Bay Area Lawyers Network – April 25, 2000
James A. Bach, Esq.
Bach and Small
351 California Street, Suite 800
San Francisco, CA 94104
(415) 957-1100
Website: http://www.immilaw.com
Email: [email protected]
SUMMARY OF U.S. IMMIGRATION CATEGORIES
Copyright 2000
ALPHABET SOUP: NONIMMIGRANT VISAS
(Temporary visas to come to the U.S. for a specific purpose)
Diplomats and foreign officials (A visa).
B-1/B-2 – Visitors for Business or Pleasure
Visitors for business (B-1) cannot be employed in the U.S. but must have a foreign employer that pays the salary while the visitor is in the U.S. However, U.S. entity can pay expenses such as meals and lodging.
Visitors for pleasure are generally granted initial period of 6 months, which may be renewed for another six months. The INS is currently taking about 7-10 months to process the renewal applications.
Citizens of the following countries do not need a visa to visit the U.S.:
Andorra, Argentina, Austria, Australia, 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. The Attorney General has approved Greece for inclusion but some additional steps must be taken before citizens of Greece can travel to the United States without a visa.
Those who visit without a visa using this “visa waiver” program can remain in the U.S. for a maximum of 90 days, and no extension or change of status is permitted.
Canadian citizens do not need visas to travel to the U.S. in any nonimmigrant category (including as visitors), and the 90-day limit does not apply.
Those who visit the U.S. must have the intent at the time of entry to return to their home country and to remain in the U.S. only temporarily. That is true not only for visitor’s visas, but also for most nonimmigrant categories. So a person who has applied for an immigrant visa (green card) or otherwise expressed an intent to immigrate to the U.S. probably will be denied an application for a nonimmigrant visa (but exception for H, L and G visas).
Crewmen (C-1).
Investors (E-1) and importers/exporters (E-2)
There is no bright-line test for an adequate investment, but generally at least $250K at risk.
Must be needed in the U.S. to manage the investment (so stock or an apartment building won’t work).
If importer/exporter there must be “substantial” trade with home country.
Must be a national of a country that has a treaty with the U.S. or at least 50% of enterprise must be owned by nationals of that country.
Treaty countries are limited to those on the attached list (from State Department Foreign Affairs Manual, 9 FAM 41.51 Exhibit I).
Publicly owned stock is O.K. if traded on the national exchange (for example, Sony Corporation is traded on the Nikkei, so its key employees are eligible for E-1 and E-2 visas based on the treaty with Japan).
Key employees of the investor or exporter can also get E-1or E-2 visa to work in U.S.
Students attending post-secondary academic programs (F-1).
F-1 students can also work in the U.S. for one year following graduation (“Practical Training”).
During that year, they may be able to apply for H-1B status (infra) to continue working for another 6 years.
Students in non-academic training programs (M-1) are authorized to work after graduation one month for every four months of study, but not more than six months.
Students working in F-1 and M-1 status do not have to pay FICA (social security and Medicare) tax. (Internal Revenue Code § 3121(b)(19)).
Employees of international organizations (G, N, NATO).
Professionals who are working in a professional field (H-1B):
Must have a Bachelor’s degree in the specialty field, or “equivalent” education and experience (3 years of relevant experience will substitute for each missing year of college).
Maximum of 6 years. After one year abroad, can again return to the U.S. in H-1B status with a new 6-year clock.
Annual quota of 115,000 (legislation is pending to increase the quota).
Gateway to employment-based green card.
Employer must demonstrate it is paying the “prevailing wage”, the average salary for that profession in the area of intended employment.
Does NOT require intent to return to home country.
Other temporary workers: agricultural workers (H-2A), nonagricultural workers (H-2B), trainees (H-3). Very cumbersome and not generally cost-effective.
Information media representatives (I): reporters.
Exchange students and scholars, and other exchange visitors (J-1).
A remnant of the Cold War, previously administered under the now-defunct U.S. Information Agency (which also handled “Radio Free Europe”).
Generally those who visit the U.S. in J-1 status must return to their home country for at least two years before returning to the U.S. in another nonimmigrant or immigrant category.
Like F-1 students, those in J-1 status who work do not have to pay FICA tax.
Unlike spouses of other nonimmigrants, spouses (J-2) may also get employment authorization.
Fiancés/fiancées of U.S. citizens coming to the U.S. to marry (K-1) and their children (K-2).
Intracompany transferees of international corporations (L-1):
Must have worked for the company (or its foreign subsidiary or affiliate) outside of the U.S. for a total of at least one year within the past three years.
Must be a manager, executive or a person with specialized knowledge of the company’s products and procedures.
7-year limit for managers and executives. 5-year limit for those with specialized knowledge (but they usually become managers within those 5 years).
Liberal definition of “manager”:
A professional managing other professionals (including, e.g., an IT project leader).
A person who supervises other managers (of nonprofessional employees).
A person who has sole responsibility for an important company function (for example, a Controller who does not supervise others).
Does NOT require intent to return to home country.
Managers and executives are also eligible for green cards (infra).
Outstanding merit and ability (O-1). Those who have risen to the very top of their field of endeavor; recognized experts who have sustained national and international acclaim. Also eligible for green card under “Extraordinary ability” category, infra.
P-1: Performers (musicians, actors, athletes), and “essential support aliens” (backup musicians). Entertainers must have received international recognition and acclaim (not required of athletes).
Participants in cultural exchange programs (Q-1, similar to the J-1 supra).
Religious workers, priests, pastors and ministers (R-1).
Canadian citizens who are seeking temporary employment as professionals in the U.S. (TN).
Part of the NAFTA (Free Trade Agreement) treaty with Canada.
Must seek work in a professional occupation designated by the treaty (list from 8 CFR 214.6 is attached).
Can apply at the border in less than an hour.
Mexicans are also eligible, but the application process is more cumbersome (prior petition to INS, and visa issuance at U.S. Embassy or Consulate), so H-1B might be a better alternative.
Generally a nonimmigrant visa is issued at a U.S. Embassy or Consulate abroad, in a few hours or days. Some visas (e.g., E-1, E-2) may take several weeks, and others (e.g., H-1 and L-1) require prior petition to the INS.
Canadian citizens are not required to have (and cannot get) a U.S. visa.
GREEN CARDS: IMMIGRANT VISAS
(Right to live and work in the U.S. indefinitely)
Employment-Based Immigration.
Outstanding researchers and professors.
Must have received recognition for academic work, such as published articles, prizes and awards, articles cited by others, peer review, invited as speaker at conventions, etc.
Must have three years of paid research or teaching experience.
If researcher will be employed by private company, the company must employ at least three full-time researchers.
Teaching position must be tenured or tenure-track.
Employment Preference 1.
“Extraordinary ability” (similar to nonimmigrant O-1, supra): those who have risen to the very top of their profession, and have received sustained national and international acclaim.(Employment Preference 1).
“Exceptional ability” whose work is in the “national interest.” (Employment Preference 2).
Intracompany transferring managers and executives (similar to nonimmigrant L-1, supra). (Employment Preference 1).
Professional and skilled non-professional employees in occupations for which the Department of Labor has determined there is a shortage of U.S. workers.
Over 90% of employment-based immigrants.
Engineering (all specialties) generally considered a “shortage occupation.”
Process leading to the green card may take several years, and involve applications to four different government agencies (state job office such as California Employment Development Department, U.S. Department of Labor, INS, and State Department).
Job must require at least two years of experience (for example, specialty cook is usually O.K.).
Employment Preference 2 (jobs require Master’s degree, exceptional ability or Bachelor’s + 5 years experience) and 3 (everyone else).
Unskilled workers in shortage occupations: limited quota, so not a very viable option because process exceeds 8 years. (Employment
Preference Unskilled Workers).
Ministers of religion (Employment Preference 4).
Investors investing $1 million (or $½ million in an area with a high unemployment rate). Extremely cumbersome. (Employment Preference 5).
Family-Based Immigration: not subject to numerical quotas.
Spouses of U.S. citizens.
Parents of U.S. citizens (but U.S. citizen must be over the age of 20).
Minor children (under age 21) of U.S. citizens.
Family-Based Immigration: subject to numerical quotas.
Unmarried sons and daughters of U.S. citizens who are over the age of 20 (Family Preference 1).
Spouses and minor children (under age 21) of green card holders (Family Preference 2A).
Unmarried sons and daughters of green card holders who are over the age of 20 (Family Preference 2B).
Married sons and daughters of U.S. citizens (Family Preference 3).
Brothers and sisters of U.S. citizens (Family Preference 4).
Political Asylum and Refugee Status: well-founded fear of persecution based on race, religion, nationality, political opinion, or member of a particular social group.
Diversity (Immigration Lottery).
55,000 available each year.
Lottery application period is usually a one month period
Applicants can only be from countries that have relatively low levels of emigration to the U.S.
USEFUL WEBSITES
State Department (visa information):http://travel.state.gov/visa_services.html
State Department (monthly immigrant visa quota bulletin): http://travel.state.gov/visa_bulletin.html
State Department (website address of various U.S. Embassies and Consulates abroad):http://www.arc.org.tw/USIA/www.usia.gov/regional/posts/posts.htm
INS (general): http://www.ins.usdoj.gov/graphics/index.htm
INS (forms and instructions):http://www.ins.usdoj.gov/graphics/formsfee/forms/formsinstr.htm
Bach and Small: http://www.immilaw.com.
James A. Bach, Esq.
Bach and Small
351 California Street, Suite 800
San Francisco, CA 94104
(415) 957-1100
Website: http://www.immilaw.com
Email: [email protected]
SUMMARY OF U.S. IMMIGRATION CATEGORIES
Copyright 2000
ALPHABET SOUP: NONIMMIGRANT VISAS
(Temporary visas to come to the U.S. for a specific purpose)
Diplomats and foreign officials (A visa).
B-1/B-2 – Visitors for Business or Pleasure
Visitors for business (B-1) cannot be employed in the U.S. but must have a foreign employer that pays the salary while the visitor is in the U.S. However, U.S. entity can pay expenses such as meals and lodging.
Visitors for pleasure are generally granted initial period of 6 months, which may be renewed for another six months. The INS is currently taking about 7-10 months to process the renewal applications.
Citizens of the following countries do not need a visa to visit the U.S.:
Andorra, Argentina, Austria, Australia, 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. The Attorney General has approved Greece for inclusion but some additional steps must be taken before citizens of Greece can travel to the United States without a visa.
Those who visit without a visa using this “visa waiver” program can remain in the U.S. for a maximum of 90 days, and no extension or change of status is permitted.
Canadian citizens do not need visas to travel to the U.S. in any nonimmigrant category (including as visitors), and the 90-day limit does not apply.
Those who visit the U.S. must have the intent at the time of entry to return to their home country and to remain in the U.S. only temporarily. That is true not only for visitor’s visas, but also for most nonimmigrant categories. So a person who has applied for an immigrant visa (green card) or otherwise expressed an intent to immigrate to the U.S. probably will be denied an application for a nonimmigrant visa (but exception for H, L and G visas).
Crewmen (C-1).
Investors (E-1) and importers/exporters (E-2)
There is no bright-line test for an adequate investment, but generally at least $250K at risk.
Must be needed in the U.S. to manage the investment (so stock or an apartment building won’t work).
If importer/exporter there must be “substantial” trade with home country.
Must be a national of a country that has a treaty with the U.S. or at least 50% of enterprise must be owned by nationals of that country.
Treaty countries are limited to those on the attached list (from State Department Foreign Affairs Manual, 9 FAM 41.51 Exhibit I).
Publicly owned stock is O.K. if traded on the national exchange (for example, Sony Corporation is traded on the Nikkei, so its key employees are eligible for E-1 and E-2 visas based on the treaty with Japan).
Key employees of the investor or exporter can also get E-1or E-2 visa to work in U.S.
Students attending post-secondary academic programs (F-1).
F-1 students can also work in the U.S. for one year following graduation (“Practical Training”).
During that year, they may be able to apply for H-1B status (infra) to continue working for another 6 years.
Students in non-academic training programs (M-1) are authorized to work after graduation one month for every four months of study, but not more than six months.
Students working in F-1 and M-1 status do not have to pay FICA (social security and Medicare) tax. (Internal Revenue Code § 3121(b)(19)).
Employees of international organizations (G, N, NATO).
Professionals who are working in a professional field (H-1B):
Must have a Bachelor’s degree in the specialty field, or “equivalent” education and experience (3 years of relevant experience will substitute for each missing year of college).
Maximum of 6 years. After one year abroad, can again return to the U.S. in H-1B status with a new 6-year clock.
Annual quota of 115,000 (legislation is pending to increase the quota).
Gateway to employment-based green card.
Employer must demonstrate it is paying the “prevailing wage”, the average salary for that profession in the area of intended employment.
Does NOT require intent to return to home country.
Other temporary workers: agricultural workers (H-2A), nonagricultural workers (H-2B), trainees (H-3). Very cumbersome and not generally cost-effective.
Information media representatives (I): reporters.
Exchange students and scholars, and other exchange visitors (J-1).
A remnant of the Cold War, previously administered under the now-defunct U.S. Information Agency (which also handled “Radio Free Europe”).
Generally those who visit the U.S. in J-1 status must return to their home country for at least two years before returning to the U.S. in another nonimmigrant or immigrant category.
Like F-1 students, those in J-1 status who work do not have to pay FICA tax.
Unlike spouses of other nonimmigrants, spouses (J-2) may also get employment authorization.
Fiancés/fiancées of U.S. citizens coming to the U.S. to marry (K-1) and their children (K-2).
Intracompany transferees of international corporations (L-1):
Must have worked for the company (or its foreign subsidiary or affiliate) outside of the U.S. for a total of at least one year within the past three years.
Must be a manager, executive or a person with specialized knowledge of the company’s products and procedures.
7-year limit for managers and executives. 5-year limit for those with specialized knowledge (but they usually become managers within those 5 years).
Liberal definition of “manager”:
A professional managing other professionals (including, e.g., an IT project leader).
A person who supervises other managers (of nonprofessional employees).
A person who has sole responsibility for an important company function (for example, a Controller who does not supervise others).
Does NOT require intent to return to home country.
Managers and executives are also eligible for green cards (infra).
Outstanding merit and ability (O-1). Those who have risen to the very top of their field of endeavor; recognized experts who have sustained national and international acclaim. Also eligible for green card under “Extraordinary ability” category, infra.
P-1: Performers (musicians, actors, athletes), and “essential support aliens” (backup musicians). Entertainers must have received international recognition and acclaim (not required of athletes).
Participants in cultural exchange programs (Q-1, similar to the J-1 supra).
Religious workers, priests, pastors and ministers (R-1).
Canadian citizens who are seeking temporary employment as professionals in the U.S. (TN).
Part of the NAFTA (Free Trade Agreement) treaty with Canada.
Must seek work in a professional occupation designated by the treaty (list from 8 CFR 214.6 is attached).
Can apply at the border in less than an hour.
Mexicans are also eligible, but the application process is more cumbersome (prior petition to INS, and visa issuance at U.S. Embassy or Consulate), so H-1B might be a better alternative.
Generally a nonimmigrant visa is issued at a U.S. Embassy or Consulate abroad, in a few hours or days. Some visas (e.g., E-1, E-2) may take several weeks, and others (e.g., H-1 and L-1) require prior petition to the INS.
Canadian citizens are not required to have (and cannot get) a U.S. visa.
GREEN CARDS: IMMIGRANT VISAS
(Right to live and work in the U.S. indefinitely)
Employment-Based Immigration.
Outstanding researchers and professors.
Must have received recognition for academic work, such as published articles, prizes and awards, articles cited by others, peer review, invited as speaker at conventions, etc.
Must have three years of paid research or teaching experience.
If researcher will be employed by private company, the company must employ at least three full-time researchers.
Teaching position must be tenured or tenure-track.
Employment Preference 1.
“Extraordinary ability” (similar to nonimmigrant O-1, supra): those who have risen to the very top of their profession, and have received sustained national and international acclaim.(Employment Preference 1).
“Exceptional ability” whose work is in the “national interest.” (Employment Preference 2).
Intracompany transferring managers and executives (similar to nonimmigrant L-1, supra). (Employment Preference 1).
Professional and skilled non-professional employees in occupations for which the Department of Labor has determined there is a shortage of U.S. workers.
Over 90% of employment-based immigrants.
Engineering (all specialties) generally considered a “shortage occupation.”
Process leading to the green card may take several years, and involve applications to four different government agencies (state job office such as California Employment Development Department, U.S. Department of Labor, INS, and State Department).
Job must require at least two years of experience (for example, specialty cook is usually O.K.).
Employment Preference 2 (jobs require Master’s degree, exceptional ability or Bachelor’s + 5 years experience) and 3 (everyone else).
Unskilled workers in shortage occupations: limited quota, so not a very viable option because process exceeds 8 years. (Employment
Preference Unskilled Workers).
Ministers of religion (Employment Preference 4).
Investors investing $1 million (or $½ million in an area with a high unemployment rate). Extremely cumbersome. (Employment Preference 5).
Family-Based Immigration: not subject to numerical quotas.
Spouses of U.S. citizens.
Parents of U.S. citizens (but U.S. citizen must be over the age of 20).
Minor children (under age 21) of U.S. citizens.
Family-Based Immigration: subject to numerical quotas.
Unmarried sons and daughters of U.S. citizens who are over the age of 20 (Family Preference 1).
Spouses and minor children (under age 21) of green card holders (Family Preference 2A).
Unmarried sons and daughters of green card holders who are over the age of 20 (Family Preference 2B).
Married sons and daughters of U.S. citizens (Family Preference 3).
Brothers and sisters of U.S. citizens (Family Preference 4).
Political Asylum and Refugee Status: well-founded fear of persecution based on race, religion, nationality, political opinion, or member of a particular social group.
Diversity (Immigration Lottery).
55,000 available each year.
Lottery application period is usually a one month period
Applicants can only be from countries that have relatively low levels of emigration to the U.S.
USEFUL WEBSITES
State Department (visa information):http://travel.state.gov/visa_services.html
State Department (monthly immigrant visa quota bulletin): http://travel.state.gov/visa_bulletin.html
State Department (website address of various U.S. Embassies and Consulates abroad):http://www.arc.org.tw/USIA/www.usia.gov/regional/posts/posts.htm
INS (general): http://www.ins.usdoj.gov/graphics/index.htm
INS (forms and instructions):http://www.ins.usdoj.gov/graphics/formsfee/forms/formsinstr.htm
Bach and Small: http://www.immilaw.com.