Non Immigrant Visas

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STUDENT VISAS

Foreign students are an economic asset to private education and introduce a welcome diversity to the lives of fellow students.  A student is a temporary non-immigrant and is issued one of three types of visas for the purpose of coming to the United States to pursue a course of study.  Students pursuing academic degrees generally have F-1 visas.  Those enrolled in vocational institutions have M-1 visas.  There are also special exchange visitor programs available which involve study.  These students receive J-1 visas.  Spouses and children of F-1, M-1 and J-1 students may be eligible for F-2, M-2 or J-2 visas and entry for the same period of time.

Often there is a two year home resident requirement imposed on anyone who has been in the U.S. on a J-1 visa.  This means that absent a waiver at the end of the exchange visitor program, the J-1 student must return to his or her home country for at least two years.  Eligibility for the waiver is a very complex issue in the law.

To obtain a student visa, you must first be accepted by an accredited institution, obtain an I-20AB from the institution and document your financial ability to attend school without employment.  There is a relatively complex set of rules which apply only to students and these rules must be closely adhered to in order to maintain your status.  Usually your foreign student advisor at school can provide assistance.

Admissions to the United States as an F-1 student will generally be for the period during which you are pursuing a full course of study in any education al program and any periods of authorized practical training, plus 60 days within which to depart the United States.

Your foreign student advisor has the authority to approve periods of practical training.  Most students are eligible for a period of 12 months of post-graduate practical training.

An M-1 student will be admitted to the U.S. for the period of time necessary to complete the course of study plus 30 days to depart the U.S. or for one year, whichever is less.  Change of schools or education objectives, employment and practical training are more restrictive for M-1 students.

Readmission to the U.S. requires a valid visa.  If your visa has expired or you do not have a student visa in your passport, you must apply at the U.S. Consulate prior to returning to the U.S.  There is an exception if you are returning to the U.S. after an absence of less than 30 days from a contiguous territory and you possess a valid passport and visa.

RELIGIOIUS WORKER VISAS (R-1)

The R-1 nonimmigrant category is provided at INA §101(a)(15)(R), 8 CFR §214.2(r), 22 CFR §41.58(a), and 9 FAM §41.58 (U.S. Department of State Foreign Affairs Manual (FAM)).

The R-1 nonimmigrant category allows individuals engaged in a broad range of religious occupations to enter the United States temporarily to perform services related to their religious calling or vocation and receive direct compensation for their work.

Eligibility for temporary religious worker status requires the following:

Two years  membership. For the two years immediately preceding the time of application for admission, the applicant must have been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States. INA §101(a)(15)(R); 22 CFR §41.58(a); 9 FAM §41.58, Note 8.

Seeks to enter the United States for a period not to exceed five years for any of the following purposes:

-    solely for the purpose of carrying on the vocation of a minister of that religious denomination, to work for the organization in a professional capacity in a religious vocation or occupation at the request of the organization, or

-     to work for the organization (or other bona fide organization affiliated with the religious denomination and is exempt from taxation as an organization described in IRC §501(c)(3)) in a religious vocation or occupation at the request of the organization. INA §101(a)(15)(R), (a)(27)(C)(ii).

In some circumstances, a B-1 business visitor visa may be deemed more appropriate for certain “members of religious and charitable” organizations. Examples of such include religious ministers who are on evangelical tour or who are exchanging pulpits with U.S. counterparts, certain missionary workers, or participants in certain voluntary service programs

BUSINESS and VISITOR (B-1 and B-2) VISAS

Generally, a citizen of a foreign country who wishes to enter the United States must either be from a country eligible under the “visa waiver program” (see below) or first obtain a nonimmigrant visa for a temporary stay.  The “B” visitor visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1), or for pleasure or medical treatment (B-2). Persons planning to travel to the U.S. for a different purpose such as students, temporary workers, crewmen, journalists, etc., must apply for a different visa in the appropriate category.

Nationality Act. The presumption in the law is that every visa applicant is an intending immigrant. Therefore, applicants for visitor visas must overcome this presumption by demonstrating that: That the purpose of their trip is to enter the U.S. for business, pleasure, or medical treatment; That they plan to remain for a specific, limited period; and That they have a residence outside the U.S. as well as other binding ties which will insure their return abroad at the end of the visit.

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.

Each applicant for a visitor visa must submit:

An application Form OF-156, completed and signed. Blank forms are available without charge at all U.S. consular offices;

2) A passport valid for travel to the United States and with a validity date at least six months beyond the applicant’s intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must make an application;

One photograph 1 and 1/2 inches square (37×37 mm) for each applicant aged 16 and older, showing full face, without head covering, against a light background.

Additionally, 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 should be provided.  For example, persons traveling to the U.S. on business can present a letter from the U.S. business firm indicating the purpose of the trip, the bearer’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.

Unless previously canceled, a visa is valid until its expiration date. Therefore, if the foreign-born individual has a valid U.S. visitor visa in an expired passport, he or she may use it along with a new valid passport for travel and admission to the United States.  A non-refundable $45.00 application fee is collected at posts, which issue machine-readable visas. If there is a fee for issuance of the visa, it is equal as nearly as possible to the fee charged to United States citizens by the applicant’s country of nationality.

Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the United States.  If the consular officer should find it necessary to deny the issuance of a visitor visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal. In the absence of new evidence, consular officers are not obliged to re-examine such cases.

However, eligibility in the visa waiver program or a visa does not guarantee entry into the United States. The Immigration and Naturalization Service (INS) has authority to deny admission.  Also, the period for which the alien is authorized to remain in the United States is determined by the INS officer at the time of inspection at the airport or border and not the consular officer when the visa is issued.  The Form I-94, Record of Arrival-Departure, which is issued to the person when he or she is inspected by the INS or U.S. customs official when they enter the U.S. states the length of time the alien is permitted to remain in the United States on that trip.  Although frequently assumed, it is not the visa in the passport that determines the period of time the alien is actually allowed to legally stay in the United States.  Of course, different visa categories allow for different maximum period of legal stay (e.g.:  B-2 tourist can only get a maximum stay of six months but L-1 intracompany transferees should be able to obtain up to three years at the time of their first entry).  Those visitors who wish to stay beyond the time indicated on their Form I-94 may be eligible to apply for an extension of stay prior to the expiration date.  There are serious penalties for overstay the lawful stay which include automatic visa cancellation and the possibility of being barred from legally returning to the United States for three years (for an unlawful overstay of 180 day to 364 days) or ten years (for an unlawful overstay of over one year).

TREATY TRADER AND TREATY INVESTOR (E-1 and E-2) VISAS

The treaty trader (E-1) and treaty investor (E-2) visas are available to nationals of certain nations with which the United States has treaties of commerce. Not every treaty of commerce provides for both visas and for some countries only one type of visa is available.  Nearly all the European nations, several Asian and South American nations and Mexico and Canada have such treaties with the U.S.  Since there any many treaties nearing ratification, it is best to contact our office for current treaty status.

Common to both visas is the almost unlimited length of time a person might be allowed to remain in the United States. Visas are initially granted for one year and can be renewed for periods not exceeding two years. As long as the treaty remains in effect and the trader or investor meets the current requirements for the visas he can maintain his status and continue to obtain extensions of his stay. Treaty traders and treaty investors are allowed to work, but only for the qualifying business. Spouses and children under 21 years enjoy the same benefits as the trader or investor, except for the fact that they are not allowed to work.

The basic requirement for the treaty trader visas is that the individual engaged in the trade must be a national of the country with which the United States has the appropriate treaty. The individual’s activities in the United States must constitute “trade” of a substantial nature which is international. The “trade” must be principally between the United States and the foreign state of which the individual is a national. Trade not only includes the import and export of goods, but also of services such as engineering, banking, or designing computer software systems.

Ordinarily, the treaty trader is an individual. However, employees of qualified treaty trader individuals or firms may also obtain treaty trader status. To be eligible the employee must be engaged in supervisory or executive duties or have specific qualifications that make the employee’s services essential. The employee must be of the same nationality as the primary treaty trader or company.  The nationality of a company is established by a set of complex rules and guidelines. Generally, if 51% of the company is owned by nationals of the treaty country, who are not permanent residents of the United States, the company will qualify.

A treaty investor, like the treaty traders, must be a national of the country with which the United States has the appropriate treaty. If a company is the investor, the company must be of the nationality of the treaty country. The nationality of the company is established by the same rules as for treaty traders.  The individual must have invested or be in the process of investing a substantial amount of “at risk” capital in an enterprise in the United States. The investment may not be passive, such as bonds, stocks and treasury notes. The investment must be in an enterprise. What constitutes a substantial amount depends on the nature of the business. The amount invested is compared to either the total value of the enterprise or the amount normally considered necessary to establish the particular enterprise. Occasionally the dollar amount of the investment alone will be so great as to afford treaty investor status.

The treaty investor is allowed to come to the United States to develop and direct the enterprise. To meet this requirement the investor must have an active role in managing the business. Thus, ownership of stock or an investment in unimproved land (assuming no development is contemplated) would not qualify. However, the E-2 investor does not have to be involved in the day-to-day affairs of the enterprise.  As with any temporary visa, the treaty trader and treaty investor must have the intent to depart from the United States once their status has ended.

NONIMMIGRANT “WORKING” VISAS

Specialty Occupation (H-1B) Visa

Professional positions (i.e. computer specialist, engineers, health professionals, etc…) can be filled for a temporary period by a person who has a bachelor degree or the equivalent experience.  Visas are issued for 3 years and can be extended for an additional 3 years for a maximum period of 6 years.  In some situations H-1B status can be extended beyond 6 years in one-year increments.  The Citizenship & Immigration Service reviews the petition from the sponsoring employer after a Labor Condition Application has been approved by the Department of Labor.  In the Labor Condition Application the employer indicates that it has met the conditions of offering the prevailing wage and working conditions.  A limit of 65,000 individuals can apply for the H-1B visa each year.  This limit does not include individuals who have already obtained H-1B status and are extending their stay in the United States or changing employers.  Spouses and unmarried children under 21 years of age of the principal applicant may be granted H-4 visas to remain in the United States.  Due to the high demand for this visa category it is important that application are prepared early in the fiscal year (October through April).  If the limit on visas is close to being reached, alternative working visas must be considered.  A professional who is already in H-1 status can usually begin working at a new sponsoring employer as soon as a new petition has been filed with the Citizenship & Immigration Service.

Intracompany Transferee (L-1) Visas

Multinational businesses can transfer an executive, manager or employee with specialized knowledge to a parent, branch, subsidiary or affiliate office in the United States.   These definitions are very precise and require analysis of the ownership of the American and foreign company as well as the past and future responsibilities of the person being transferred.  The American and foreign company must be actively engaged in business.  There are provisions in the law to allow an individual to be transferred to open a new office in the United States providing certain conditions are met.  The person being transferred to the United States must have been continuously employed abroad by the a qualifying foreign employer for one year within the three years preceding the time the visa petition is submitted.  Initial petitions may be granted for a 3 year period and renewed in 2 year increments up to the maximum stay of 7 years for an executive or manager; 5 years for an employee with specialized knowledge.  Petitions for transfers to new offices are approved for a one-year period.  Spouses and unmarried children under 21 years of age of the principal may be granted L-2 visas to remain in the United States.  If structured carefully, the intracompany transferee petition may allow easy transition to permanent resident status.

Aliens of Exceptional Ability in the Arts, Sciences and Business (O-1)

The O-1 category requires that “extraordinary ability” be demonstrated by sustained national or international acclaim.  Case law has clearly announced that this category is open to business persons and “non professional” workers, including performers and artists, who can demonstrate that they have reached the a high level of achievement in their field.

“Extraordinary ability” in practice is a broad definition that may include many individuals who can show that their skills, experience or education have given them a special advantage over others in their field.  The key is defining the “field of endeavor”  (e.g.:  financial analyst specializing in corporate mergers vs. banker or businessman).  There are special criteria for performing artist and movie and television performers.  The visa can be issued in three year increments.  There is no limit on the number of extensions that can be granted.  It is a good alternative visa for aliens who may not have a formal college degree are affected by quota backlogs or subject to the 6 year limits on H-1B visas.

Treaty (E) Visas

E visas are available to individuals or companies from certain countries with which the United States has a treaty to encourage trade and investment.  E visas are usually issued for five years.  Extensions of stay in the United States may be obtained as long as eligibility continues.  The applicant must be the nationality of the treaty country (or for a company, more than 50% owned by national of the treaty country).  (You may call Tasoff and Tasoff for current information on treaty countries.) For the Treaty Trader Visas (E-1) there must be substantial trade conducted between the United States and the treaty country.  Trade includes the exchange, purchase or sale of goods or services or the transfer of technology.  Individual applicants must be the principal trader or an executive, manager or employee with special skills essential to the company.  The Treaty Investor Visas (E-2) requires that the individual or company makes a substantial at risk investment in a business in the United States.  The amount of the minimum investment depends on the nature of the enterprise.  The investor must show additional income derived from other sources than the investment.  The individual must be the principal, or an executive, manager or employee with special skills essential to the company.  Spouses and unmarried children under 21 years of age of the principal may be granted status to remain in the United States and can also qualify for employment authorization.

Exchange Visitor (J-1) Visas

An American company can offer on-the-job training to a foreign individual through the J-1 international exchange program.  Although the individual can train with the American company for up to 18 months, the visa is obtained through sponsorship by an organization approved by the Department of State.  This visa could be used to train an employee of a foreign affiliate at an American office.  One draw back of the J-1 visa is that it might require the individual to return to his or her country of nationality for two years before becoming eligible for other types of temporary visas or permanent resident status.  Spouses and unmarried children under 21 years of age of the principal may be granted J-2 visas to remain in the United States.  However, they may be subject to the two years foreign residence requirement before obtaining other immigration benefits.

ALIENS OF EXTRAORDINARY ABILITY IN THE ARTS (O-1) VISAS

The O-1 category requires that extraordinary ability be demonstrated by sustained national or international acclaim.  Case law has clearly announced that this category is open to business persons and “non professional” workers, including performers and artists, who can demonstrate that they have reached the top of their field.

Under the US Citizenship & Immigration Service regulations, persons coming to the US to work in the arts must demonstrate “extraordinary ability.”  This means “distinction or “ a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered…”  Although the regulations sound somewhat exclusive, in practice, they are broader.  The key is defining the “field of endeavor”  (e.g.:  financial analyst specializing in corporate mergers vs. banker or businessman).

Foreigners in motion picture or TV production must demonstrate a record of “extraordinary achievement”.  This means a “very high level of accomplishment in the motion picture or TV industry evidenced by a degree as Gail and recognition significantly up of that ordinarily encountered”.  The applicant must be “outstanding or notable”.

The regulations require that the applicant proof that he or she is prominent in his or her field by documenting that they have been the reset can’t of a significant international or national award or prize, or by documenting at least three of the following criteria:

Lead in production having a distinguished reputation

Critical reviews in major newspapers or trade journals

Lead for organization that has a distinguished reputation

Record of major commercial or critically acclaimed successes

Significant recognition from organization’s, critics, government agencies or other recognized experts in the field

Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

A person in the motion picture and TV production must meet a higher standard than those applicants in the arts.

Aside from meeting the evidence tests described above, a key requirement for O-1 applicants is consulting with an appropriate peer group, labor and/or management organization regarding the type of work to be performed and the qualifications of the proposed beneficiary. The peer group, normally a union or Guild, must provide a written opinion to the CIS, but the opinion is not binding. The CIS Operating Instructions provides a list of acceptable peer group organizations, but this list is not exclusive.  There are circumstances where there are no appropriate peer groups in a given field. In those cases, the CIS will normally make a decision without a peer group consultation. Also, the CIS will not require a new consultation if the beneficiary is reentering the US in the O-1 category within two years of a previous peer group consultation.

The admission of an O nonimmigrant is limited to the period of time necessary to complete the event for which the person is admitted but for positions of a more permanent nature the status can be granted for a period of up to three years and extended thereafter in one-year increments to a maximum of six years. Spouses and children of O-1 and O-2 aliens may enter the U.S. in O- 3 status for a concurrent period as that granted to the principal applicant.

Finally, it is important to note that the requirements for the O-1 non-immigrant visa are very similar to the rules for the EB-1 “priority worker” permanent residency category for extraordinary ability aliens (see below).  The two major differences are that a peer group consultation is not required in the permanent category and that in the permanent category the alien can self-petition.  The main reason we recommend using the O-1 category instead of the permanent residency category is because the O-1 visa can be obtained more expeditiously than permanent residency based on priority worker eligibility.

L-1 INTRACOMPANY TRANSFEREES

A multinational company must be able to rotate its cadre of management through a variety of situations and places so as to make a cohesive integration of its many international offices.  Even a small foreign company may have the need to transfer a key employee to the United States.  The United States government has created a temporary visa for multinational companies to use for transferring their executives, managers and employees with specialized knowledge to offices in the United States.  This visa is called the “L-1” intracompany transferee visa.

There are several requirements which must be met in order to qualify for the visa.  First, the structure of the multinational company must fit within the statutory definitions of “affiliate”, “subsidiary” or “branch office”.  Second, the foreign employee must qualify under the law as a “manager”, “executive” or an employee with “specialized knowledge”.  Third, the foreign employee must be otherwise eligible for a nonimmigrant visa.

The Citizenship & Immigration Services will only approve a petition from a qualifying American entity.  The American business must be a parent, subsidiary, affiliate, or branch of the foreign company from which the employee is transferring.  Each of these business relationships is defined by regulation and case law.  Joint ventures and other non-traditional ownership relationships create uncertain qualification.  Tasoff and Tasoff was instrumental in changing the law in regard to joint ventures qualifying to petition for an L-1 visa by participating as lead counsel in Matter of Smith Tools (Board of Immigration Appeals). The requirements regarding control and ownership, which are necessary to obtain an  L-1 visa, are complex and we recommend consultation with an immigration attorney prior to the creation of any business entity in the United States.

In addition to the qualifying relationship, the American entity must be “doing business”.  There are certain criteria and restrictions on newly created American businesses or those that have not operated for at least one year.  Despite these limiting restrictions, in many cases is it possible to prepare L-1 visa applications for executives and managers of newly opened United States offices.

THE J VISA CATEGORY – EXCHANGE VISITORS

Anyone wishing to take up prearranged employment, training or research in the United States under an officially approved program sponsored by an educational or other nonprofit institution requires an exchange visitor (J-1) visa. Persons covered by these programs include post graduate students, foreign medical graduates seeking to pursue graduate medical education or training, foreign scholars sponsored by universities as temporary faculty, and some business trainees. In addition, there are several exchange visitor programs for young people, including summer employment programs, intern programs for university students, and au-pair programs.

The holder of an exchange visitor J-1 visa may enter the United States up to 30 days before the designated start date on the DS-2019, the form issued by the sponsoring J-1 program.  A person in J-1 status may remain for up to 30 days after the completion date on the DS-2019.  For certain J-1 programs it is possible to obtain an extension of stay, change to a different nonimmigrant visa classification or apply for permanent resident status, if otherwise qualified.

However, certain J-1 programs require that the former J-1 visitor reside  in the country of his/her nationality or last residence for at least 2 years following the termination of exchange visitor status before an immigrant, fiancé(e), temporary worker or intracompany transferee visa or change of status can be granted.  These programs include those involved in government-funded exchange programs, those who pursued graduate medical education or training, and those whose countries have placed their academic fields on a “skills list”.  This mandatory two-year home-country stay, which applies to J-2 dependents as well, can be waived under the following conditions:

No objection statement (NOS) issued by the government of the home country of the J visa holders.

Exceptional Hardship: If a J-1 holder can demonstrate that his or her departure would cause exceptional hardship to his or her U.S. citizen or legal permanent resident dependents.

Persecution: If a J-1 holder can demonstrate that he or she can be persecuted in his or her home country.

Interested Government Agency: A waiver issued for a J-1 holder by a U.S. Federal Government agency that has determined that such person is working on a project for or of its interest and the person’s departure will be detrimental to its interest.

Conrad Program: A waiver issued for a foreign medical graduate who has an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area.

Spouses and/or children under the age of 21 who wish to accompany or join the principal visa holder in the United States for the duration of his or her stay qualify for derivative J-2 visas.  There are also provisions for “significant others” to obtain extended B-2 visitor status.  A J-2 visa holder may study in the United States and J-2 spouses may apply for employment authorization in order to pursue their career goals (e.g.: not solely for financial support).

Medical doctors or foreign medical school graduates coming to perform services as a member of the medical profession or to receive graduate medical education in the United States usually are required to pass the National Board of Medical Examiners (NBME) Parts I and II, or an examination determined to be equivalent.   Also, as mentioned previously, foreign medical graduates coming for graduate medical training in J-1 status (but not H-1 status) are subject to the 2 year residency requirement or must qualify for a waiver.

THE J VISA CATEGORY – EXCHANGE VISITORS

Anyone wishing to take up prearranged employment, training or research in the United States under an officially approved program sponsored by an educational or other nonprofit institution requires an exchange visitor (J-1) visa. Persons covered by these programs include post graduate students, foreign medical graduates seeking to pursue graduate medical education or training, foreign scholars sponsored by universities as temporary faculty, and some business trainees. In addition, there are several exchange visitor programs for young people, including summer employment programs, intern programs for university students, and au-pair programs.

The holder of an exchange visitor J-1 visa may enter the United States up to 30 days before the designated start date on the DS-2019, the form issued by the sponsoring J-1 program.  A person in J-1 status may remain for up to 30 days after the completion date on the DS-2019.  For certain J-1 programs it is possible to obtain an extension of stay, change to a different nonimmigrant visa classification or apply for permanent resident status, if otherwise qualified.

However, certain J-1 programs require that the former J-1 visitor reside  in the country of his/her nationality or last residence for at least 2 years following the termination of exchange visitor status before an immigrant, fiancé(e), temporary worker or intracompany transferee visa or change of status can be granted.  These programs include those involved in government-funded exchange programs, those who pursued graduate medical education or training, and those whose countries have placed their academic fields on a “skills list”.  This mandatory two-year home-country stay, which applies to J-2 dependents as well, can be waived under the following conditions:

No objection statement (NOS) issued by the government of the home country of the J visa holders.

Exceptional Hardship: If a J-1 holder can demonstrate that his or her departure would cause exceptional hardship to his or her U.S. citizen or legal permanent resident dependents.

Persecution: If a J-1 holder can demonstrate that he or she can be persecuted in his or her home country.

Interested Government Agency: A waiver issued for a J-1 holder by a U.S. Federal Government agency that has determined that such person is working on a project for or of its interest and the person’s departure will be detrimental to its interest.

Conrad Program: A waiver issued for a foreign medical graduate who has an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area.

Spouses and/or children under the age of 21 who wish to accompany or join the principal visa holder in the United States for the duration of his or her stay qualify for derivative J-2 visas.  There are also provisions for “significant others” to obtain extended B-2 visitor status.  A J-2 visa holder may study in the United States and J-2 spouses may apply for employment authorization in order to pursue their career goals (e.g.: not solely for financial support).

Medical doctors or foreign medical school graduates coming to perform services as a member of the medical profession or to receive graduate medical education in the United States usually are required to pass the National Board of Medical Examiners (NBME) Parts I and II, or an examination determined to be equivalent.   Also, as mentioned previously, foreign medical graduates coming for graduate medical training in J-1 status (but not H-1 status) are subject to the 2 year residency requirement or must qualify for a waiver.

Exchange Visitors (J-1) and Waivers of the Two-Year

Foreign Residence Requirement

It is the policy of the United States government to promote the exchange of ideas and culture with foreign nationals and facilitate interaction with American citizens.  More than 200,000 people each year come to the United States through thousands of exchange program opportunities.  The Department of State (DOS) oversees the exchange visitor (J-1) visa program that offer opportunities for post-secondary students, postdoctoral academic training, business and industrial training, professors and scholars, flight school trainees, and for summer work/travel.  Exchange program sponsors provide the foreign national with the DS-2019 Certificate of Eligibility for Exchange Visitor (J-1) Status.  The form is electronically produced through SEVIS.  The foreign national applies for the J-1 visa at the American Consulate that has jurisdiction over the place where the foreign national resides.  The American Consul can access the DS-2019 through the SEVIS system.

Some exchange programs require that at the end of the foreign national’s stay in the United States that he or she return to the country of last residence for a period of two years.  This requirement is found in the immigration laws at Section 212(e) and is commonly referred to as the “two year foreign residence requirement”.   Regulations require that the foreign national accrue a total of two years in the country of last residence before he or she can obtain an H, L, or P non-immigrant visa or obtain permanent resident status.  Periods spent outside the country of last residence do not count towards fulfilling the two-year requirement.

It is not always clear whether an exchange visitor is required to return to his or her country for the residence requirement or not.  Mistake in determining the applicability of Section 212(e) are often made by the program sponsors and also by the American Consul who issues the visa.  An opinion can be obtained from the DOS in cases of confusion.

Exchange visitors that are subject to the two-year foreign residence requirement may seek a waiver of the requirement so that he or she may change to another nonimmigrant category, such as H-1, or to adjust his or her status to permanent residence.  The Citizenship & Immigration Services (CIS) grants waiver requests after the DOS makes a favorable recommendation to the CIS.

There are four grounds for requesting the waiver:

Possible Persecution—“Would be subject to persecution on account of race, religion or political opinion.” Under this section, DOS has the authority to deny a waiver on “program and policy” grounds even if CIS finds that the exchange visitor would be subject to persecution. An exchange visitor granted political asylum is eligible for a waiver of the two-year foreign residence requirement if he or she applies for adjustment of status as an asylee based upon humanitarian or family unity considerations.

Exceptional Hardship—Departure from U.S. would impose exceptional hardship on the United States citizen or permanent resident spouse or child.  The applicant must show the hardship if spouse and or child accompanying him or her abroad for two years; and also the hardship if spouse or child remain in U.S.

No objection waiver–The country of the applicant’s nationality issues a no objection statement regarding applicant’s decision not to return home.  This option is not available to foreign medical graduate except if they came to U.S. to observe, consult, teach, or do research.   However, a no objection statement from the home country is generally insufficient if the U.S. government provided direct or indirect funding for the purpose of participating in an educational or cultural program.  However, the amount of money received from the U.S. government, whether the funds have been earmarked for exchange purposes, and the exchange visitor’s contributions to the U.S., are relevant.  Applicants usually request the no objection statement from their country’s Embassy in the United States.

Request by U.S. Agency—An interested government agency may request the granting of a waiver if in the public interest and compliance with the two year foreign residence requirement would be clearly detrimental to a program or activity of official interest to the agency. An example of a government agency that often supports waivers is HHS, which has broadened its program to include waivers for primary care physicians and general psychiatrists in medically undeserved areas.

“SPECIALTY OCCUPATION” WORKING (H-1B) VISAS

The U.S. immigration laws allow employers to temporarily hire foreign “professional” workers provided that both the petitioning employer and the alien beneficiary meet certain conditions which assure that the foreign workers will not be adversely affecting labor conditions in the United States or lowering the wages of American workers.  The H-1B visa is an excellent way for American businesses and foreign companies with operations in the United States to employ the “best and the brightest” workers that the world has to offer.   Although the category is restricted to college graduates or those with progressive experience that is equivalent to an American bachelor degree, it still has wide application, especially in high-tech fields such as computer and software development, engineering, or bio-medical research, and financial/business occupations.   Foreign workers already in H-1B status can immediately start working for a new employer as soon as the petition is filed with Citizenship & Immigration Service.

The basic requirements are:

(1) The applicant must be offered a position in a “specialty occupation” by an employer with operations in the United States.

(2) The applicant must qualify as a member of the “specialty occupation”.  Usually this requires the appropriate baccalaureate degree from an American university or college, foreign equivalent, or combination of education and progressive on-the-job experience that would be the equivalent of a baccalaureate from an American university or college.

(3) The employer must first obtain an approved labor condition application in which the employer states to the Department of Labor that prevailing wage and working conditions apply to the job offer and other requirements of the law will be met.

The law equates “specialty occupation” with the professions.  A profession is defined as an occupation which usually requires the completion of an American or American equivalent baccalaureate degree or higher at an accredited university or college. Examples of “professions” which qualify as specialty occupations include computer programmers and system analysts, engineers, scientists, medical and health specialists, accountants, finance and business specialists, lawyers, teachers, etc.  As with other “working visa” categories, spouses and unmarried children under 21 years of age of the principal applicant may be granted H-4 visas to remain in the United States for a concurrent period.

There is a cap of 58,200 H-1B visas per year with an additional 6,800 for Chilean and Singapore citizens.  An additional 20,000 H-1B visas per year are available to individuals who have obtained a master degree from a college or university in the United States. This limit does not include universities and research facilities or individuals who have already obtained H-1B status and are extending their stay in the United States or changing employers.   H-1B status can be extended for up to a total of six years; however further extensions may be possible under special circumstances.

TRADE NAFTA FOR CANADIAN AND MEXICAN CITIZEN PROFESSIONALS

Trade NAFTA (North American Free Trade Agreement) status is available to professions that have been agreed to by all three nations. A list of these professions follows. The TN visa that is issued under NAFTA allows for one year periods of employment in the United States.

The major benefits of TN status to Canadian citizens otherwise eligible for H-1B visa status are the streamlined application procedures at ports of entry (applicants can apply at pre-inspection posts at international airports in Canada or at the border), the lack of any limit on the number of extensions of stay or applications for readmission and the absence of a limit on the number of TN admissions that may be granted. This last benefit obviously becomes most important if the 65,000 annual limit on H-1B visas is reached.

The benefits of the TN category to Mexican citizens are somewhat reduced due to additional paperwork that is required of Mexican but not Canadian citizens, and the need to apply for a visa at an American Consulate in Mexico.  The paperwork required for a Mexican citizen to be approved for a TN visa is very similar to the requirements for a H-1B visa.  Therefore, when appropriate it is a better choice to apply for the H-1B visa.

Only a United States employer can file an I-129 petition to classify a Mexican citizen as a TN professional, but either a United States or foreign employer may seek to have a Canadian citizen classified as a TN professional.

A TN applicant may be denied entry to the United States or denied approval of a petition or application for TN status if the Secretary of Labor certifies to the Citizenship & Immigration Service that a strike or other labor dispute involving a work stoppage is in progress and that the temporary entry of the Mexican or Canadian citizen in TN status may adversely affect the settlement of the labor dispute or the employment of any person involved in the dispute. A Canadian or Mexican citizen who has already started working in the United States and who is participating in a strike or other labor dispute will maintain TN status, but the period of participation in the strike or work stoppage does not lengthen the time period the individual is allowed to remain in the United States.

Spouses and unmarried children under 21 years of age of TN principal applicant may apply for Trade Dependent (TD) status. Spouses and dependent minor children of TN professionals are issued an I-94 with a “multiple entry” notation. TD spouses and unmarried minor children may not accept employment unless otherwise authorized.

Tasoff and Tasoff

The information provided in this memorandum is very general and should not be relied on to make any decision in regard to petitioning the Immigration Service for a non-immigrant work visa for a foreign individual.  Tasoff and Tasoff strongly suggest a consultation with an immigration attorney to determine the best category for each situation.

PROFESSION MINIMUM EDUCATION REQUIREMENTS AND ALTERNATIVE CREDENTIALS

Accountant Baccalaureate or Licenciatura Degree; or C.P.A, C.A., C.G.A., or C.M.A.

Architect Baccalaureate or Licenciatura Degree; or state/provincial license

Computer Systems Analyst Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post Secondary Certificate and three years experience

Disaster Relief Insurance Claims Adjuster (Claims Adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster) Baccalaureate or Licenciatura Degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims

Economist Baccalaureate or Licenciatura Degree

Engineer Baccalaureate or Licenciatura Degree; or state/provincial license

Forester Baccalaureate or Licenciatura Degree; or state/provincial license

Graphic Designer Baccalaureate or Licenciatura Degree; or post-secondary diploma and three years experience

Hotel Manager Baccalaureate or Licenciatura Degree in hotel/restaurant management; or post-secondary diploma or post-secondary certificate in hotel/restaurant management and three years experience in hotel/restaurant management

Industrial Designer Baccalaureate or Licenciatura Degree; or post-secondary diploma or post-secondary certificate, and three years experience

Interior Designer Baccalaureate or Licenciatura Degree; or post-secondary diploma or post-secondary certificate, and three years experience

Land Surveyor Baccalaureate or Licenciatura Degree or state/provincial/federal license

Landscape Architect Baccalaureate or Licenciatura Degree

Lawyer (including Notary in the province of Quebec) L.L.B., J.D., L.L.L., B.C.L., or Licenciatura degree (five years); or membership in a state/provincial bar

Librarian M.L.S. or B.L.S. (for which another Baccalaureate or Licenciatura degree was prerequisite)

Management Consultant Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant , or five years experience in a field of specialty related to the consulting agreement

Mathematician (including statistician) Baccalaureate or Licenciatura Degree

Range Manager/Range Conservationist Baccalaureate or Licenciatura Degree

Research Assistant (working in a post-secondary educational institution) Baccalaureate or Licenciatura Degree

Scientific Technician/ Technologist Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research

Social Worker Baccalaureate or Licenciatura Degree

Sylviculturist (including forestry) Baccalaureate or Licenciatura Degree

 

Technical Publications Writer Baccalaureate or Licenciatura Degree, or post-secondary diploma or post-secondary certificate, and three years experience

Urban Planner (including Geographer) Baccalaureate or Licenciatura Degree

Vocational Counselor Baccalaureate or Licenciatura Degree

MEDICAL/ALLIED PROFESSIONALS

Dentist D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental or state/provincial license

Dietitian Baccalaureate or Licenciatura Degree; or state/provincial license

Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States) Baccalaureate or Licenciatura Degree; or post secondary diploma or post secondary certificate, and three years experience

Nutritionist Baccalaureate or Licenciatura Degree

Occupational Therapist Baccalaureate or Licenciatura Degree; or state provincial license

Pharmacist Baccalaureate or Licenciatura Degree; or state provincial license

Physician (teaching or research only) M.D., Doctor en Medicina; or state/provincial license

Physiotherapist/Physical Therapist Baccalaureate or Licenciatura Degree; or state/provincial license

Psychologist State/provincial license; or Licenciatura degree

Recreational Therapist Baccalaureate or Licenciatura Degree

Registered Nurse State/provincial license or Licenciatura degree

Veterinarian D.V.M., D.M.V., or Doctor en Veterinaria; or state/provincial license

SCIENTIST

Agricultural (Agronomist) Baccalaureate or Licenciatura Degree

Animal Breeder Baccalaureate or Licenciatura Degree

Animal Scientist Baccalaureate or Licenciatura Degree

Apiculturist Baccalaureate or Licenciatura Degree

Astronomer Baccalaureate or Licenciatura Degree

Biochemist Baccalaureate or Licenciatura Degree

Chemist Baccalaureate or Licenciatura Degree

Dairy Scientist Baccalaureate or Licenciatura Degree

Entomologist Baccalaureate or Licenciatura Degree

Epidemiologist Baccalaureate or Licenciatura Degree

Geneticist Baccalaureate or Licenciatura Degree

Geochemist Baccalaureate or Licenciatura Degree

Geophysicist (including Oceanographer in Mexico and the United States) Baccalaureate or Licenciatura Degree

Horticulturist Baccalaureate or Licenciatura Degree

Meteorologist Baccalaureate or Licenciatura Degree

Pharmacologist Baccalaureate or Licenciatura Degree

Physicist (including Oceanographer in Canada) Baccalaureate or Licenciatura Degree

Plant Breeder Baccalaureate or Licenciatura Degree

Poultry Scientist Baccalaureate or Licenciatura Degree

Soil Scientist Baccalaureate or Licenciatura Degree

Zoologist Baccalaureate or Licenciatura Degree

TEACHER

College Baccalaureate or Licenciatura Degree

Seminary Baccalaureate or Licenciatura Degree

University Baccalaureate or Licenciatura Degree