NIV Visas

This is a diplomatic visa for individuals employed by their home government to enter the USA for diplomatic purposes.

With the exception of a Head of State or Government — who qualifies for an A visa regardless of the purpose of travel — your position within your country’s government and your purpose of travel determine whether you need an A-1 or A-2 visa. Immediate family members of diplomats and government officials receive A-1 or A-2 visas, with few exceptions. Personal employees, attendants, or domestic workers for diplomats and government officials (holding a valid A-1 or A-2 visa) may be issued A-3 visas.

Generally, you will need to work directly with your government to obtain an A visa.

This visa is generally known as the Business visitor to the United States. Individuals from all countries are eligible, except for those who qualify as an ESTA/Visa Waiver. The B1 visa is generally used to:

• Consult with business associates
• Attend a scientific, educational, professional, or business convention or conference
• Settle an estate
• Negotiate a contract

The application process varies by Consulate, however, you can generally submit a DS-160 application online and then schedule an interview.

If you are visiting the United States on a B1 visa, you are eligible to stay for the time period stamped in your passport.  If you do not have a stamp you will need to check your digital I-94 which is available online through the CBP website, using your passport number and date of birth. You should know your final date of status so that you can file an extension in advance should you need more time to complete your business activities. Keep in mind that the maximum time period, for one trip, is one year.

This is the Tourist visa, allowing individuals to come to the Untied for limited period of time to engage in tourist activities. Individuals from ESTA/Visa Waiver countries generally should use the ESTA process for tourist visits. Tourist activities include:

• Tourism;
• Vacation (holiday);
• Visit with friends or relatives;
• Medical treatment;
• Participation in social events hosted by fraternal, social, or service organizations;
• Participation by amateurs in musical, sports, or similar events or contests, if not being paid for participating; and
• Enrollment in a short recreational course of study, not for credit toward a degree (for example, a two-day cooking class while on vacation)

Similar to the B1 visa, the short visit is normally limited to six months, with a one year maximum permitted by law.

The application process varies by Consulate, however, you can generally submit a DS-160 application online and then schedule an interview.

You should know your final date of status so that you can file an extension in advance should need more time to complete your tourist goals. If you do not have a stamp you will need to check your digital I-94 which is available online through the CBP website using your passport number and date of birth.

The Border Crossing Card (“BCC”) qualifies as both a BCC and as a B1/B2 visa. The BCC (also referred to as a DSP-150) is issued as a laminated card, which has enhanced graphics and technology, similar to the size of a credit card. It is valid for travel until the expiration date on the front of the card, usually ten years after issuance. To qualify:

• Must be a citizen and resident of Mexico;
• Valid Mexican passport;
• Must meet the standard B1/B2 requirements;
• Demonstrate, through documentation, very strong ties to Mexico;

The BCC is highly scrutinized and requires travel history, strong ties, and a good interview. To receive this visa, you should be able to express yourself well in the interview to impress a normally skeptical Consular Officer.

Normally not eligible for extension, however, entry on a BCC can lead to other opportunities including Change of Status and/or adjustment of status in the immediate relative category.

The CNMI-Only Transitional Worker (CW-1) visa classification allows employers in the Commonwealth of the Northern Mariana Islands (CNMI) to apply for permission to employ aliens who are otherwise ineligible to work under other nonimmigrant worker categories.

To qualify, employers must:

• Obtain an approved temporary labor certification (TLC) from the U.S. Department of Labor (DOL) and consider all available U.S. workers for the position;
• Be engaged in a legitimate business, including participation in the E-Verify Program, as defined at 8 CFR 214.2(w)(1)(vii);
• Offer terms and conditions of employment consistent with the nature of the employer’s business in the CNMI;
• Comply with all federal and CNMI requirements relating to employment. Examples include: nondiscrimination, occupational safety, and minimum wage requirements;
• Pay reasonable transportation costs if the alien is involuntarily dismissed from employment for any reason before the end of the period of authorized admission; and
• Comply with the semiannual reporting requirement by timely filing Form I-129CWR, Semiannual Report for CW-1 Employers.

An alien may be classified as a CW-1 nonimmigrant during the transition period, beginning on Nov. 28, 2009 and ending on Dec. 31, 2029, subject to the CW-1 cap, if he or she:

• Is ineligible for any other employment-based nonimmigrant status under U.S. immigration law;
• Will enter or stay in the CNMI to work in an occupational category designated as needing alien workers to supplement the resident workforce;
• Is the beneficiary of a petition filed by a legitimate employer who is doing business in the CNMI;
• Is not present in the United States, other than the CNMI;
• Is lawfully present in the CNMI if present in the CNMI; and
• Is admissible to the United States or is granted any necessary waiver of a ground of inadmissibility.

Generally, an alien classified as a CW-1 nonimmigrant may not be employed in a construction and extraction occupation, unless the alien is a long-term worker who was admitted or otherwise granted status as a CW-1 during each fiscal year from 2015 through 2018 (Oct. 1, 2014 through Sept. 30, 2018)

This visa is very specific, requires an employer and will likely be approved if you can show the CNMI connections and the proper job duties. Definitely consult with an attorney if you are planning on filing this visa.

This is a visa for crew members of ships and planes to arrive in the United States for a limited stay of less than 29 days, normally scheduled to depart on the same vessel. Often these crew members are granted a transit visa C-1 which allows them to enter the USA to transit to another carrier/vessel.

You will not qualify for this type of visa if you are coming to the USA for:

• Dry Dock repairs;
• Fishing vessel with home port in the USA;
• Private Yacht staying in the USA more than 29 days;
• Outer Continental Shelf – crew members in transit to the Outer Continental Shelf are not granted a D visa.

It is best to obtain a B1 visa is you are seeking to enter for these purposes. The application process will be through your local Consulate on a form DS-160

The E1 visa is for individuals from select countries to enter the USA to engage in a business that trades primarily between the USA and the individual’s home country. This Treaty Trader Visa requires a US business, typically a corporation, that is owned 50% by a foreign national.  You must be coming to the United States to engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the United States and the treaty country.

Basic qualifications:

• You must be a citizen of a treaty country.
• The trading firm for which you plan to come to the United States must have the nationality of the treaty country, meaning persons with the treaty country’s nationality must own at least 50 percent of the enterprise.
• The international trade must be substantial, meaning that there is a sizable and continuing volume of trade.
• More than 50 percent of the international trade involved must be between the United States and the treaty country.
• Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.
• You must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

The E-1 visa is tricky because you can apply for it inside the USA directly with USCIS or you can apply directly to a U.S. Consulate in your home country. Be advised this can be confusing and result in a waste of time and money if you do not plan properly.

The E-1 requirements allow attorneys to consult with clients well in advance of the filing to develop the business plan, gather evidence and strategize on how and when to file the case.  This visa requires an attorney far in advance to plan for the owners, employees and U.S. staff to be properly hired, vetted and paid.  While these visas are complex, they are normally approved where the business activities are visible and well documented.

Both the E1 and E2 visas can be obtained for owners and employees of E qualifying companies.  Talk to an attorney to review the E employee qualifications.

The E2 visa is for individuals from select countries to enter the USA to develop and direct a business, as an owner or employee. Similar to the E1 visa the business must be a foreign-owned corporation, and there must be substantial investment made in the United States corporation. Once again there are detailed requirements:

• The investor, either a person, partnership, or corporate entity, must be a citizen of a treaty country.
• If a business, must be at least 50 percent owned by persons with the treaty country’s nationality.
• The investment must be substantial, with investment funds or assets committed and irrevocable. The investment must be sufficient to ensure the successful operation of the enterprise.
• The investment must be in a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative, or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
• It must generate significantly more income than just to provide a living to you and your family, or it must have a significant economic impact in the United States.
• You must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
• You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

The E-2 visa presents the same challenge as the E-1 visa in that it has dual jurisdiction. This means that you can process a case at a US Consulate or you can process a case with USCIS – however you cannot take a USCIS approval to the Consulate for a visa as you could with almost any other NIV case.  Instead, if you have an approval from USCIS, you can simply use it to live and work in the USA but you cannot use it to travel. This will require consultation with an attorney to properly strategize and plan the filing since you will likely need to file both.

The common question we get on the E visas is not about how to qualify, but about where to file and planning for the two different types of filings. Importantly, the Consulate bases their decision on the standards in the Foreign Affairs Manual while USCIS bases their decision on the standards in the INA and federal regulations.

This visa is unique to citizens of Australia. The visa is roughly the same as the H1b (see below), but since it is for Australian citizens only, it has a lower level of demand. To qualify you must:

• Be a national of Australia;
• Have a legitimate offer of employment in the United States;
• Possess the necessary academic or other qualifying credentials;
• Will fill a position that qualifies as a specialty occupation.

To apply for the position, you will need to file an LCA, which will set the wage for the position, and then USCIS can approve the petition. As always, details and supporting documents are required for a successful application. Don’t rely on being Australian with a bachelor’s degree to qualify. It takes a lot more than that!

The visa is valid for two years and spouses of E3’s are eligible for a work permit. You will need to file the work permit, known as the employment authorization document or EAD once you are already in the United States. There is no time limitation on the E3 visa, however you should consult with an attorney just to make sure you can show ties to your home country and non-immigrant intent.

Similar to the H1b, the E3 employee can change their employer through a filing with USCIS once you are already inside the USA. Keep in mind that changes to employment may require an amended filing.

The student visa allows an individual to enter the USA to engage in full-time study at a qualified US school. The student visa is normally valid for 5 years and requires a form I-20 at all times from application throughout your status as an F1 in the USA. Students normally begin the process by enrolling in school and obtaining an I-20 through the SEVIS system. After that, you will need a Consular interview before traveling to the USA.

Upon arrival at a port of entry, a student has to show an I-20 along with a visa to enter the US.  Thereafter, all travel on the F1 will require a valid I-20 showing ongoing status in a full-time program. Students cannot travel on ESTA or a tourist visa. It is important to know the rules and stay in your lane.  In this case, always be aware of your F1 status which is found on the I-20. Your visa is valid for five years at a time and granted by a US Consulate.

CPT or Curricular Practical Training is a part-time work authorization that schools grant to foreign students based upon their program and degree requirements. While international students are permitted to work on campus, this is limited. CPT is specific permission to work off-campus, often as part of an internship program. CPT in some graduate programs can be full-time, but you should check with your Designated School Official (“DSO”) to find out how to qualify and what limits if any relate to CPT.

OPT or Optional Practical Training is permission to work while on the F1 visa. While a DSO recommends OPT in SEVIS, it is the student who must apply for the work permit with the USCIS. If the OPT is approved, USCIS will issue an EAD. The student must not begin working before the start date on the EAD.

Pre-completion OPT is work permission prior to completion of a program. This can be part-time or full-time authorized employment, but should be carefully reviewed because pre-completion OPT can preclude post completion OPT in some circumstances.

Post-completion OPT is work authorization for a period of 12 months granted after completion of a program. There are a variety of rules that apply to OPT and it is extremely important that students work closely with their DSO to apply properly and on time. We recommend that students plan for OPT in their Junior year to ensure they will qualify.

STEM OPT is a two-year extension available to students who graduated in designated fields which are classified by their school as STEM related. This additional two years has specific filing requirements different from post-completion OPT such as E-verify and the training program form. STEM OPT is a huge benefit and students should be aware of this when they begin their school program. It is essential to know exactly which programs are designated as STEM since school programs can vary. Check with your DSO because they will know how your program is designated in the SEVIS system.

Reinstatement of student status – it is common that some students have an unexpected incident such that they fail to maintain full-time student status. This can be difficult since F1 students must maintain a full-time course load to be in valid status. If a student does drop below 12 units they may be told that they are out of status. It is very important to contact an attorney to quickly address this issue. Under the law, student can apply to reinstate student status, but they must do so within 5 months and they must have a new I-20. This is one of those situations where you have to work with your school and work with an attorney.

Keep in mind that a short period of study can fit into the B2 visa while shorter programs can also fit into the M visa. There is plenty more to talk about with student visas, just call an attorney if you get lost!

If you don’t know it already, the H1b is the most sought-after work visa. It is (in)famous in its own way.  Some fast facts:

• Limited to 65,000 visas plus 20,000 additional for US master’s degrees (85,000 total);
• Lottery held in April each year, and the selection rate ranges from 25% to 37%;
• Visa begins in October of each year, and is valid for 3 years and can be renewed (with exception);
• US company employer, must pay proper wage and normally requires a bachelor’s degree;

The truth is that the H1b is most denied visa of all NIV available. The denial rate has grown over the past five years, but aside from that number the H1b simply has the most difficult standards to meet for approval. The regulations make it difficult for almost every job related to a busines degree. The Department of Labor and USCIS have both noted that many business professions do not require a degree, thus the job itself is too low level to qualify for the H1b process. Bottom line – non-STEM jobs may be subjected to a lot more skepticism by USCIS than a STEM-related job. Business analysts, market research analysts and managers are all highly scrutinized, subjected to RFEs and denied at a higher rate than STEM-related jobs.

The other issue always encountered by USCIS is the job site outside of the employer’s office. This “off-site” employment is a major focus on fall USCIS H1b filings. To file this type of case you will need to present contracts between the employer and vendor known as master service agreements (MSA) and statements of work (SOW) along with organizational charts and letters from each vendor involved in any part of the employment. Essentially, in this type of H1b case, USCIS will want to hear from every connected party and review original documents that lay out the contractual relationships between the parties.

Cap Exempt H1b is a specific type of H1b wherein an employer who is a non-profit, associated with a college or university is permitted to file H1b petitions outside of the numerical limitations. If you think you have a cap exempt H1b employer, you should contact an attorney right away.

AC21 is a law passed in 2001 that amended the rules for H1b’s and employment-based green cards.  AC21 allows the following:

• Extensions beyond six years on the H1b work visa;
• New employer to recapture the priority date from an employee’s past labor certification;
• Allows employees to “port” employment during the green card process to a new company.

The H1b visa is rule specific. Approvals require creativity with a heavy emphasis on documentation.  Call your lawyer early to get started on this process.

This is a specific visa for individuals from Singapore and Chile.  It has a specific process, but is closely related to the H1b visa. If you think you qualify, call an attorney because there is a lot to sort out including the annual cap limits.

This is a seasonal agricultural worker visa. It is good for limited period of time (usually 4 – 8 months) and is also limited to citizens or nationals of designated countries.

These visas are offered twice a year for winter season resorts and summer season resorts. These visas fill up quickly as many resorts have specific slots to fill for the visa. It is for temporary or seasonal non- agricultural work. Limited to citizens or nationals of designated countries, with limited exceptions, if determined to be in the United States interest.

The H3 training visa is for foreign nationals to receive training the United States.  There are two types of H3 visas generally available.

• Trainee to receive training in any field of endeavor, other than graduate medical education or training, that is not available in the alien’s home country.
• Special Education Exchange Visitor to participate in a special education exchange visitor training program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.

This classification is not intended for US employment. It is designed to provide an alien with job-related training for work that will ultimately be performed outside the United States. The process for the H3  requires a detailed training plan that will include classroom instruction and teaching from trained instructors. The difficulty is in finding a balance between classroom training and on the job learning.   This visa requires a well-educated employer who understands the regulations and is ready to develop a real and detailed training plan.

Probably the most underrated visa available to foreign nationals working in film and media.  The I visa allows representatives of foreign press, radio, film, or other foreign information media to enter the United States in connection with the news gathering process, as well as informational or educational documentary films or a television series.

Most often we see this visa held by journalists and reporters, but it also includes members of a media or documentary film crew, video tape editors, employees of independent production companies, or anyone essential to the foreign information media function. The category includes online, print and film activities. The foreign media organization which the I visa applicant is representing should have a home office outside the United States.

Typically, the I visa has been used by individuals with foreign press credentials to enter the US to report for their foreign media outlet. However, this visa is very versatile since it can also be used for documentary film makers.

I visas are normally valid for five years, however, the length of time can vary depending on the Consulate. If the I visa holder leaves the foreign media organization that sponsored them, the I visa will no longer be valid as it is specific to their work for the sponsoring foreign media organization.

This is a very diverse visa category that can apply to:

• Professors and research scholars
• Short term scholars
• Trainees
• Interns
• Teachers
• College Students
• Secondary School students (host family)
• Specialists
• Foreign National Physicians
• Camp Counselors
• Au Pairs
• Summer Work Travel Programs
• Government Visitors
• International visitors

Most often these programs are hosted by a US company that has been given a charter by the US Department of State for specific functions. For this reason, you may see many host companies who will assist in the visa process.

One aspect of the J1 visa is the return home requirement noted under section 212(e). Since the J1 visa has a cultural exchange element, foreign nationals normally have a return home requirement. This requirement can be waived when you obtain the DS 2019 as part of the visa approval process. When it is not waived, foreign nationals must file a waiver of the return home requirement under:

1. No objection;
2. Request by US government agency;
3. Persecution if you return home;
4. Exceptional hardship to US spouse or child;
5. Designated by a State Public Health Department.

Each of these categories has many details and requirements, so it is best to work with an attorney during this process.

This a visa for a fiancé of a US citizen. The process starts with a petition in the United States and ends with a Consular interview where the fiancé must prove a physical meeting within the past two years. The major benefit is that if you enter on the K1 visa you can skip the I-130 which is the first step of the green card adjustment process.

Individuals married to a United States citizen can enter the USA to complete the green card process inside the USA.

The L1A visa classification is reserved for intracompany transferees who are seeking to enter the US as international executives. There are two basic components to an L1A petition: (1) a qualifying corporate relationship, and (2) a beneficiary with qualifying employment. The corporate relationship requires an overseas company that is connected to a US company through affiliation or other ownership interest.

This is only the first of several complex requirements. The second aspect of this visa is the requirement that the beneficiary work as an executive overseas and will be coming to the US to work in an executive capacity. As you may have guessed, these words have very specific meanings in immigration law. As a result, this part of the case must be very specific.

Executive Capacity means an assignment in an organization in which the employee primarily:

1. Directs the management of the organization or a major component or function of the organization;
2. Establishes goals and policies of the organization, component, or function;
3. Exercises wide latitude in discretionary decision-making; and
4. Receives only general supervision from higher-level executives, board of directors, or stockholders of the organization.

Since the L1A does include individuals who are “managers,” this title has a separate definition.

Managerial capacity has been defined to mean an assignment with an organization in which the employee personally:

1. Manages the organization, or a department, subdivision, function, or component of the organization;
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
3. If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, function at a senior level respect to the function managed; and
4. Exercises discretion over day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in the managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professionals.

The L1A is a very complicated visa.  We have had many different types of clients qualify for this visa, but once again it takes careful planning to get an approval in this category.

The L1B is for a foreign worker coming to the US to perform services as an employee applying specialized knowledge for a US branch of a multinational company. It is not enough to have an agent or office in the US and abroad to meet the definition of “doing business.” Rather, the company petitioning the L1B visa should be actively providing goods and/or services and earning revenue.

In this type of case we need to establish:

1. that the US company is a qualified organization; and
2. that the occupation requires the application of “specialized knowledge.”

The employee must have one year out of the last three working overseas and must show knowledge that is secret or proprietary. Usually we want something unique about the employer’s products, services, or management style to qualify for this visa. An L1B visa is issued initially for three years with one two-year extension for a maximum stay of five years.

The L1B is a very narrowly defined visa, but it can also fit into so many different situations. The best way to analyze an L1B is to first check off the “1 in 3” and the overseas relationship. If you have those aspects well-documented, you should contact an attorney to discuss the specialized knowledge part of the case.

This visa is similar to an F1 but it is normally for programs that have shorter duration. M1 visa holders will process similar to an F1 and will only qualify for a limited post-completion OPT. You should work with your school to ensure you are on top of all the requirements and properly maintain status while in the US.

This visa applies to individuals of extraordinary ability in the arts, sciences, business, education and athletics. The visa itself is very broad and includes different standards for artists (distinction rather than expertise and top of the field).

The intercultural exchange visa applied to individuals who will be working for a limited time in a way that promotes cultural exchange and understanding. This visa has few requirements, which means the cultural component is the most important aspect of the case. We have seen teachers, performers, and large-scale acts qualify for the Q visa. The Q visa will require you to return home.

To establish eligibility as a qualified employer, an employer must:

1. Have the ability to maintain an established international cultural exchange program;
2. Have designated a qualified employee as a representative responsible for administering the program and serving as liaison with DHS;
3. Currently be doing business in the United States;
4. Certify that the participant wages and working conditions are comparable to those accorded local domestic workers similarly employed; and
5. Must have the financial ability to remunerate the participant.

These are some basic requirements for this visa. The Q visa has other requirements for various types of programs. It is best to consult with an attorney to see if your program qualifies.

An R-1 is an alien who is coming to the United States to be temporarily employed as a minister or in another religious vocation or occupation at least part time (average of at least 20 hours per week) by:

• A non-profit religious organization in the United States;
• A religious organization that is authorized by a group tax exemption holder to use its group tax exemption; or
• A non-profit religious organization that is affiliated with a religious denomination in the United States.

This visa program is intended for religious workers whose lives are dedicated to religious practices and functions, as distinguished from secular members of the religion.

To qualify, the alien must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately before the filing of the petition.

An S nonimmigrant is an individual who has assisted a law enforcement agency as a witness or informant.

T nonimmigrant status is a temporary immigration benefit that enables certain victims of a severe form of human trafficking to remain in the United States for up to 4 years if they have assisted law enforcement in an investigation or prosecution of human trafficking. T nonimmigrant status is also available for certain qualifying family members of trafficking victims.

The United States created the TN visa based upon the NAFTA Treaty signed in 1993 between Mexico, the United States and Canada. The TN visa is specifically for citizens of Mexico and Canada coming to the United States to work. The visa is an excellent way to get working in the US since it has a low amount of paperwork and a lot flexibility in how you can get this visa approved.

The basic requirements of a TN are as follows:

• Citizen of Canada or Mexico;
• Individual must be a professional with specific education;
• The position in the United States must normally require a professional; and
• Must have a prearranged full-time or part-time job with a US employer.

Many clients contact us to talk about the Management Analyst position on the TN. Be warned this is a highly scrutinized type of TN and has very specific evidentiary requirements. We advise, at a minimum, the following evidence:

1. A detailed description of anticipated business activities or job responsibilities;
2. Anticipated length of stay in the United States;
3. Educational qualifications or appropriate credentials demonstrating professional status;
4. Arrangements for wages/salary.

The TN does not have a lottery, nor is there any limit to the years you can spend on a TN visa. You must have valid employment and you should have a clean immigration history.

We have had success with the TN for Engineering Tech positions, but be warned it is not as easy as a normal TN and we win because we are very specific about what you need to qualify for this type of case.

This is a visa for individuals who are victims of a qualifying crime in the United States. In order to apply for the U visa, you must obtain a supplement signed by a judge, police officer, prosecutor or other official, certifying that you have cooperated with law enforcement and provided all information that will be useful to bring the perpetrator to justice.

Obtaining this certified supplement can be difficult and may need an attorney experienced in this area to navigate the process.