NON-IMMIGRANT VISAS

Family-Based Non-Immigrant Visas

K-1 Visa
A fiancé(e) of a U.S. citizen is eligible for a K-1 Visa, which allows a fiancé to come into the United States to marry the petitioner within 90 days of entry in the United States.   The application process for K-1 Visa generally takes between 4-24 months depending on the nationality of the fiancé(e).

K-3 Visa
A spouse of a United States citizen is eligible for a K-3 Visa. A K-3 Visa allows a spouse of a U.S. citizen to enter the United States while awaiting the results of a pending “Green Card” application.   The application process for K-3 Visa takes between several months to one year.

V Visa
A spouse or child(ren) (unmarried and under 21 years of age) of Legal Permanent Residents who have been waiting for more than three years for their priority date to become current can qualify for the V Visa.   The V Visa allows the immediate relatives of the Legal Permanent Resident to enter the United States legally to live and to work while they complete the wait for their priority date to become current.   At that time, the V Visa spouse or child may adjust his or her status without leaving the United States.

Non-Immigrant Visas for Studying

The following are nonimmigrant (temporary) visas available for individuals seeking to enter the United States for academic study, vocational training or exchange programs:

F Visa
The F-1 Visa is a nonimmigrant visa for academic or language training students qualified to attend full-time college, university, conservatory, academic high school, and any institutions with language training programs in the United States.   The F-1 Visa is the most popular visa for the purpose of pursuing study in the United States.   Among other requirements, the applicant for an F-1 Visa must have been accepted to a school specifically approved by the USCIS and must be able to show that he/she has sufficient funds to cover all school and living expenses while studying in the United States.   Additionally, once granted an F-1 Visa, the international student is severely limited in the type and conditions of work that he/she can accept without falling out of status.

M Visa
M Visa is a nonimmigrant visa granted to those pursuing nonacademic or vocational studies in the United States.   Through the M Visa, a student has an opportunity to receive training in the United States to strengthen his or her technical and vocational skills.   Students must attend a USCIS approved school to obtain M Visa and these schools are usually those that offer vocational and technical training.   Like the F-1 Visa holder, an M Visa holder must prove that he/she has sufficient funds to cover all school and living expenses for the entire period of intended stay.

J Visa
The J Visa is granted to exchange visitors coming to the United States temporarily to study, teach, research, or to receive training under the sponsorship of a university, private company, the U.S. government, or the foreign national’s own government.   The organization sponsoring the foreign national under the J Visa must be approved by the government. The purpose of the J Visa is to allow foreign nationals to participate in educational programs in the United States.   Under the J Visa, there are different categories. Examples of categories under the J Visa are: professors, research scholars, physicians, college and university students, camp counselors, au pairs, government visitors, and international visitors.   Many of the J Visas require that the visa holder return to his or her home country for two years after the completion of his or her stay in the United States. Some categories do not have this requirement and some categories can request a waiver.   The attorneys at CLARK CASTALDI PLLC can assist an applicant to determine if the J Visa is right for the applicant’s goals as well as assist current J Visa holders to determine if the two-year “return home requirement” applies and what waivers may be available.

Temporary Work Visas

There are many temporary work related visas designed to allow professionals to enter the United States for employment purposes.   Individuals can apply for different visas depending on work related abilities, employment status, and investment criteria.   In many cases, workers come to the United States on a temporary visa and then subsequently apply for an immigrant visa to gain Legal Permanent Residency.

Some temporary work visas require no intent to remain the United States permanently.

H-1B Visa (Professional in a Specialty Occupation)
The H-1B Visa is issued to those who wish to temporarily work in the United States as a professional in a specialty occupation.   Currently, the number of H-1B Visas granted is capped at 65,000 per year.   An additional 20,000 visas are available to international students who have graduated from higher education institutions in the United States.   Some H-1Bs can be cap-exempt if the beneficiaries’ employment is found to be in the national interest.   Some examples of specialty occupations include accountants, physicians, physical therapists, engineers, and scientists.

H-1B Visa requirements include:

• Applicant must be coming to the United States to perform services in a specialty occupation with a college degree or its equivalent in work experience, be a distinguished fashion model, or provide services related to a Department of Defense cooperative research and development project or co-production project;
• Applicant must have a job offer from a qualified U.S. employer for work to be performed in the United States and must be paid according to market value;
• Applicant must have the requisite background to qualify for the job offered;
• Applicant employer must have filed an attestation with the Department of Labor; and
• Applicant’s job must require a bachelor’s degree or higher, and the level of education must be standard in the industry or among similar positions in similar organizations.

H-1C Visa (Nurses)
Nurses with a job offer from a qualifying hospital may qualify for an H-1C Visa. The H-1C Visa program was renewed on December 20, 2006 for an additional three years. The total number of H-1C nonimmigrant visas is limited to 500 each fiscal year (October 1 through September 30).

The requirements for the beneficiary nurse include:

• The beneficiary must have obtained a full and unrestricted license to practice professional nursing in the country where he/she obtained nursing education, or the beneficiary must have received nursing education in the United States;
• The beneficiary must have passed an appropriate examination (recognized in regulations promulgated in consultation with the Secretary of Health and Human Services) or have a full and unrestricted license under state law to practice professional nursing in the state of intended employment; and
• The beneficiary must be fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States and be authorized under such laws to be employed by the facility.

An H-1C Visa petition may be filed by a U.S. employer hospital or facility which has filed an attestation with the Department of Labor (DOL). USCIS will rely on the determination made by DOL when DOL reviews the attestation.

H-2A and H-2B Visas (Seasonal Agricultural and Other Workers)
H-2A Visas allow agricultural workers to work in the United States in temporary or seasonal agricultural positions. H-2B Visas allow unskilled workers to work in the United States to fill an offered position for a temporary period (i.e., one-time, seasonal, peak load or intermittent). The employer may file one application for multiple beneficiaries if the workers meet certain specified conditions. The beneficiaries may return each season for up to three years. There is no annual cap for H-2A Visas. There is a cap of 66,000 each year for the H-2B Visas.

L-1 Visa (Manager, Executive, or Specialized Knowledge)
An L-1 Visa is granted to people who have worked outside of the United States as a manager, executive, or in a position involving specialized knowledge, and are now seeking to come to the United States to work in a related U.S. company in the same capacity. Many international companies use the L-1 Visa to transfer their executives, managers, or workers with specialized knowledge to the United States.

L-1 Visa requirements include:

• Applicant is an executive, manager, or in a position involving specialized knowledge;
• Applicant has been employed continuously for at least one year within three years preceding the time of the L-1 Visa application;
• The company outside the United States is related to the U.S. company in some form (parent-company, branch, affiliate, subsidiary, etc.);
• Applicant seeks to enter the United States temporarily; and
• Applicant will continue to work for that company as an executive, manager, or in a position involving specialized knowledge while in the United States.

E Visa requirements include:

• A treaty must exist between the United States and the country in question;
• Majority ownership or control of the investing or trading company must be held by nationals of the foreign country;
• Every employee or principal of the company seeking E Visa status must be a citizen of the foreign country where the company is based; and
• The “nationality” of the company engaging in trade or investment is the nationality of those persons who own at least 50% of the stock of the corporation, while the nationality of the persons owning the corporate stock is their country of citizenship.

The application process for temporary work visas includes the applicant filing a petition with United States Customs and Immigration Service.   For several of the temporary work visas, a Labor Certification Application filed with the Department of Labor is also required.   The application waiting period will fluctuate but in general, the wait is several months. USCIS offers an option for premium processing.   For an additional $1,000 fee, USCIS will process the petition in 15 days.

At CLARK CASTALDI PLLC, our experienced attorneys work with the applicant to submit the most complete and thorough petition, which emphasizes the applicant’s education, qualifications, and experience. In addition, our attorneys know the processes and procedures needed to work with various government agencies to ensure the best possible outcome.

Specialty Temporary Work Visas

O Visa (Aliens with Extraordinary Ability)
The O Visa is for aliens with extraordinary ability in the sciences, arts, education, business, or athletics, certain aliens accompanying or helping those aliens, and their family members.   There is no quota on the number of O Visas issued each year.

The O-1 Visa can be given only on the basis of individual qualifications.   There are three standards for the O-1 Visa.   The most difficult standard applies to those persons in the sciences, education, business, and athletics; a much less difficult standard applies to individuals in the arts, and a medium-level standard applies to those of extraordinary achievement in the motion picture or TV industries.   There are a wide variety of requirements for the first category, but for the second category, that of aliens of extraordinary ability in the arts, the alien must show “distinction” in the field, as evidenced by a degree of skill and recognition substantially above average such that a person is described as prominent, leading, or well-known in the field of arts.

The O-2 Visa is for individuals who will accompany and assist in the artistic or athletic performance of an O-1 alien.

P Visa (Entertainers and Athletes)
The P category covers entertainers and athletes who cannot meet the standard for extraordinary ability in the O category.

The P-1 Visa is given to athletes who compete individually or as part of a team at an internationally recognized level, and also to aliens who perform with, or are an integral and essential part of the performance of an entertainment group that has received international recognition as “outstanding” for a “sustained and substantial period of time.”   An individual athlete may qualify for this visa, but an individual entertainer cannot—he/she must be part of a group. Both types of applicants must submit proof of their status as athletes or entertainers.

The P-2 Visa covers artists and entertainers who wish to be admitted through a reciprocal exchange program between a foreign and U.S.-based organization that are engaged in the temporary exchange of artists and entertainers.

The P-3 Visa covers artists and entertainers who will perform “under a program that is culturally unique.” The P-3 alien must be coming to the United States to perform, teach, or coach in culturally unique events.

R Visa (Religious Workers)
The R Visa allows religious workers to come to the United States temporarily to work in religious occupations. Examples of R Visa religious workers are ministers, monks, nuns, missionaries, and religious brothers and sisters.

R Visa requirements include:

• The religious worker must have been a member of a religious denomination having a non-profit religious organization in the United States for at least two years immediately preceding the filing of the R-1 Visa application;
• The petitioning U.S. organization must be a non-profit religious organization that is tax exempt, or one that would be tax exempt if it had applied; and
• The religious worker must enter the United States to pursue a religious vocation or occupation, and prove that there are sufficient funds to support the religious worker’s financial needs without recourse to employment other than the religious work for which the visa is granted.
  
  

Specialty Temporary Work Visa Application Process
The application process for the specialty temporary work visas includes the sponsor and/or applicant filing a petition with USCIS.   The application waiting period will fluctuate but in general, the wait is several months.   USCIS sometimes offers an option for premium processing.   For an additional $1,000 fee, USCIS will process the petition in 15 days.

At CLARK CASTALDI PLLC, our experienced attorneys work with the sponsor and/or applicant to submit the most complete and thorough petition, which emphasizes the applicant’s education, qualifications, and experience.   In addition, our attorneys know the processes and procedures to work with various government agencies to ensure the best possible outcome.