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Handbook of Immigration Law - Chapter 1 - Nonimmigrant Visas
by Mark A. Ivener

INTRODUCTION

    When citizens of another country seek temporary entry into the United States to accomplish a specific task, they require a temporary or nonimmigrant visa. Procedures and rules have been established by the United States government high facilitate temporary entry of foreign persons for employment while protecting border security, indigenous labor, and permanent employment. These rules apply to all foreign nationals, including foreign nationals, seeking classification as Temporary Visitors for Business, as well as those seeking permission to work in the United States. This chapter will cover general information regarding nonimmigrant visas, and the B-1 Nonimmigrant Visa Category for Business Visitors. The end of this chapter, and each of the following chapters regarding various categories of nonimmigrant visas, will include a complete sample case study which illustrates all governmental requirements in obtaining U.S. nonimmigrant visas.

  1. BUSINESS TRAVEL VISA CATEGORIES
  2. Business travel has been divided into the following nonimmigrant visa categories:

    1. B-1 Visas: Business Visitors
    2. E-1 and E-2 Visas: Treaty Traders and Investors
    3. H-1 Visas:Professionals in Specialty Occupations
    4. H-2 and H-3 Visas: Temporary Workers and Trainees
    5. J-1 Visas: Exchange Trainees
    6. TN Visas:Canadian and Mexican Professionals and Consultants
    7. L-1 Visas:Intracompany Transferees
    8. O Visas: Aliens of Extraordinary Ability
    9. P Visas: Performing Artists and Athletes
    10. R Visas: Religious Workers

  3. VISA REQUIREMENTS
    1. E, B, and R visa applications are processed by U.S. Consulates. TN, L, B and R visas for Canadians are adjudicated by INS at international airports in Canada or ports of entry. H, L, O, P and TN for Mexicans visa petitions are processed by the U.S. Immigration and Naturalization Service (INS). H-1B and H-2 visas also require involvement of the U.S. Department of Labor to ensure that the U.S. labor force will not be adversely effected by issuance of the visa.

    2. Proof
    3. To receive any type of nonimmigrant visa, you must demonstrate the following:

      1. that your stay is temporary;
      2. that you have sufficient funds to support yourself while visiting the United States (unless the nonimmigrant visa permits you to work while in the United States); and
      3. for nonimmigrant visas other than E, H-1B, or L visas, that you will retain your foreign national, residence.

      You should present documents showing your permanent ties to your country such as a job to return to, a bank account, home ownership, or family ties. You can prove your intentions by supplying, for example, a letter from your company to show that your stay is temporary, a copy of a bank statement or your bank book to show that you have sufficient funds, and a copy of a deed or lease from your landlord proving that you have a residence in your country, The requirement that you retain your foreign residence is applied differently according to the type of visa for which you apply. You must show that you have a residence in your country that you have no intention of abandoning when you apply for a B-1, H-2, H-3, P, or R visa. When applying for an E, H 1B, L or O visa, you need only state that you intend to leave the United States when your visa expires.

    4. Conditions and Restrictions
    5. When you receive a nonimmigrant visa from a U.S. Consulate, they place a visa stamp in you valid passport. This stamp specifies the type of nonimmigrant visa granted, the length of time for which the visa is valid, and the number of times you may use the visa to enter the United States. For example, an E-2 visa which is valid for five years with multiple entries will allow you to enter and lease the United States as many times as you desire during the five year period, subject to inspections by an Immigration Officer at the U.S. border or port of entry (e.g. airport terminal). Each time you present yourself at an airport or port of entry in the United States, you will be inspected by an Immigration Officer. The officer will determine the following:

      1. whether or not you are an intending immigrant;
      2. whether you are excludable from the United States;
      3. the temporary period for which you will be allowed to stay in the United States. This time period does not necessarily coincide with the time allowed on the visa itself, and it quite often much shorter. The Immigration Officers writes the period of time granted for that particular trip to the United States on a Form I-94 Departure Record which is given to you upon entry into the United States. You keep the Form I-94 in your possession (generally stapled in you passport) while you are in the United States, and surrender it when you leave the country.

      Once you enter the United States, you may pursue your desired activities as long as you respect the limitations of your visa. If you violate your status by engaging in activities not authorized by your visa, or by staying in the United States beyond the period specified on your Form I-94 Departure Record, you may be deported. For example, if you enter the United States on an H-1B Specialty Occupation work visa for Company X for one year, and six months later, you begin to work for Company Y without prior INS approval for the change of employer, you violated your status and are subject to deportation.

    6. Changing Your Status
    7. A foreign national who enters the United States under any type of nonimmigrant classification discussed in this book can change his/her status to another type of nonimmigrant status by making proper application to the INS. As well, the amount of time you are allowed to stay in the United States may be increased if you can justify the need for an extension to the INS. In order to apply for an extension of stay in the United States, you must apply within one month before the end of your initial term.

  4. SOME COMMON PROBLEMS
  5. The most common problem people encounter when applying for a business visa for the United States is ignorance of the law relating to visa requirement, not knowing what alternatives are available, and not supplying the proper documentation to support their application.

    1. Visa Requirements
    2. The law spells out which government agency or department is responsible for processing which visas. Make sure you apply to the right one to avoid having your application delayed or even denied.

    3. Alternatives
    4. You can save yourself a lot of time and trouble if you are familiar with the types of visas available, and apply for the one that most appropriately fits the purpose of your business travel. For example, if you quality to enter the United States with an E visa based on a new business, you are allowed to stay on your initial approval for five years. If you were unaware that an E visa was available to you, and instead entered on a L visa, your initial approval would be for only one year.


    About The Author

    Mark Ivener has been practicing law in Los Angeles for 30 years. He has lectured on U.S. immigration law for the World Trade Institute in New York, Houston, Chicago, and San Francisco. He has also lectured for the International Bar Association in Munich, Madrid, and New York. Mr. Ivener has participated in many immigration seminars for the Law Societies of British Columbia and Alberta and the American Immigration Lawyers Association.

    He has authored the books, Handbook of Immigration Law, Volumes I and II [1980; 2nd edition, 1982; and 3rd edition, 1986; Online edition, 1999]; Doing Business in the U.S.A. Under Free Trade [1989; 2nd edition, 1990]; Get The Right Visa [1992; 2nd edition 1994]; A Complete Guide To Getting An American Visa (in Japanese) 1993; 2nd edition 1994; 3rd edition 1997]; and Have You Thought About Immigrating To The U.S.? (in Spanish) [1995]. He has also written many articles on immigration law which have appeared in the International Law Journal, the Canadian-American Bar Association Newsletter, Business and the Law and World Trade Trends.

    Mr. Ivener is a founding member of IMMLAW, The National Consortium of Immigration Law Firms. Also, Mr. Ivener is listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers.

     



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