorized employment.

L-1 VISAS FOR EXECUTIVES, MANAGERS AND THOSE WITH SPECIALIZED KNOWLEDGE:

An L-1 visa may be issued to an alien who, within three (3) years preceding the time of his or her application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying or following to join the principal alien.

In order to qualify for the L-1 visa the alien must have been employed abroad for one (1) year, out of the last three (3) years, by the company that is petitioning for his or her services, or by a subsidiary or affiliate thereof. This does not mean that the alien must have been abroad continuously during this time, but only that he or she had been employed by that foreign company on a continuing basis for at least one of the preceding three (3) years.

Furthermore, the alien's employment abroad, together with his or her intended employment in the United States, must be in a capacity that is executive, managerial, or involves specialized knowledge. There is no requirement that the position abroad and the position in the United States be identical.

To qualify as a manager the alien must: (a) manage the organization, or a department, subdivision, function, or component of the organization; (b) supervise and control the work of other supervisory, professional or managerial employees, or manage an "essential function" within the organization; (c) have the authority to hire and fire or, if there are no subordinates, function at a senior level within the organization; and (d) exercise discretion over the day- to-day operations of his or her function. First line supervisors cannot qualify for L-1 classification, unless they supervise other professionals.

To qualify as an executive, the alien must: (a) direct the management of the organization or a major component or function of it; (b) establish the goals and policies of the organization, component, or function; (c) exercise wide latitude in discretionary decision-making; and (d) receive only general supervision or direction from higher level executives or bodies.

To be classified as a specialized knowledge professional, the alien must (a) be a member of the professions and (b) have special knowledge of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.

Another requirement of the L-1 visa is that there must be a subsidiary or affiliate relationship between the foreign and the US companies, or they must be the same company. Generally, common stock ownership and a substantial degree of managerial control establish this relationship by the two companies. There is no requirement that the US Company already be in operation. However, the US Company must at least have physical premises from which to operate, and generally an occupational license or some other form of permission to engage in employment in the United States, from the local governmental authorities, is required.

An alien entering the United States on an L-1 visa must establish that he or she will be coming for a temporary period of time. Unlike the B, the L-1 visa applicant does not have to establish that he or she has a residence in a foreign country which he or she has no intention of abandoning. In addition, like the H-1B visa, an alien with an L-1 visa or status may be recognized as having a dual intent. This means that the alien may qualify for an L-1 visa even if he or she has evidenced an intention to reside in the United States permanently at some future time. This dual intent doctrine is applicable only to aliens who have an H-1B, E, O, P, or L visa. Evidence should still be presented, however, to show that the alien's services will only be required for a temporary period, and that the alien will be transferred to an assignment outside of the United States upon completion of those temporary services in the United States.

The L-1 visa is generally issued for a period of three (3) years, and may be extended in increments of two (2) years up to a total of seven (7) years. (There is a maximum stay of five (5) years for L-1s with specialized knowledge). Those transferees that are sent to the United States to open a new office will only receive a petition approval for one (1) year. At the end of the one year, the Immigration Service will look to see if there has been an increase in the number of employees, significant growth in cash flow, presence of significant customers and clientele, or similar elements in order to determine the need for a managerial or executive employee. The spouse and children of the principal alien will receive L-2 visas. They are not permitted to work with L-2 visas, and such unauthorized employment will violate their status in the United States. As with the H-1B and E visas, the L visa may be reissued by the visa office in Washington, DC without the need of the alien leaving the United States in order to have the visa placed in the passport.

OTHER NONIMMIGRANT VISAS: THE O & P VISAS AND THE VISA WAIVER PROGRAM

Besides the B, E, F, H, and L visas described in the previous sections, there are many more nonimmigrant visas available to those persons who wish to enter the United States on a temporary basis. Each of these visas is designated by using a letter of the alphabet, and run from the A visa all the way through the S visa. Since most of these visas are used sparingly, we will not discuss each and every type of nonimmigrant visa. We have described the most frequently used above, and at this point we will discuss the O & P visas which are used quite often, as well as discussing the most frequently used method of entering the United States as a nonimmigrant, which is under the visa waiver program. (Please note that a listing of nonimmigrant visas, together with an description of each, is on our web site).

The nonimmigrant O visa has three (3) distinct categories. The O-1 category is for aliens of extraordinary ability in the sciences, arts, education, business, or athletics. The O-2 category is for certain aliens accompanying O-1 aliens in the arts or athletics. The O-3 category is for dependents of aliens in the foregoing categories.

To qualify for an O-1 visa in the sciences, arts, education, or athletics, the alien must have extraordinary ability demonstrated by sustained national or international acclaim. To document the extraordinary ability, the alien must present substantial evidence from a list of criteria mentioned in the immigration regulations.

In addition to establishing the alien's qualifications, the petitioner (the one asking for the alien's services), must also establish that the position requires the services of an alien of extraordinary ability or achievement, whichever is applicable, and must submit evidence that the alien is coming to the United States to continue work in the area of extraordinary ability or achievement.

The type of evidence needed, as well as the definition of extraordinary ability, differs depending upon the occupation of the beneficiary. For instance, scientists, educators, business people and athletes must demonstrate "a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor." On the other hand, those seeking to enter as artists and entertainers (except for those affiliated with motion pictures or television production), must establish "distinction," which is defined as "a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts." The term arts is defined as including "any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts."

Those artists and entertainers, as well as directors and other essential technical and creative personnel, who seek entry in conjunction with motion picture or television productions, must meet a different standard. This standard of extraordinary achievement is defined as "a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is recognized as outstanding, leading, or well- known in the motion picture or television field."

An O petition may be filed by the O alien's prospective US employer, foreign employer, or by an established US agent. It is filed on immigration form I-129, together with the O supplement, and must be mailed to the INS service center that has jurisdiction over the alien's place of intended employment in the US. The artist or entertainer may add additional performances or engagements during the period of a valid O-1 petition without filing an amended petition. However, if the beneficiary changes employers, the new employer or agent must file a new petition.

Before an O petition can be approved, a mandatory consultation with an appropriate peer group, labor and/or management organization regarding the nature of the proposed work and the alien's qualifications is required. While the consultation is not binding on the immigration service, it will be given considerable weight. It should be forwarded together with the I-129 petition. If it does not accompany the petition, the immigration service will forward a copy of the petition and supporting documentation to an appropriate organization for their advisory opinion.

O-1 and O-2 aliens may be admitted for a period of up to three (3) years, and extensions in one year increments may be obtained. For aliens entering the US in O status, whose employment terminates for reasons other than voluntary resignation, the employer of the O alien, as well as the petitioner, are responsible for return transportation abroad.

There are four classifications of P visas: A P-1 visa is for internationally known athletes, individually or as part of a group or team, and entertainment groups, but not individual entertainers. P-2 aliens are performing artists under the auspices of a reciprocal exchange program. P-3 aliens are culturally unique entertainers. All three classifications include accompanying personnel. The P-4 category is for dependents of aliens in the preceding classifications.

To qualify as a P-1 nonimmigrant, individual athletes, athletic teams and entertainment groups must meet the basic standard of international recognition. Therefore, they must establish that they have a "high level of achievement in the 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."

Athletes who perform at an internationally recognized level may be admitted in P-1 status. This classification may be granted to internationally recognized athletes based on their own reputation and achievements as individuals. In addition, the proposed services must require an internationally recognized athlete. Athletic teams must be recognized internationally as outstanding in the discipline and must be coming to perform services that require such recognition. Team members also receive P-1 visas, but only to perform with the team. When filing P-1 petitions, the petition must be accompanied by a contract between the athlete or team and a major US sports league or with the individual sports organization. There are several other criteria that must accompany the petition to establish the qualifications of the athlete or team, which are outlined in the regulations.

P-1 visas may also be issued to members of entertainment groups provided the entertainment group has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. Each member must have been with the group for at least one year and be entering the US solely to perform with the group. In addition, the proposed services must require an internationally recognized entertainment group, and the status is granted on the basis of the group's reputation, not on the basis of individual achievement.

P-2 visas are issued to artists and entertainers who perform individually or as part of a group, pursuant to a reciprocal exchange program between one or more US organizations and one or more such organizations in other countries that provides for the temporary exchange of artists and entertainers.

P-3 visas are available to artists and entertainers individually or as a group who are recognized by various organizations and/or experts as being culturally unique. Culturally unique is defined as a style of artistic expression, methodology, or medium which is unique to a particular nation, society, class, ethnicity, religion, tribe, or other group of persons."

Each of the P categories permits entry to "essential support personnel." An essential support alien is defined as a "highly skilled, essential person" who is an integral part of the performance of the P alien because the alien performs support services which cannot readily be performed by a US worker and which are essential to the success of the performance.

A "P" petition is filed on immigration form I-129, together with the P supplement, and is mailed to the immigration service center office that has jurisdiction over the place of the alien's intended employment in the United States. As with an O visa, consultation with an appropriate labor organization regarding the nature of the work to be done and the alien's qualifications is mandatory before any P petition can be approved except if the petitioner demonstrates that no appropriate labor organization exists. Like the O petition, the consultation is not binding on INS, but will be given considerable weight.

P-1 petitions for individual athletes may be valid for up to five (5) years. P-1 petitions for athletic teams or entertainment groups may be valid for the time needed to complete the competition, event or performance, not to exceed one year. The same applies to P-2 and P-3 petitions. A P-1 athlete may obtain an extension for up to five (5) additional years. Other P aliens may apply for extensions up to one (1) year at a time in order to continue or complete the activity for which they were admitted. Again, as with the O visa, aliens entering the US in P status, whose employment terminates for reasons other than voluntary resignation, must be provided the reasonable cost of return transportation abroad by the employer and/or petitioner.