Minimum Income Requirement for Use in Completing Form I-864
Many foreign nationals come to the U.S. on a temporary basis with no intent to remain permanently. Some are brought by companies for a specific job task by employers seeking to fill specific needs. Others come for pleasure or educational opportunities.
Temporary visitors are issued nonimmigrant visas typically within weeks of the application, unlike permanent resident visa applications that could take years. The visas are valid for a certain period of time as determined by USCIS or the Embassy. Some of the nonimmigrant visas can allow a person to live and reside in the United States for a lengthy or indefinte period of time.
Whenever an alien applies for a nonimmigrant visa at an Embassy or in the United States with Bureau of Citizenship and Immigration Services there is always a rebuttal presumption that the alien has intent to immigrate permanently to the United States . If the Consular Post of the Bureau of Citizenship and Immigration Services believes that the alien has an intent to immigrate to the United States permanently, they will often non issue a nonimmigrant visa.
B-1/B-2 Business Visitor Visas
B-2 Tourist Visa
E-1/E-2 Treaty Trader / Investor Visas
F-1/M-1 Academic & Vocational Student Visas
H-1B Specialty Occupation
H-2B Non-Immigrant
J-1Exchange Trainees
K-1 Fiancee Visa
K-3 Spouse Visa
L-1 Intra Company Transfer
O-1 Non-Immigrant
O-2 Artist / Athlete Staff
O-3 Spouse / Children of O-1 Visa
P-1 Performing Entertainers and Athletes
R-1 Religious Workers Visa
TN: NAFTA Visa
V - Visa
Nurse Visas
Visa Extensions
Visa Waiver Program
B-1/B-2 Business Visitor Visas
Available to aliens for the purpose of engaging in legitimate business activities i.e. conventions, conferences, consultations and other legitimate activities of a commercial or professional nature, but not for the purpose of being employed by or receiving a salary from a U.S. corporation and generally not to perform skilled or unskilled labor.
To qualify as a nonimmigrant visitor for business the applicant must intend to maintain a foreign residence abroad, show sufficient means of support to avoid unlawful employment while in the U.S. and establish that he or she intend to leave the U.S. at the end of the temporary stay.
Permissible Business Non-Employment Activities Include:
Visas are valid for not more than a year and extensions are granted in six-month durations. In practice, a business visitor will be granted only a period of entry necessary to conduct business. Most visas are approved for less than three months, and only in unusual circumstances would a stay of more than six months be granted. This visa is ideal for U.S. companies desiring to bring overseas workers to the U.S. on short notice for brief periods of stays and to assist with important projects.
B-2 Tourist Visas
Visas are generally issued for the purpose of tourism, visiting friends or relatives, health reasons, to participate in conferences, musical or sporting events and other purposes that is not employment related. The visas are usually granted for six months even if the period of stay is less than six months. However under new regulations the period will become 30 days unless the visitor can show a reason for a longer stay. The applicant must show a foreign residence with no intent of abandoning it, a foreign job, significant ties abroad, and sufficient means of support. Nationals of countries that participate in the Visa Waiver Pilot Program may be eligible to come to the U.S. without a Visa but for a period not to exceed 90 days.
Applying for a Visitor Visa
Applicants for visitor visas should generally apply at the American 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.
Required Documentation - Each applicant for a visitor visa must pay a nonrefundable application fee and submit:
Applicants must demonstrate that they are properly classifiable as visitors under U.S. law. Evidence which shows the purpose of the trip, intent to depart the United States , and arrangements made to cover the costs of the trip may be provided. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly.
Persons traveling to the U.S. on business can present a letter from the U.S. business firm indicating the purpose of the trip, thebearer's intended length of stay and the firm's intent to defray travel costs. Persons traveling to the U.S. for pleasure may use letters from relatives or friends in the U.S. whom the applicant plans to visit or confirmation of participation in a planned tour. Persons traveling to the U.S. for medical treatment should have a statement from a doctor or institution concerning proposed medical treatment.
Those applicants who do not have sufficient funds to support themselves while in the U.S. must present convincing evidence that an interested person will provide support. Visitors are not permitted to accept employment during their stay in the U.S. Depending on individual circumstances, applicants may provide other evidence substantiating the trip's purpose and specifying the nature of binding obligations, such as family ties or employment, which would compel their return abroad.
U.S. Port of Entry
Applicants should be aware that a visa does not guarantee entry into the United States . The U.S. Bureau of Citizenship and Immigration Services (USCIS) has authority to deny admission. Also, the period for which the bearer of a visitor visa is authorized to remain in the United States is determined by the USCIS, not the consular officer. At the port of entry, an USCIS official must authorize the traveler's admission to the U.S. At that time the USCIS Form I-94, Record of Arrival-Departure, which notes the length of stay permitted, is validated. Those visitors who wish to stay beyond the time indicated on their Form I-94 must contact the USCIS to request an application to extend status. The decision to grant or deny a request for extension of stay is made solely by the USCIS.
E-1/E-2 Treaty Trader/Investor Visas
Visas are available for aliens from countries that have entered into commercial treaties with the U.S. who wish to enter in order to carry on substantial trade, including trade in services or technology between the U.S. and the foreign state of which the alien is a national.
An alien may also qualify as a treaty investor to develop and direct the operations of an enterprise in which he or she has invested and has an interest of at least 50%, or of an enterprise in which he or she is actively in the process of investing a substantial amount of capital in proportion to the total investment. The investment level is relative to the kind of business. It must be "substantial.and not marginal".
An employee of the treaty trader or investor may also be admitted if their duties are essential to the operation of the enterprise i.e. executives, managers, or supervisors.
The three main types of treaties are treaties of friendship, commerce and navigation; bilateral investment treaties; and free trade agreements such as NAFTA. The treaty trader or investor must, whether an individual, business or employee possess the nationality of the treaty country. Nationals of the treaty country must own 50% of the business in question.
The Visa is initially valid for two years but can be extended indefinitely in increments of not more than five years. The spouse and children are entitled to the same classification but cannot work in the U.S.
New E-3 Visa for Australian Professionals
The United States Congress has created a new visa, the E-3 treaty professional visa for Australian nationals who enter the United States temporarily to work in a specialty occupation.
To be eligible for the E-3 visa, an Australian national must be entering the United States temporarily to work for a U.S. employer in a specialty occupation. The term "specialty occupation" is defined under U.S. law in the context of the H-1B visa program. A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and, at a minimum, the attainment of a bachelor's or higher degree (or its equivalent) in the specialty field. For instance, specialty occupation workers include architects, accountants, engineers, lawyers, physicians, and surgeons (to name a few).
The E-3 visa allows Australian nationals to work for any U.S. employer in a specialty occupation, where this is accompanied by a job offer. For this reason, it is different from the current E-1 and E-2 visas, which require a direct and significant link between the occupation and international trade and investment between the United States and Australia.
The E-3 visa affords entry to the professional worker as well as the worker's spouse and minor children. Significantly, unlike many U.S. non-immigrant visas, the E-3 visa allows spouses to apply for authorization to work in the United States for any U.S. employer.
Australian nationals and their dependents traveling to the United States under E-3 visas will be admitted for up to two years. The E-3 visa may be renewed for two year periods indefinitely.
The E-3 visa has no impact upon the ability of Australians to apply for other visa categories. In addition, current H-1B and E visa holders may apply for an E-3 visa, and E-3 visa holders remain eligible to apply for any other visa.
F-1/M-1 Academic and Vocational Student Visas
Visas are available for students seeking a full course of study at an established school in the U.S. Students have restricted work opportunities. Under very limited circumstances they may qualify for employment on campus and during their studies in curricular practical training as required by the course of study without prior USCIS approval. USCIS approval is required if the student wishes to work off campus and is granted only due to an unforeseen severe economic hardship. After graduation the student may work for up to 1 year in a practical training program that is related to the student's major area of study if approved by USCIS.
H-1B Specialty Occupation
The H-1B Visa program is the most common visa type used by U.S. employers to hire foreign- born professionals on a temporary basis to perform work in "specialty occupations". This program allows U.S. business to recruit and hire the best-qualified candidates from around the world, and compete on a level playing field with foreign companies in such key industries as high-tech, manufacturing, pharmaceuticals, biotechnology, and education.
Our task is to establish that the professional falls within the category of a "specialty occupation" which requires "theoretical and practical application of a body of highly specialized knowledge" and at least a bachelor's degree earned in the United States or the foreign equivalent of a bachelor's degree. The visa is valid for six years but initially granted for three and may be renewed. There is an extension available if the alien has filed for an immigrant visa 365 days before the expiration of the six-year period.
Our office can process H1-B applications for employers thought the U.S. To accommodate those who do not live within our geographic area, we will prepare all necessary documents by communicating with the alien and employer by fax, e-mail, and mail. The alien has the option to file under Premium Processing in which the USCIS will furnish a direct contact at USCIS and a guaranteed quick response at an extra cost to the alien. Regular Processing usually takes several months, this time frame depends upon the current processing times for the USCIS Service Center.
To ensure the fastest approval from the USCIS, our office requires the cooperation from the employers and the aliens. To avoid surprise please note that the USCIS will require proof that the employer has the ability to pay the wage mandated by the Department of Labor, and we will request that the employer furnish us with a copy of the company¿s Federal Income Tax Returns and/or audited financial statements from the previous calendar year.
Employer Documentation Requirements
The employer will be required to provide the following:
The Alien Employee's Documentation Requirements
The alien will be required to provide the following documents:
We can file an H-1B in the U.S. while the alien is in status or at the U.S. Embassy in the alien's home country if the alien has not overstayed for more than 180 days. Moreover, the alien has the option to file under Premium Processing in which the USCIS will furnish us with a response at an extra cost to the alien. Regular Processing usually takes between 3-4 months, however this time frame depends upon the current processing times for the USCIS service center.
"Specialty Occupation" Defined
"Specialty Occupations" are defined as occupations that require:
To establish that the job qualifies as a "specialty occupation" one or more of the following must be met:
Examples are architects, doctors, engineers, lawyers, professors, accountants, teachers (elementary, secondary, colleges, or seminaries), researchers, medical personnel, computer professionals, marketing managers and fashion designers.
Required Credentials
It is not enough to show that the position is a "specialty occupation" The alien must also show that he has the required credentials for the position offered with proof of the one or more of the following:
Employer's Obligations
A U.S. employer must attest to the U.S. Labor Department on a form entitled a Labor Condition Application (LCA) and guarantee the following:
WAGE:
The foreign professional will be paid at or above the rate paid for a similar position at the employer's own offices, or the prevailing wage for that position in the geographic area based on the best available information. The wage is determined by one of five methods. The first four are the best source of date and are accepted by USCIS:
NOTE: The employer is required to provide proof of the ability to pay the required wage by providing copies of past and current tax returns and/or other corporate documents.
Working Conditions:
The foreign professional will not adversely affect the working conditions of U.S. colleagues
No Strike or Lockout at Worksite:
The alien is not being hired to replace others.
Good faith Recruitment Effort was Done:
A good faith effort to recruit U.S. workers at the prevailing wage was made but no one was as qualified as the alien.
Notice of LCA Filing Posted:
The employer is required to keep a public file with:
"H-1B Dependent Employers" Additional Attestations:
Employers who currently have H1-B employees (as defined by regulations) must state that they are not displacing protected U.S. workers and that they have attempted to recruit U.S. workers. Penalties are imposed for violations.
Employers who have 25 or fewer employees and 7 are H1-B non-immigrants are H-1B dependent. If they have 26-50 employees, no more than 12 can be H-1B holders. Employers with 51 or more employees are H-1B dependent if the number of H1-B non-immigrants employed is equal to 15% of the number of full-time employees. Certain H-1B employees are exempt if they possess a master's degree and earn $60,000 per year.
H-1B Job Portability:
The American Competitiveness in the 21st Century Act passed by Congress in 2000 provides for increased portability of H1-B status. Persons previously issued a visa or otherwise provided H1-B status can now accept new employment and start working immediately before and subject to the final approval of the new petition. However if the petition is denied, work authorization ceases. In order to be eligible the individual must have been lawfully admitted to the U.S., the new petition must have been filed before the expiration of the original H1-B and the individual must not have been employed without authorization in the U.S. before the filing of such petition.
Travel Costs Upon Dismissal During H-1B Period:
If an H-1B employee is dismissed before the end of their authorized stay the employed must bear the reasonable cost of returning the alien home. Any dismissal is covered, even one for cause. The exception is when the alien voluntarily quits.
H-2B Non-immigrant - Temporary Nonagricultural Worker
The H-2B nonimmigrant program permits employers of foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. The process requires an approved Labor Certification (see that tab) in which the employers must show that U.S. workers are unavailable to fill the position before the visa will be issued.
There is an annual cap of 66,000 visas per year. The maximum authorized period of stay is one year therefore the job offer must be for less than one year. The visa may be extended for a total of three years. Extension applications require another Labor Certification, and demonstrate that the initial authorization period is insufficient.
Either skilled or unskilled workers may be employed on an H-2B visa. The only workers who are specifically excluded are:
Petitions for H-2B status may be filed by U.S. employers or their agents. U.S. agents must be authorized to file the petition and accept service of process in the U.S. The agent can file petitions for self-employed aliens and function as the employer, multiple employers and act as a representative of the employer and the alien, and cases involving foreign employers.
When the H-2B worker is self-employed, there must be a contract between the agent and the worker specifying the wages and terms and conditions of employment. The agent must also provide a complete itinerary of the planned employment. When numerous employers are involved, the agent must provide the dates of the proposed employment, the name and address of the employers, and the locations where the work will be performed and a contract between the employer and the alien.
When a foreign employer is petitioning for the services of an H-2B worker, the agent must submit the employment contract between the worker and the employer, as well as evidence of the agent's authority to act on behalf of the employer. The most significant restrictions on the H-2B category is the requirement that the need for the foreign worker is temporary and not permanent.
The Department of Labor recognizes four situations in which there is a temporary need for workers: recurring seasonal need, intermittent need, peak-load need, and need based on a one-time occurrence. A labor certification by the Department of Labor (DOL) is required for the INS to issue an H-2B visa. The DOL must determine that there are no unemployed, qualified U.S. workers available for the position in the geographical location of the proposed employment, and that employment of the foreign national will not adversely affect the wages or working conditions of U.S. workers. The DOL will request that the employer conduct a recruitment campaign and forward the report to the DOL. If the DOL is satisfied that there are no qualified persons in the U.S. they will certify the LCA and then the H2-B petition may be sent to USCIS for approval and Consular processing.
Travel Costs Upon Dismissal During H-2B Period:
If an H-2B employee is dismissed before the end of their authorized stay the employed must bear the reasonable cost of returning the alien home. Any dismissal is covered, even one for cause. The exception is when the alien voluntarily quits.
J-1 Exchange Trainees
All J-1s must be sponsored by an exchange visitors' program such as a local, state, or federal government agency, designated by the U.S. Information Agency. J-1 Visas encompass a wide variety of individuals:
Fiancee K-1 Visa
Fiancee (K-1) visa is an non-immigrant visa allowing your Fiancee to enter the United States for the purpose of marriage. This visa is only valid for a limited period of time, during which the marriage must occur.
The K-1 Visa is normally valid for a period of three (3) months. There is no extension of stay allowed. K-1 petition is automatically terminated when the Petitioner dies or voluntarily withdraws the petition.
You are required to submit your Petition for Alien Fiancee (Form I-129F) according to your place of residence, There are four main Service centers in the United States, which handle I-129F application packages.
Those applications are to USCIS Service Centers. Service Centers do not handle walk-in applications or answer questions. Three of the four Service Centers have established special Post Office boxes to receive applications mailed to the Center by applicants or petitioners residing in its service area. The applications and petitions processed by each Service Center are listed on its home page, as are the special Post Office box numbers and zip codes by form type for the Service Centers using them.
Requirements:
1. You must be a U.S. citizen.
2. You have met your Fiancee in person within the previous two years.
3. Both you and your Fiancee are legally free to marry.
4. You meet certain minimum income requirement*.
5. Your Fiancee does not have a criminal record.
6. Your Fiancee has not violated U.S. immigration laws
*NOTE: Normally you will be required to show 125% of the poverty level for your household including your Fiancee and any children. If you do not meet these requirements, you will need a co-sponsor who does meet the guidelines. The co-sponsor also needs to fill out an Affidavit of Support (Form I-134) for your Fiancee and her children.
Minimum Income Requirement for Use in Completing Form I-864
What If a Document Is Not Available? If the documents needed above are not available, you can give CIS the following instead. However, the USCIS may request in writing that you obtain a statement from the appropriate civil authority certifyingthat the needed document is not available. Any evidence submitted must contain enough information, such as a birth date, to establish the event you are trying to prove.
School records A letter from the school authority (preferably from the first school attended), showing the date of admission to the school, child's date or age at that time, place of birth, and the names of the parents.
Census record State or Federal census record showing the name(s), date(s) and place(s) of birth or age(s) of the person(s) listed.
Baptismal certificate A copy, front and back, of the certificate under the seal of the church, synagogue or other religious entity showing where the baptism, dedication or comparable rite occurred, as well as the date and place of the child's birth, date of baptism and names of the child's parents. The baptism must have occurred within two months after the birth of the child.
Affidavits. Written statements sworn to, or affirmed by, two persons who were living at the time and who have personal knowledge of the event (For example, a birth, marriage or death). These persons may be relatives and do not have to be citizens of the United States. Each affidavit should contain the person's full name and address, date and place of birth, and relationship to you and must fully describe the event and explain how he or she acquired knowledge of the event.
Other Documents You Need to Submit With Form I-129F:
NOTE: T this is not a complete list of the supporting documents you are required to submit while filing Petition for Alien Fiancee.
Children of Fiancee K-2 Visa
The K-2 non-immigrant visa allows a child of your Fiancee to enter into the U.S. and await the availability of an immigrant visa.
K-1 children may stay in the U.S. on a K-2 visa for a maximum period of 90 days from the date of entry. If you and your Fiancee do not marry within 90 days, K-1 children must depart the U.S. together with your Fiancee.
Documents needed for K-2 visa:
Generally an interview is required at the American Consulate. Some consulates do not require a child of your Fiancee to attend if s/he is below the age of 14. Many consulates require a child to attend even if s/he is not going to move to the U.S. with K-1 parent immediately, but will follow later.
The cut-off date for issuance of a K2 visa is 1 year from the date of the K-1 visa issuance to the principal alien. K-1 and K-2 visas are valid for one entry into the U.S. at any time within the next six months.
The child of a K-1 principal alien may acquire K-2 status even after the principal alien has married American Citizen Petitioner and acquired lawful permanent resident status in U. S.
K-2 Benefits:
K-3 Spouse Visa
The purpose of the K-3 visa is to reunite families that have been or could be subject to a long period of separation during the process of immigrating to the United States. Holders of the K-3 visas will be able to wait in the U.S. for this process to be completed and obtain a work authorization if they are the beneficiary of an approved I-130 visa petition.
The K category is intended for use by both a spouse of a United States citizen and by the spouse's children. The nonimmigrant visa for the spouse will be called a K3 visa and the visa for the spouse's children will be called a K-4. The K-4 is for children under 21 years of age but they must adjust their status the green card holder before reaching the age of 21.
This visa must be applied for within the U.S. and it will thereafter be forwarded to the Consulate abroad who will contact the spouse, forward additional forms and schedule an interview. Processing times vary from consulate to consulate and can range from 1-5 months. The visa must be used to enter the U.S. within four months from the date of issuance and it is valid for two years.
K-3 spouse visa required documentation:
Fiancee K-1 Visa and Spouse K-3 Visa Compared
Many are puzzled - Should I use K-1 visa and marry my lone one in the United States or marry my loved one in her home country and use K-3 visa (spousal visa)?
Every case is unique, so it is impossible to provide a blanket answer that would apply in every situation.
K-1 Visa Considerations
1. You don't need to marry immediately in your Fiance(e)'s country or the U.S.
2. You bring your loved one to the U.S. as your Fiancee, and both of you have 90 days to get married. This allows you both to get to know each other better and make a decision about whether you want to spend the rest of your lives together.
3. You deal nearly exclusively with the U.S. immigration system and U.S. immigration officials here, in the United States.
4. You avoid dealing with local foreign procedures of marriage in a foreign country in a foreign language.
5. Your fiancee has a chance to see the country and get familiar with U.S. customs and language before the marriage.
6. Close family and friends will NOT see your Fiance(e) get married in the U.S. unless they could manage to obtain another type of visa such as a tourist visa, which is hard to obtain.
K-3 Visa Considerations
1. You are both together immediately.
2. Your wife's family and friends are able to attend your wedding without any delay.
3. Local marriage in a foreign country can sometimes be accomplished in 10 days, or less.
4. Depending on the U.S. Consulate, the process could take much less time.
5. Since with a Spousal visa your wife gains U.S. legal residency immediately, future immigration work is substantially reduced. There is no need to file for the Adjustment of Status Application and wait for months during which time your wife cannot travel freely without obtaining travel parole every time she travels outside of the U.S.
Extensive supporting documentation is usually necessary of a U.S. Citizen to get married in a foreign country. The K-3 is a two-step process. First, you are required to submit a package for the Form I-130. Upon USCIS Notice of Action, you would need to send the I-129F Package. It takes time and a lot of patience from both of you.
This process is very document-sensitive which means that if you are missing a document, you may have to fly back to the U.S. in order to obtain a necessary document before process can be completed. All your documents must be translated into the native language of that country where you are planning to get married. The translation much be certified with attached apostle. You might end up with more expenses for the marriage itself and Embassy visa processing charges and fees.
Can a B-2 Tourist Visa be used in lieu of the K-1 visa?
A Visa is permission to apply to enter the United States. Foreign citizens must apply for a visa at an American embassy or Consulate abroad, when desiring to travel to the United States. A consular officer decides whether you are qualified for a visa.
In adjudicating visa applications, the Consul at the U.S. Embassy or Consulate is guided by U.S. laws and regulations and not laws of your Fiancee home country.
U.S. immigration law places the burden of proof on the visa applicant to show that he or she is not planning to immigrate to the United States by using a tourist visa. In other words, each non-immigrant visa applicant must prove to the Consul's satisfaction that s/he will NOT travel to the U.S. in order to reside there permanently. Each applicant must demonstrate that s/he is traveling to the U.S. for ONLY a temporary stay and has strong ties to home country that will compel him/her to return home.
Documents that provide evidence of the applicant's social, economic, and/or family ties to her/his home country, as well as correspondence from relatives or business associates you plan to visit, may facilitate the consular officer's decision.
Some examples of documents that may be helpful include:
L-1 Intra Company Transfer
The L-1 intra-company transferee visa is available to aliens who have worked abroad for one continuous year within the preceding three years in an executive, managerial, or specialized knowledge capacity who are being transferred temporarily to the U.S. to work in a similar capacity for the parent, branch, subsidiary, or affiliate of the same organization. Evidence of the qualifying relationship, proof of employment abroad and a detailed description of the job duties, qualifications and requirements will be required by USCIS to approve the petition. The spouse and children under 21 are allowed to accompany the L-1 visa holder during the period of the transferee status and can be employed.
"Manager" Defined:
"Executive Capacity" Defined:
"Specialized Knowledge" Defined:
Special knowledge is knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application to international markets, or an advanced level of knowledge or expertise in the organization's process and procedures.
Adjustment to Permanent Residence
In certain circumstances, it may be possible to convert the L-1 visa for executives and managers to lawful permanent residence status. However, the applicant must initially show that they intend to depart the U.S. when the stay is over.
Time Limitation
Individual petitions may be granted for up to three years, with a possible extension of two years for all L's and another two years beyond that for all executives and managers.
Business Abroad Must Continue
The petitioner must be doing business in the U.S. and at least one other country for the duration of the stay. Both the U.S. and the foreign company must be active.
New Businesses
Persons coming to open up a new office in the U.S. will only be granted a one-year stay in the US. The USCIS also typically requires additional information about the plans for the new office such as proof that office space has been obtained, a business plan has been developed, the applicant has had the appropriate experience with the foreign company and that the foreign company will remain in existence during the full period of the applicant's transfer to the U.S. If the company wants to have the L-1 visa extended beyond the initial year, it will have to demonstrate that it has proceeded with the plans outlined in the initial petition.
The USCIS will scrutinize cases where the transferred employee also has an ownership interest in the company, since the USCIS may not believe the owner intends to ever leave the U.S. The U.S. employer will need to show that the firm's need for the transferee is not indefinite and that the transferee's foreign business interests are a strong lure for the person to return home upon the expiration of the transferee's stay in the U.S.
Required Documentation:
A U.S. employer or foreign employer may file the petition, but a foreign employer must have a legal business entity in the U.S. The petition must be filed with:
If the alien is coming to the U.S. to open a new office, the petition must include evidence the business entity is in the U.S. and;
Blanket Petitions
In the event a company wishes to send a large number of applicants to the U.S. there is a procedure available to reduce USCIS filings. To qualify the company must meet the following requirements:
O-1 Extraordiary Ability Aliens
The O-1 nonimmigrant visa category is for those with an extraordinary ability in the arts, athletics, sciences, education, business, or the motion picture or television industry and, they are coming to the United States to perform temporary services relating to an event or events. It is a useful and flexible alternative to the H-1B program, because there is no cap on visa numbers.
An O-1 visa may be valid for the period necessary to accomplish the event or activity, up to three (3) years initially. It may be renewed year by year for the duration of the employment situation. It also includes short vacations, promotional appearances and stopovers, which are incidental and/or related to the event.
Our office can process O visa applications for employers thought the U.S. To accommodate those who do not live within our geographic area, we will prepare all necessary documents by communicating with the alien and employer by fax, e-mail, and mail.
We will need the following documents from the alien:
We can file an O in the U.S. while the alien is in status or at the U.S. Embassy in the alien¿s home country if the alien has not overstayed for more than 180 days. The alien has the option to file under Premium Processing in which the USCIS will furnish a direct contact at USCIS and a guaranteed quick a response at an extra cost to the alien. Regular Processing usually takes several months, this time frame depends upon the current processing times for the USCIS service center.
Extraordinary Defined:
"Extraordinary ability" means that the person has reached a level of expertise or skill indicating that he/she is one of a small percentage who have risen to the top of his/her field of endeavor. This must be demonstrated by a showing of sustained national or international acclaim. Artists and entertainers in the television and motion picture industry are subject to a lesser standard, as they must show a demonstrated record of extraordinary achievement.
The achievements of all types must be proven through extensive documentation.
A. Scientists, Educators, Business Persons and Athletes:
B. Artists and Entertainers (Except Those Affiliated With Motion Picture or Television Productions):
''Arts'' is defined as "any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts and performing arts." The term includes those who not only perform other essential technical or creative personnel such as, but not limited to, musicians, directors, set designers, lighting designers, sound designers, choreographers, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, stage technicians and animal trainers. The O-1 petition in the arts must establish that the artist meets the standard of distinction and prominence in his or her field either by showing that the beneficiary has been nominated or received a significant national or internationally award or prize or by a combination of three or more of the following:
C. Artists and Entertainers Entering in Connection With Motion Picture or Television Production
Individuals in this industry are held to a slightly different standard than others applying for an O-1 visa. They must document "extraordinary achievement".
Extraordinary Achievement Defined:
This is a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable or leading in the industry. A record of extraordinary achievement is demonstrated by similar evidence as listed in (B) above, however the regulations do not provide for the submission of other comparable evidence..
Consultation Requirement:
The O-1 petitions cannot be approved unless the employer or agent has obtained a consultation with a peer group in a labor and/or a management organization, if one exists in the area of the alien's ability. Except in emergency situations the consultation must be in the form of an advisory opinion regarding the nature of the work to be done and the alien's qualifications. In an emergent situation the USCIS may contact a peer group directly for a consultation.
A spouse and unmarried minor children of a foreigner who hold an O-1 visa are eligible for O-3 visas, which permit them to travel in and out and reside and study while in the United States, but not accept employment, during the time period of the principal's O-1 Visa. All O Visa beneficiaries, whether principals or supporting personnel, must maintain a residence abroad that he or she does not intend to abandon.
P-1 Athletes and Entertainment Groups
P-1 visas are generally made available to internationally known athletes, individuals or as part of a group or team, and entertainment groups (not individuals in the group). P visas are more appropriate for group artists entering the U.S. for a limited period of time. P visas are generally easier to obtain than O visas for athletes. The visas for athletic teams and entertainment groups may be valid for the period necessary to accomplish the event or activity, not to exceed one year. They may be renewed thereafter year by year. Visas for individual athletes may be valid for up to five years, with one five-year extension. The visa allows short vacations and promotional appearances and stopovers, which are incidental and/or related to the event admitted for.
P-1 Athletes
Individual athletes, athletic teams and entertainment groups generally must meet the standard of international recognition. This is defined as 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. This is an easier standard than the O visa, which require "sustained or international acclaim." The P athlete may show international recognition based on their own reputation and achievements as individuals. Teams must be recognized internationally as outstanding in the discipline. Both must be coming to perform services that require such recognition.
Documentation Requirements:
Contracts must be provided with the petition if normally required and documentation of at least two of the following:
P-1 Entertainers and Performing Groups
P-1 classification can be granted to members of entertainment groups that have been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. Each individual must have a sustained and substantial relationship with the group (generally one-year). The group must be coming to the U.S. to undertake a specific, pre-arranged activity or group of activities, such as a concert or entertainment tour. Such activity could include short vacations, promotional appearances for the petitioning employer relating to the event or performance and stopovers which are incidental and/or related to the activity. An entertainment event could include an entire season of performances. A group of related activities will also be considered an event.
Documentation Requirements:
The USCIS may waive the requirement of international recognition for entertainment groups recognized nationally as outstanding in their discipline for a sustained and substantial period of time, ''in consideration of special circumstances.'' In addition, only seventy-five percent of the group must have had a sustained relationship with the group for at least a year. This is also subject to a waiver in emergent situations.
P-1 Circus Personnel
The P petitions cannot be approved unless the employer or agent has obtained a consultation with an appropriate labor organization, if one exists, in the area of the alien or the groups ability and achievements in the field of endeavor. The group must comment on whether the alien or the group is internationally recognized, and state whether the services to be performed are appropriate to an internationally recognized athlete or entertainment group. Except in emergency situations the consultation must be in the form of an advisory opinion containing a specific statement of facts supporting its conclusion. In an emergent situation the USCIS may contact the labor organization directly.
R Religious Workers
The R visas allow individuals engaged in a wide range of religious occupations to enter the U.S. to perform services related to their religious calling and receive compensation for their work. The visa is initially valid for three years and allows for a two-year extension. Thereafter the religious worker must leave the U.S. before a new visa application can be made. This category is subject to careful scrutiny by USCIS due to its increased use and the potential for fraud. Many religious workers come to the U.S. as R-1 nonimmigrant. After serving for two years in a full time paid religious position they are eligible to petition for permanent residency but are then subject to numerical limitations (see employment based visa fourth preference).
The applicant must have been a member of a religious denomination having a bona fide nonprofit religious organization in the U.S. and have been carrying on religious work (not volunteer work) continuously, either abroad or in the US for two years immediately prior to the filing of the petition. The religious worker must be coming to the U.S. solely for the purpose of:
Documentation Requirements:
A written statement from an authorized official of the religious organization that will be employing the alien establishing among other things that:
NAFTA Visas: VISAS for Canadians and Mexicans
On January 1, 1994, the United States, Canada and Mexico entered into the North America Free Trade Agreement (NAFTA), which allows for expedited admission of Professionals from Canada and Mexico for business purposes into the U.S. in a nonimmigrant capacity. To be eligible the U.S. employment must be in a profession listed in the NAFTA agreement and the employee must have the required credentials. TN status is not available for self-employed professionals. The maximum period of initial stay is one year with unlimited one-year extensions.
The major benefit for Canadian Professionals is that they are no longer subject to the numerical limitations of the H-1B. They are eligible for streamlined application processing at the border, with no limit on the number of visa extensions or reentries into the U.S. Nonimmigrant intent is still a consideration at the borders and can be grounds for entry refusal.
Mexican Professionals applying for TN status must have their employer file a petition for Nonimmigrant Worker and a Labor Certification as needed for the H-1B. The benefits of the NAFTA visa is that after the H-1B cap is reached, there are an additional 5,500 visas available for Mexicans. In addition, Mexicans can extend their stay in the U.S. beyond the H-1B six-year cap. Requirements for admission and authorized duration of stay vary for each of the following categories:
Documentation Requirements:
V Visas
The V visa creates a new temporary visa for spouses and minor children of legal permanent residents awaiting an immigrant visa outside the U.S. for three or more years and grants a work authorization in the United States. Requirements include: The Lawful Permanent Resident filed an immigrant visa petition for his or her spouse on or before December 21, 2000; and, The spouse has waited three years since the filing of the petition and has not been scheduled for an immigrant visa interview. The spouse may be waiting either for USCIS approval of the petition or, if the petition was approved by USCIS, for availability of a visa number in order to complete immigrant visa processing .
Nurse Visas
The US is experiencing a severe shortage of foreign nurses. Limitations imposed by current US immigration laws make it difficult for hospitals in the US to fully draw on the supply of available foreign nurses. However, recent changes have made the process easier and we expect more reform in the future.
Temporary Nonimmigrant Visas for RN's
1. H-1C
This category is reserved for RN's but only hospitals in undeserved areas that have received attestation from the Department of Labor are able to file. There are currently less than 15 hospitals in the US that have received this approval. In addition there are only 500 visas available.
2. TN
TN visas are available for professionals from of Mexico and Canada. RN 's qualify for TN visas.
Canadians require an offer of employment from a U.S. employer for a period not to exceed one- year, a licensed in Canada and in the state of intended employment, proof of Canadian citizenship, and a small fee to enter the U.S. Mexicans require a more complex labor certification.
3. H-1B
This visa is reserved for foreign workers in a specialty occupation. The H1-B requires a bachelors degree. Most nursing jobs in the US do not. The H-1B status is not available for RN positions that require only a state license and not a bachelors degree. However, where a facility can justify that a four-year degree (or equivalent) is the minimum entry requirement for a job, such an RN may be granted an H-1B visa. A ISCIS 2002 Memo explains the requirement for foreign nurses to obtain an H-1B and lists various nursing occupations that may qualify.
Immigrant Visas for RN's
Immigrant visas are difficult to obtain for a foreign nurse but they are available. For a RN to be eligible the RN must have a RN license and a diploma from a nursing school in her country; along with a full and unrestricted license to practice professional nursing in the state of intended employment, or a certification that she has passed the examination given by the Commission on Graduates of Foreign Nursing Schools (CGFNS), or evidence that she has passed the NCLEX- RN licensing examination but cannot obtain a license because she lacks a social security number.
In addition the RN must obtain from the CGNFS a visa screen certificate which ensures the RN is proficient in English (unless the nurse was educated in an English-speaking country (U.S., Australia, New Zealand, Ireland, United Kingdom or Canada (all provinces except Quebec), she must obtain a certain score on tests in written and spoken English administered by TOEFL (Test Of English As A Foreign Language), IELTS (International English Language Testing Service) or the TOEIC (Test of English in International Communications. The MELAB (Michigan English Language Assessment Battery) is no longer being offered to foreign health care workers but may be sent for visa screen purposes if the RN registered before 11/27/02.). The CGNFS will also ensure that the RN's education, training, and licensure abroad are equivalent to that required for licensure as a nurse in the US. (The visa screen requirement is waived for temporary immigrants until 7/25/04 when a new regulations requiring the visa screen for everyone will take effect).The following states require that foreign nurses pass the CGFNS examination before taking the state RN licensing (NCLEX) examination: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Vermont, Virginia, Washington, West Virginia and Wyoming.
The CGFNS test is administered abroad. However the NCLEX exam is currently only administered in US, Guam, American Samoa, Puerto Rico, the Northern Mariana Islands and the US Virgin Islands. The test will not be administered outside the US until after 2005.
Therefore, it is currently necessary for the RN to enter the US as a visitor to take this exam.
While these visas require a great deal of work on behalf of the applicant they are available without the requirement of a labor certification (except for Mexicans under TN). Our firm is capable of steering the applicant thought the application process and addressing any issues that may develop during the processing of the visa. Due to the severe shortage of RN's in the U.S. we expect to see reforms from Congress to help alleviate the shortage.
I-94 Extensions
The I-94 is a card given to non-immigrant aliens upon arrival in the U.S.. The USCIS inspector will stamp it with a date that tells when the alien must leave the U.S. It is possible to ask the USCIS for more time in the U.S. The application must be submitted at least 45 days prior to the expiration date. If the I-94 is not extended and the alien does not leave, then the three or ten year bars to reentry may begin to run.
Visa Waiver Program
Travelers coming to the U.S. for tourism or business for 90 days or less from qualified countries may be eligible to visit the U.S. without a visa. Currently, 28 countries participate in the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom and Uruguay. Visitors entering on the Visa Waiver Program cannot work or study while in the U.S. and cannot stay longer than 90 days or change their status to another category.
On June 26, after many postponements, persons visiting the U.S. on the Visa Waiver Program will be required to present Machine-Readable Passports in order to enter the U.S. Machine-readable passports include two optical-character, typeface lines at the bottom of the biographic page of the passport that, when read, deters fraud and helps confirm the passport holder's identity quickly.
Visa Waiver travelers who are not in possession of machine-readable passport may also apply for a nonimmigrant visa at a U.S. embassy or consulate abroad if seeking entry for business or tourist visits to the United States. The machine-readable passport requirements do not affect the separate deadline requiring Visa Waiver Program country passports issued on or after October 26, 2005, to contain biometrics in order to be used for visa-free travel to the United States.
Even if you are a national of a country that participates in the U.S. VWP you will still need a physical visa if:
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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