Understanding Select Temporary
and Permanent Visas
By: Samuel N. Omwenga, Esq.
A number of visas available each year to foreigners seeking to enter the United States but all of them fall into one of two types of visas: non-immigrant and immigrant. A non-immigrant visa is permission to come into the US on a temporary basis for any number of reasons, usually for a period commensurate with the type of visa. There are several categories of these visas, starting from A through S. Immigrant visas (or “green cards”) are given to persons that qualify to enter and permanently remain in the US. This article briefly discusses some of these visas and issues related to some of them for general information.
I. Non-Immigrant Visas
A. F-1 Student Visas
F-1 visas are non-immigrant visas issued to foreign students who come to the United States to pursue varying levels of education. In order to be given a student visa, an applicant must satisfy a number of requirements that are provided by statute but it is hardly ever clear when one has met these requirements because consular officers at American embassies are given wide discretion in determining whether these requirements are met. Once admitted into the US, a foreign student must maintain his or her status by complying with a number of conditions, including enrolling and attending classes full-time and not accepting “unauthorized” employment. With respect to employment, F-1 students are not allowed to work during their first year but may accept on-campus work after the first year. One thing to note, however, is that “on-campus” employment has been expanded to include employment which is off-campus at a location which is “educationally affiliated” with the school. In any case, when school is in session, work is limited to 20 hours per week, but the student can work full time while the school is not in session.
Other work opportunities for F-1 students include an internship with an international organization, curricular or optional practical training and work authorization based on unanticipated economic hardship. Most students assume that, since most applicants need to establish that they have a source of financial support to pay tuition and other expenses, it must therefore not be possible to say one needs to work to support oneself. This is not necessarily true. Sometimes unexpected things happen, such as the death of a loved one that used to provide support or other unanticipated disasters beyond the student’s control for which the students is rightly entitled to work to alleviate.
A common problem that nearly all F-1 students face at one time or another, is falling out of status, meaning one no longer meets the requirements of an F-1 student. A foreign national student studying in the U.S. can fall out of status either as a result of an action on their part, such as working without authorization, or it can be for a reason out of their control, such as when they transfer schools and the school official does not carry out the transfer procedures correctly or if they fall ill and cannot attend classes with the required minimum credits to maintain F1 status. Other reasons include dropping out of school entirely, or not completing the course work in time and being unable to meet the requirements for an F1 extension.
It is advised that students with this problem apply for reinstatement as soon as they can. If one qualifies for adjustment of status, then the problem is addressed by the adjustment of status itself. There may be circumstances under which a lighter course load can be authorized, with the assistance of a designated school official (DSO). If a student has fallen out of status but wishes to resume studies, the student may be able to apply for reinstatement. The basic requirements for a reinstatement, which is generally processed with the assistance of the DSO and involves an application to INS, are as follows:
(a) the out of status situation was because of circumstances that are beyond the student's control, or the student demonstrates that s/he would suffer extreme hardship if not reinstated;
(b) the student is pursuing, or intends to pursue, full time study;
(c) the student has not engaged in unauthorized off-campus employment; and
(d) none of the grounds for "removability" (formerly known as deportability) apply to the student, other than the overstay or violation of status itself.
As with any other petitions before the INS, there is no guarantee the INS will approve a request for reinstatement. However, if the facts favor the student and she can back these facts with documentation, then the odds are the INS will approve. This is because the INS makes a case-by-case determination on the request for reinstatement, based upon a review of all the circumstances. The INS particularly looks to see whether the requirements set above are met and if so, approval of the student’s application for reinstatement is likely to follow. However, it is entirely conceivable that one can meet these requirements but yet get denied reinstatement—usually where there is suspicion of fraud or the INS officer reviewing the file is simply not in the mood to approve it. Having a lawyer handle the petition is advised because a lawyer’s presence or involvement often ensures minimal abuse of discretion on the part of INS, to say the least.
On the other hand, students who have fallen out of status but who are not interested in going back to school full time may have other options, such as having an employer petition for an H1B, temporary work status, and then traveling abroad to apply for the H1B visa. This is usually an option for someone who already has another degree or has been pursuing an advanced degree in the US prior to falling out of status. In any event, it is strongly recommend that a foreign student who has fallen out of status consult with an immigration attorney immediately, if the DSO is unable or unwilling to help the student in the reinstatement process, otherwise the student may find him or herself suffering significant and predictably harsh consequences should the INS deny reinstatement. Experience ha shown that many students with these kinds of problems simply ignore them and hope that somehow they can resolve themselves. The fact is, they won’t and therefore one must take immediate steps to address them. There is no guarantee that consulting a lawyer and attempting to seek a solution through that lawyer will result in a positive and desirable outcome, but, what is guaranteed is, if you don’t get one, you will likely botch any chances you may have had to avoid deportation.
B. Visitor for business (B-1)
A visitor for business is an alien who intends to conduct business in the US which benefits a foreign employer, not in the nature of employment. He or she may not engage in local employment, nor displace a resident American worker, nor receive any direct remuneration for services from a US source. The B-1 visitor may be initially admitted to the US for a maximum period of one year until the purpose of his trip has been completed but he may apply for extensions of time that are necessary to complete that purpose.
C. Visitor for pleasure (B-2)
A visitor for pleasure is a foreigner admitted for a personal visit to friends or relatives, on holiday or for tourism. The initial period of admission is typically six months, and can be renewed for a maximum stay of one year. Extensions of stay are permitted in appropriate circumstances. Holders of this type of visa may not engage in employment in the US.
D. Temporary Worker (H1-B)
There are a number of non-immigrant visa categories for temporary employment in the US, however, for purposes of this article, only the H1-B visa category will be discussed. The H1-B1 visa is for people who are going to be employed in the US in a specialty occupation, usually, a professional occupation. There are four things needed to qualify for this visa: First, you need a US university degree, specifically, a bachelors degree, or its equivalent. If you do not have a bachelors degree or you don’t have a US university degree, then the critical question to be answered is whether you have its “equivalent.” The second thing you need is a job offer that relates to that degree or equivalency. The third requirement for an H1-B1 visa is that the position being offered to you requires, as a minimum entry requirement, a university degree. The fourth and last requirement for an H1-B1 visa is that the wages being paid for the position that is being offered to you must be the prevailing wage in the metropolitan area in which the position is located or the actual wage being paid to other individuals similarly employed in the company, whichever is higher. Again, it is advised that anyone seeking an H-1B visa consult a competent immigration lawyer to help in the complicated application process for this visa.
II. Immigrant Visas (“Green Cards”)
These are the categories of visas that allow their holders the to reside permanently in the US subject to revocation and removal in certain circumstances. Although there are some exceptions, basically, there are three ways one can get the coveted “green card” and these are: family, work, and satisfaction of the definition of a refugee.
A. Family-Based Immigration.
It is possible for US citizens or permanent residents to obtain green cards for their relatives. There is a quota and preference system that governs who gets a visa in this category and to understand it, you first need to understand the concept of “immediate relatives” of US citizens because persons qualifying as such are not subject to this quota and preference limitations. These are the spouses of US citizens, their statutorily defined “children” and the parents of US citizens, but only one must be at least 21 years old to petition for their parents.
The first family preference is for the sons and daughters of US citizens who are single. There is a wait time for most countries of about one year, and you get a place in line by having a visa petition filed for you. That place in line is called a “priority date.” There are two family second preference categories, 2-A and 2-B where second preference A includes spouses of permanent residents and the “children,” that is, children that are single and under twenty-one. The 2-B is for adult sons of permanent residents. The wait-time for these two types of visas is so long, usually 7-10 years. One is, in fact, better off trying another avenue of bringing these relatives than having to wait that long to get them here. For example, one can seek and obtain US citizenship and then petition for these relatives who now will be in the faster first preference track. The third family preference includes the married sons and daughters of US citizens, which also has a very long wait. The fourth and final preference includes brothers and sisters of US citizens. There is a lifetime wait for a visa in this fourth preference category.
B. Employment-Based Permanent Visas
There are generally two types of employment-based immigration. The first type requires a rigorous test of the US labor market for qualified US workers through the running of an advertisement otherwise known as the labor certification process. The details of this process are numerous and beyond the scope of this article. The second type does not require the Labor certification process; it is the better of the two.
1. First Preference Categories
A. Persons of Extraordinary Ability
There are three categories of first preference or priority cases. The first category is persons of extraordinary ability, usually in the sciences, arts, education, business or athletics. This extraordinary ability must be demonstrated by sustained national or international acclaim and the achievement must be evidenced through extensive documentation. The requirements of this O permanent visa are virtually the same as those of the non-immigrant O visa, with the only major difference being the laborious labor certification, which the latter requires, but the former does not. Also, a person can petition for himself or herself for the O permanent visa and the petition goes directly to the INS—no job offer is required but some documentation to show plans to work in the applicable field is required. Please note that this visa is only for a select few (usually the top 5% of a given field).
B. Outstanding Professors and Researchers
To qualify under this category, the applicant must be recognized internationally as outstanding in a specific academic area, and the applicant must have three years of experience teaching or conducting research in that area. As in the previous category, the applicant does not need to undergo the stringent labor certification process, but, unlike persons with extraordinary ability, an applicant in this category does need a permanent full-time offer, and the employer must petition for this person. Professors must be offered a tenured position and researchers must be offered a comparable position, i.e., one of unlimited or indefinite duration but the research position doesn’t have to be with a university; it can be with a private employer as long as that employer has at least three full-time researchers and can provide documentation of its accomplishments in the academic field.
2. Second Preference Categories
A. Advanced degrees and Exceptional Ability
The second preference includes members of the professions holding advanced degrees or foreign nationals of exceptional ability in the sciences, arts or business. An “advanced degree” is defined as a degree beyond a bachelors degree that requires at least one year graduate study. Applicants in this category normally are required to undergo labor certification but it is possible to avoid the process under the national waiver program. The standard for this category is slightly lower than that applied to persons with extraordinary ability. For specific information on how to qualify for this visa, please contact an immigration lawyer.
B. National Interest Waiver
This is basically saying the INS: “Please let me in because I have something to contribute to the national interests of the United States.” As you might see, this is not an easy proposition to sell but it can be done and is, in fact, done.
C. The Catch-All Category
This category is for those persons who do not fit either of the two categories above. The requirements in this category are possession of at least a bachelors degree for professionals, or coming to the US to work in a position that requires at least two years of training-for skilled workers. Both must have a job offer and labor certification is required.
As you can see, immigration law is a complex, rules and regulation driven practice. What I have attempted to do here is to give you as much information as you need to know to understand immigration law and what, if anything, you may have available in terms of visas for your own application. If you need specific information or have a question regarding visas discussed in this article or others that were not, please contact a competent immigration lawyer and he or she will provide an answer, assuming there is because some questions have no ready answers because even the INS or State Department has not figured them yet.