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9.pptxNonimmigrant Visas for Brief Stays, Studies, & Cultural Exchange
CHAPTER 2 (pages 39 – 87)
Differences between Nonimmigrant and Immigrant Visas
Nonimmigrant Visas
Allows a foreign national (FN) to present at border to ask permission for entry into US, which if granted, allows FN to remain for a temporary period
NO intent to remain permanently (no intent to immigrate to US)
Must demonstrate nonimmigrant intent (intent to return to country of origin after stay expires)
FN may only engage in activity allowed by the nonimmigrant visa classification granted
Immigrant Visas
Permission for a foreign national (FN) to reside permanently in US
Once immigrant visa is granted, then FN has status as a lawful Permanent Resident (LPR) and LPR card (aka “green card”) is issued
LPR card is proof of FN’s immigrant LPR status
FNs may work as LPRs for most employers in the US, open a business, attend schools of higher education, & travel to/from the US
Nonimmigrants: Rights?
There is currently NO equal protection or other constitutional safeguards given to Foreign Nationals (FNs) / nonimmigrants seeking temporary status in the US from abroad; thus, little can be done to challenge denial of a nonimmigrant visa
Result: No recourse or appeal if FN believes that s/he was unfairly denied or treated during the nonimmigrant application process
Once INSIDE the US, a FN who is authorized to legally work in the U.S. is entitled to due process of law with protection from discriminatory and unfair labor practices set forth by both state and federal laws.
Result: Entry into the U.S. gives FNs more rights
Interesting result: a FN who believes that they are denied a nonimmigrant work visa by the consular officer at the US Embassy due to his/her race, color, religion, sex, national origin, and/or sexual orientation has little recourse to overturn the decision, BUT once a FN is lawfully working in the US on an approved nonimmigrant work visa, then the FN is afforded the same protections against discriminatory & unfair practices as a US citizen
Chart of Non- immigrant Visas in US
Considerations in Nonimmigrant Visa Applications
Each visa classification has a SPECIFIC designation and objective
Foreign National (FN) may be eligible for more than one type of nonimmigrant visa to temporarily enter the US
Thus, FN should select the type of nonimmigrant visa that best fits the type of activity that the FN wants to conduct inside the U.S
Considerations for Nonimmigrant Work Visas and U.S. workers
U.S. Citizenship and Immigration Services (USCIS), the Department of Labor (DOL), and US Immigration and Customs Enforcement (USICE) and its subagencies such as the Fraud Detection and National Security Directorate (FDNS) conduct worksite visits and investigations to ensure that employers are only hiring individuals legally allowed to work in the US
“U.S. Worker” is defined as “a U.S. citizen, LPR, asylee, refugee, or any other person granted permission to work by USCIS.”
Goal: To ensure that U.S. Workers’ wages are not undercut by FN employment
Nonimmigrant visas are also important to U.S. businesses and the economy
Nonimmigrant visas allow multinational companies to share knowledge, provide managerial services, or perform specialized work between US & overseas offices
Advantageous to US businesses by allowing companies to fill vacancies where there may not be a US professional available with equivalent backgrounds or where a current shortage may exist (such as STEM fields)
Visa Terminology
Consular Officers: Members of the foreign service of the Department of State who can rule on visa applications, assist US citizens abroad, & represent interests of US in foreign countries
Consular Processing: Applying for an immigrant or nonimmigrant visa from abroad (meaning applicant applies from outside of U.S.)
Visa Waiver Program (VWP): Allows citizens of designated countries to travel to the US without a visa for stays of 90 days or less, when they meet certain eligibility requirements
Visa Exempt: The ability to enter the US without the need for a foreign national to obtain a visa stamp
Nonimmigrant Visa Waiver: A waiver that allows a foreign national to overcome a ground of inadmissibility for a temporary stay in the US
Reciprocity Fee: An additional fee a visa applicant must pay depending on the visa classification and nationality of the applicant
The Visa Application Process
US Department of State controls Embassies and Consulate General Offices around the world, and each has a consular section where consular officers decide whether a particular visa application should be approved through a process called consular processing.
A Foreign National must obtain a visa to enter the US unless eligible for the visa waiver program OR visa exempt (only Canadians & Bermudians are visa exempt)
Think of a visa like a window of time that a FN has to present himself for entry into the US, but it does NOT guarantee entry into the US
US Customs & Boarder Patrol Officer determines whether or not FN should be allowed into the US
A visa is a colorful stamp placed in a foreign national’s passport that provides the following information:
Biographical information
Visa type
Duration of visa validity
Admission Stamps & I-94 Cards
When a Foreign National (FN) enters the U.S., an ink admission stamp is placed in the FN’s passport that states the visa category of admission and length of time that the FN may remain in the U.S.
USCBP also issues an I-94 card that states the name, country of citizenship, date of admission, class of admission, and length of stay that the FN has in the U.S.
Both the admission stamp and I-94 card are the FN’s proof that the FN was legally inspected and admitted into the U.S.
FNs may obtain copies of their I-94 cards, as well as their travel histories, for free from the following website: https://i94.cbp.dhs.gov/I94/#/home
FNs have 2 types of evidence of lawful admission into the U.S.
Admission Stamp in Passport
I-94 Card
Think about how a lack of counsel, language barriers, and understanding of immigration law could affect the overall outcome of applying for entry on an approved visa…
Several years ago, a long-time client called me to ask my opinion about his brother being denied entry to the U.S. on a visitor visa. We will call my client “Bob” and his brother “Larry”. Neither Bob nor Larry realized that brother Larry could be denied entry into the U.S. after Larry obtained the visitor visa nor did they realize that it was Larry’s job to convince the CBP officer that he should be allowed entry to the U.S.
Bob sent me a transcript of the interview between Larry and the CBP officer for me to review. The transcript showed that when Larry’s plane landed, he was interviewed by a USCBP officer who asked him why he was visiting the U.S., and Larry told him that he was here to visit with his brother Bob and Bob’s wife and kids for the summer. The CBP officer then asked Larry what his brother did for a living, and Larry said that Bob owned a gas station with an attached convenience store. The next part of the interview transcript immediately told me why Larry was denied entry and it went something like:
Transcript of interview between USCBP Officer & Larry:
CBP: If your brother asked you to visit him at his store, would you?
Larry: Yes.
CBP: While at your brother’s store, if he needed help moving boxes, would you help him?
Larry: Sure I’d help him.
CBP: If your brother asked you to help him unpack the boxes and put the items on the shelves would you help him?
Larry: Of course.
CBP: What if your brother asked you to run the cash register for him while he stepped out for a few minutes?
Larry: Yes, yes. I’d help my brother with anything that he needs because he is family.
CBP: I am denying you entry as a visitor into the U.S. because you have admitted that you intend to work in the U.S. if asked and you do not have a visa that allows you to legally work in the U.S.
Now what does Larry do?
Larry had to leave on a plane that day to return to his country of citizenship and never was able to visit with Bob or Bob’s family.
Larry and Bob come from a family that always helps each other whenever asked, so neither man saw anything wrong with Larry helping Bob if Bob needed help at his store
Through the interview, the CBP officer was able to get Larry to admit that he would perform the same type of work that is typical for a convenience store employee to perform (move / unpack boxes, stock shelves, run the cashier), so the CBP officer had a reasonable belief that Larry intended to visit Bob AND work in Bob’s store.
Larry was unaware of anything that he had to prove at the time of his entry (such as that he was ONLY there to visit and NOT to work) or questions that he would be asked regarding his nonimmigrant intent; if he had been aware, then he would have clarified his answers and understood that he could not perform any “work” in the U.S.
Nonimmigrant Visa Waivers
A Foreign National (FN) can have an approved benefit petition for a visa but still be deemed inadmissible to the U.S.
Inadmissible means the inability to demonstrate eligibility for lawful entry into the U.S., either abroad, at the border, or during an application to adjust status to a permanent resident, because of a failure to meet the criteria of one or more grounds listed in section 212a of the Immigration & Nationality Act (INA).
Not every ground of inadmissibility is eligible for a waiver.
For example, NO waiver of inadmissibility for drug trafficking or terrorism
If not eligible for inadmissibility waiver, then explore nonimmigrant waiver
When deciding whether to grant a nonimmigrant visa waiver, the embassy or consulate will consider:
Risk of harm in admitting the FN,
Serious nature of acts that caused the inadmissibility issue, AND
Importance of the FN’s reason for seeking entry to the U.S.
Obtaining a Nonimmigrant Visa Stamp
FNs must check the specific requirements and procedures in the country where the individual will be submitting the visa application.
Should check website for the Embassy for detailed instructions
Usually visa applicants between the ages of 14-79 must appear in person
Sometimes appearance for a 2nd or subsequent visa application is waived
Different visas have different requirements
Student visa requires school where students will study to accept them and produce document to show future enrollment
Work visas require USCIS approval of U.S. employer sponsor’s filed petition for the nonimmigrant worker who is seeking the work visa
All nonimmigrant visa applicants MUST complete Form DS-160, Online Nonimmigrant Visa Application, which is used for all nonimmigrant classifications
Recent Changes to Form DS-160
Both Immigrant Visa Applications and Nonimmigrant Visa Applications were revised in 2017 so that the applicant must disclose information regarding his/her social media use.
FN’s must disclose all social media accounts used within the past 5 years by providing usernames and handles, but not passwords
Dishonesty / fraud on any immigration application subjects the applicant to the possibility of future allegations by the U.S. government of inadmissibility and/or ineligibility for other immigration benefits
Rationale for this change was to promote security / safety U.S.
Those who are applying for entry under the Visa Waiver Program (VWP) are exempt from this because they do not need to apply for a visa for entry; thus, they don’t need to submit or complete Form DS-160
Visa Fees & Reciprocity
When the DS-160 is submitted, then the FN will be directed to a country specific website where they will have to pay a visa application fee.
Each visa carries a different price, and in some cases, additional fees are applied depending on visa type and nationality of applicant. These additional fees are reciprocity fees.
A consular officer is not bound to follow reciprocity schedules when deciding for how long a visa should be valid or the number of entries to the U.S. it should permit
If a consular officer suspects that a FN may engage in activities not allowed under their visa classification, then they can shorten the length that it is granted for
Effect: This discretion leads to inconsistent exercises of discretion between consular officers, as well as varying between embassies.
Final Step of Visa Process
FN appears at the US embassy or consular office for the visa application interview.
Evidence in support of the visa application is usually submitted at the interview.
FN must be aware of the types of evidence needed for the classification sought
Best for FN to submit as much evidence as possible
If Consular Officer reviews and believes that FN has met all criteria, then a visa sticker will be placed inside the FN’s passport
Remember that the FN will still have to convince the USCBP officer at the port of entry where the FN presents himself of eligibility to entry the US
Changing or Extending Nonimmigrant Status (not employment related)
Once FN has arrived inside the US, it is possible for FN to extend the length of nonimmigrant status or change nonimmigrant categories, as long as FN did NOT enter under the visa waiver program
Overstaying without approval will always require FN to report the violation on future immigration benefit applications
Form I-539 Application to Extend / Change Nonimmigrant Status would be filed by the FN with USCIS to request the extension or change
No interview process for decision on I-539 application
Application should be timely submitted, meaning it is filed & received by USCIS before status expires
MUST submit all required evidence to support extension or change request
Additional filing fee of $455 paid to USCIS with application
TODAY: 90 DAY RULE As of 2017, there is a presumption of willful misrepresentation for any FN whose conduct within 90 days of entry was inconsistent with the original visa category granted. After 90 days, there is no presumption but officer could seek to deny or revoke visa if there is direct or circumstantial evidence to support “reason to believe” misrepresentation occurred.
30/60 DAY RULE
Prior to 2017, US Department of State presumed misrepresentation of nonimmigrant intent if any of these occurred within 30 days (rebuttable presumption if any of these occurred between 30 – 60 days after entry):
Actively seeking or engaging in unauthorized employment
Marrying or taking up permanent residence
Enrolling in a full course of academic study without status change
Any other activity where a status change should have first been acquired
Nunc Pro Tunc
Latin term that literally means “now for then”
“Nunc pro tunc” basically amounts to a request for forgiveness
Nonimmigrants can file late I-539 Applications with a “nunc pro tunc” request to show that the delay was due to circumstances beyond the FN’s control
Factors USCIS considers with nunc pro tunc filings:
Delay was due to extraordinary circumstances beyond the control of applicant or petitioner AND USCIS finds delay commensurate with the circumstances
FN has not otherwise violated nonimmigrant status
FN remains a bond fides nonimmigrant
FN is not subject to removal procedures
Modern Day I-539 Nunc Pro Tunc Example
My phone was ringing off the hook with FNs calls stating that they had plane tickets to leave the U.S. during spring 2020, but their flights were canceled due to COVID-19, which prevented them from timely departing the U.S. All were advised to file I-539 Applications and submit evidence of intent to timely depart (copy of plane ticket, travel itinerary, email canceling flight) and a request to accept late filed I-539 due to circumstances outside of their control (the COVID-19 pandemic). Many didn’t even know that filing an I-539 application existed as an option to extend their status. I’m happy to report that I have not heard of any I-539 applications denied when submitted for the above reasons and with proper evidence.
Change/Extend Nonimmigrant Status with employment benefit
Typically if FN is seeking a benefit that provides an automatic grant of employment authorization then a petitioner (the US employer) will file a Form I-129 Petition for Nonimmigrant Worker on behalf of the FN
Examples of when to use I-129 petition include changing from:
student status to professional specialty worker
Extending status when transfer of manager from foreign branch office to branch located inside of U.S.
Different from examples of when to use I-539 which include visitor extending stay in the US to engage in additional tourism or changing status to attend college as a student
I-129 Petition has different filing fee ($460) and evidence requirements than I-539 Application
Unlawful Presence: present in U.S. without permission or beyond admission period granted
Unlawfully present Between 180 days but less than 1 year
FN who voluntarily leaves the U.S. during this time period will be barred (prevented) from reentry into the US for three (3) years
One year or more
FN who voluntarily leaves the U.S. during this time period will be barred (prevented) from reentry into the US for ten (10) years
FN who overstays visa admission date by less than 180 days is not automatically barred from reentry into U.S., but FN must disclose this unlawful presence, which the US government may consider in deciding future immigration benefits or visa requests.
Sources of Law
Title 8 of the Code of Federal Regulations sets forth regulatory sections for adjudication of nonimmigrant visa classification by USCIS
Title 20 of the Code of Federal Regulations addressed employment of FN in the US and often requires the involvement of the Department of Labor (DOL)
Department of Foreign Affairs Manual (FAM): Statutory authority detailing the Department of State’s (DOS) regulations and policies on its organizational structure and operations; handbook for consular officers deciding visas.
Frequently cited because consular officers are trained using the FAM
Case law does NOT play a role in nonimmigrant visa applications decided abroad because there is no appeal process
Doctrine of Consular Nonreviewability
Doctrine that a decision is final and cannot be appealed.
No appeals means there is NO review of the denial or reasons for it.
New application may be submitted after denial and can serve as a quasi-appeal if it contains additional evidence and arguments why the grant of the visa is appropriate.
Temporary Visitors to the US for Business (B1) and Pleasure (B2)
B visa classification permits entry for a number of varied purposes, such as
Attend business meetings
Go to a conference
Vacation in the U.S.
Does NOT allow for a FN to conduct Productive Work
May not engage in duties or activities that would normally be performed by a U.S. worker and/or activities that result in financial gain for the U.S. employee
If B1 conducts productive work, it could result in future inadmissibility and fines against US employer
Think for this as a Bystander visa
Criteria for B visitor status
B visa applicants must convince consular officer that they:
Have a residence in a foreign country which they do not intend to abandon,
Note: this does NOT mean “own a home”
Showing nonimmigrant intent (meaning an intent to return home) can be the most difficult element to prove
Intend to enter US for a period of limited duration, AND
Seek admission for the sole purpose of engaging in legitimate activities relating to business or pleasure
Best evidence to include to demonstrate nonimmigrant intent:
Letter from individual’s employer
Evidence of existence of a business, for those who are self employed
Proof of property or land ownership in country
Evidence of family members that the FN will return to following a visit to the US
Common Reasons for B2 Visitor for Pleasure:
Tourism or family visits
Seek medical treatment
Participating in social event
Short courses of study
Performing as an amateur where no compensation provided
Co-habituating partners of FNs who are present in other nonimmigrant visa classifications
Foreign Affairs Manual Prohibits following activities as valid reasons to enter as visitor:
Participate in a course of long term study
Perform work that would be considered gainful employment
Engage in paid performances or any professional performance before a paying audience
Work as a foreign press, radio, or film journalist
There are other classifications that allow FNs to engage in the above, which is why it is so important to apply for the correct nonimmigrant visa category. Applying for the wrong category could result in a denial!
B1 / B2 CHECKLIST typical applications include:
Form DS-160 Online Nonimmigrant Visa Application
Receipt of payment of filing fee
Proof of valid visitor visa purpose of travel to the US (invitation letter)
Proof of funds to cover the trip
Itinerary outlining the activities associated with the trip if it is for a business purpose
Studying in the U.S.
F-1 Student Visa vs.
Allows FN to enroll in academic or language studies in the U.S.
May attend private primary, secondary, or public or private post-secondary school verified by DOS as authorized to support international students
Must be accepted at approved institute taking fulltime course load of at least 12 credit hours
Must possess nonimmigrant intent
M-1 Student Visa
Allows FM to pursue vocational education in the U.S., such as trade school
Similar to F-1 visa in terms of requirements
Must be accepted at approved institute taking fulltime course load of at least 12 credit hours
Must possess nonimmigrant intent
Studying in the U.S. Step 1. Be admitted to US school
US educational institution must accept FN first before F-1 or M-1 visa application is submitted
Institution MUST provide FN with evidence of admission to school on Form I-20, Certificate of Eligibility for Nonimmigrant Student Status
Functions like approval notice and provides strong evidence of visa eligibility
School must be on the list of approved schools issued by the Student and Exchange Visitor Program (SEVP), which is a branch of USICE
Each school has a Designated School Official (DSO) who is a designated employee of an education institution that is charged with assisting FN students through the visa application process
Studying in the U.S. Step 2. Consular Processing
FN must submit Form DS-160 and any additional evidence required
Evidence of prior education
Proof of intent to depart U.S. at end of course of study
Proof of funds to pay costs of the travel, tuition, room, & board
Pay visa processing fee
Attend interview at the consulate
Studying in the U.S. Duration of Status
F-1 & M-1 Students are admitted for duration of status
Duration of Status: admission to the U.S. for an unspecified duration so long as underlying nonimmigrant status is maintained
Meaning that as long as student is pursuing a fulltime course of study and has up to date records in SEVIS, then s/he can continue to remain in the U.S.
Once course of study is completed & FN no longer possess valid I-20, s/he provided additional grace period of additional time to remain in valid status to prepare to leave the U.S.
F-1 students get 60 days grace period
M-1 students get 30 days grace period
Possible to stay longer if they change visa classifications or obtain employment authorization through Optional Practical Training (OPT)
Studying in the U.S. Employment Eligibility
On-Campus Employment
Automatically available to all FN from the date that course of study begins for up to 20 hours per week
When school is not in session, F-1 students can work up to 40 hours per week
No separate petition to USCIS is needed for students to get this type of work
Off-Campus Employment
Only available after 1st academic year
Only allowed up to 20 hours per week
Must demonstrate of severe economic necessity by FN that was unforeseen at the time of visa interview (for example death of benefactor, medical bills, rapid currency exchange devaluation rates, or similar events)
Must file I-765 Application for Employment Authorization in order obtain
Employment Authorization Document
A document issued by the USCIS that confirms the ability of a Foreign National (FN) to work in the United States
F-1 SCurricular Practical Training vs. Optional Practical Training
CPT vs.
Temporary grant of employment authorization that occurs while student is completing degree
Must be directly associated with major or primary course of study
Encourages industry experience through internships to give real world experience
EAD card is NOT necessary and is granted by DSO annotating I-20 accordingly
OPT
Can occur while student is completing degree or post-completion
In general students get 12 months of OPT and any pre-completion OPT is subtracted from the 12 months permitted
If STEM degree then may get 36 months OPT
Must file I-765 to get EAD card and prohibited from beginning employment until EAD card is issued
M-1 Students and Employment
M-1 vocational students are only eligible for employment considered practical training related to field of study that takes place AFTER student’s graduation.
Maximum employment period for M-1 is 6 months
Must file I-765 with USCIS to get employment authorization no later than the date of completion of the program
May not begin until USCIS approves I-765 application and grants EAD card
